Justice Chandrashekhar Dharmadhikari A Living Legend

Sheshrao Chavan

Dedicated to the memory of Smt. Tara Dharmadhikari

Chandrashekhar Dharmadhikari is surrounded by darkness, because the Nanda Deep in his life was extinguished by the sad demise of his sweet heart Tara on 2nd April 2007. Tara had been suffering from cancer for a long time. She fought her cancer with typical fortitude and courage. The way she smiled and kept up her cheerful attitude until she breathed her last was almost an attitude of a Saint. Her fortitude, her courage and her irrepressible faith in God remained unshaken up to the end.

Blessings of Acharya Dada Dharmadhikari

Today everywhere, all concerned resort to all sorts of tactics to bring political, economical and social pressure on Judges. Muscle power seems to strengthen society at large. Under such circumstances, may the virtuous deeds and merits of your mother and Babasaheb, give you strength to face evil rampant everywhere.

Award

Ramashastri Prabhune

Award

Padmabhushan

Causa)

Doctor of Laws (Honoris

Other Awards and Honors
Government of Maharashtra Literary Award 1976-77, 2002-03. Karandikar Trust Dharwad Literary Award. Distinguished Citizen Award of Rotary Club of Bombay, Gopal Krishna Gokhale Award, Gandhi Jan Award, Gosewa Ratna Puraskar, Rashtra Gaurav Puraskar (World Peace Movement Trust) Bharati Gaurav Puraskar, Ashirwad Rajbhasha Gaurav Puraskar, Justice Ranade Samaj Seva Puraskar, Durgadevi Saraf Samaj Seva Puraskar and Bhausaheb Dhamankar Prerana Puraskar, for Samaj Seva Kustha Seva and Social Awareness. Worker’s Union,

Michael John Gold Medal by TATA Jamshedpur.

National Gandhi Fellowship by Gandhi Smriti & Darshan Samiti, New Delhi. Was invited to deliver Key-note address in BruhanMaharashtra Mandal 1999 Convention, San Jose, Silicone Valley, U.S.A. Visited Japan on the invitation of Japan-Bharatiya Maitri Sangh and Nipponzan Myohoji Trust, Japan. Visited Singapore in connection with India’s Independence Day Celebration and unveiling of Statue of Mahatma Gandhi and Mahatma Gandhi Centre for values at Singapore

of

Visited Malaysia and Japan in connection with Opening of Global Indian International School and unveiling of Statue Mahatma Gandhi.

Contents
Foreword Preface Acknowledgements 20 Ghanchakkar to Freedom Fighter Extraordinary Lawyer A Legendary Judge Bombay High Court – Then and Now 97 Emergency – A Period of Judicial Impotency A True Gandhian Made For Each Other Thought Provoking Views Random Thoughts Gandhian Thoughts Annexure 138 163 200 209 259 289 306 22 40 54 1

RULE OF THE HEART The JUSTICE OF CHANDRASHEKHAR DHARMADHIKARI

by Sheshrao Chavan

RULE OF THE HEART

THE JUSTICE OF CHANDRASHEKHAR DHARMADHIKARI

Sheshrao Chavan

Global India Foundation

Gandhi Smruti & Darshan Samiti

Institute of Gandhian Studies

Published by Global Indian Foundation, Singapore, Gndhi Smruti & Darshan Samiti, Tees January Marg, New Delhi, and Institute of Gandhian Studies, Wardha First Edition: January 2009

Second Edition (Revised): April 2011 ISBN: 978-81-906818-1-0 Design: Trevue Innovations Pte, Singapore Printed at Jak Printers Pvt. Ltd, Mumbai Copyright Global Indian Foundation, Singapore All rights reserved. No part of the material protected by this copyright may be reproduced or transmitted or utilized in any form or by any means, recording, broadcasting or by any other information storage and retrieval system without the written permission of Global Indian Foundation, Singapore. Any person who does any unauthorised act in this relation to this publication may be liable to criminal and civil prosecution for damages under the laws of Singapore and will be referred to the relevant authorities of the Singapore Courts in accordance with the Singapore laws.

Contents
Foreword Preface

Part I
Ghanchakkar to Freedom Fighter

Extraordinary Lawyer A Legendary Judge A True Gandhian Made for Each Other

Part II
Bombay High Court-Then and Now Emergency-A Period of Judicial Impotency Second Freedom Struggle 3 Cs, Cost, Corruption and Caste Appointments, Transfers and Impeachment Code of Conduct Judicial Standards and Accountability

Part III
Thought Provoking Views Judiciary – Present Condition and Future Direction Caste Religious Conversion

Secularism Women Ram Rajya Compromises & Contradictions in the Constitution Principles of Equality in the Constitution Barriers to Indian Nationality Education Educational Institutes Privatization of Education Teachers

Part IV
Random Thoughts Distributive Justice Criminal Tribes Act Adversary System of Trial Concurrent Judgment Element of Chance Religion and Rule of Law

Swaraj – A Distant Dream

Part V
Gandhian Thoughts Annexure Bibliography About Author Acknowledgements

Blessings of Acharya Dada Dharmadhikar Today, everywhere, all concerned resort to all sorts of practice to bring political, economic and social pressure on Judges. Muscle power seems to strength society at large. Under such circumstances, may the virtuous deeds and merits of your mother and Babasaheb give you strength to face evil rampant everywhere.

Dedicated to the memory of Smt. Tara Dharmadhikari Chandrashekhar Dharmadhikari is surrounded by darkness because the Nanda Deep in his life was extinguished by the sad demise of his sweetheart Tara on 2nd April 2007. Tara had been suffering from cancer for a long time. She fought her cancer with typical fortitude and courage. The way she smiled and kept up her cheerful attitude until she breathed her last was almost an attitude of a Saint. Her fortitude, her courage and her irrepressible faith in God remained unshaken up to the end.

Padmabhushan Award

Ramshastri Prabhune Award

Gopalkrishna Gokhale Award

Justice Ranade SEVA Award

Doctor of Laws (Honoris Causa)

Other Awards and Honours
• • • • • Government of Maharashtra Literary Award 1976-77, 2002-03 Karandikar Trust Dharwad Literary Award Distinguished Citizen Award of Rotary of Bombay Gopal Krishna Gokhale Award Gandhi Jan Award

• • • • • • • • • Samiti, New Delhi • • •

Goseva ratna Purakar Rashtra Gaurav Puraskar (World Peace Movement Trust) Bharati Gaurav Puraskar Ashirwad Rajbhasha Gaurav Puraskar Justice Ranade Samaj Seva Puraskar Durgadevi Saraf Samaj Seva puraskar Bhausaheb Dhamankar Prerna Puraskar, for Samaj Seva and Michael John Gold Medal by TATA Worker’s Union, Jamshedpur National Gandhi Fellowship by Gandhi Smruti & Darshan Was invited to deliver keynote address in Bruhan-Maharashtra Visited Japan on the invitation of Japan-Bharatiya Maitri Sangh Visited Singapore in connection with India’s Independence Day

Kushtha Seva and Social Awareness

Mandal 1999 Convention, San Jose, Silicon Valley, U.S.A. and Nipponzan Myohoji Trust, Japan Celebration and unveiling of Statue of Mahatma Gandhi and Mahatma Gandhi Centre for values at Singapore • Visited Malaysia and Japan in connection with Opening of Global Indian International School and unveiling of Statue of Mahatma Gandhi

Foreword
I am very happy that a biography has been written by Shri Sheshrao Chavan on Justice Chandrashekhar Dharmadhikari with the title: Rule of the Heart – The Justice of Chandrashekhar Dharmadhikar. Justice ji or Chandu Kaka, as he is familiarly known, is indeed a living legend. I first met Justice Chandrashekhar Dharmadhikari because of my work with the Global Indian Foundation. We were both in Tokyo in summer 2006 for the opening of the Global Indian International School in Tokyo. Ever since, I have come under his spell. He was the first person who, in many ways, radiated the personality and teaching of Mahatma Gandhi into my heart. He could do this because he himself was soaked in the amrit that Bapuji represented. I have met Justice Chandrashekhar Dharmadhikari many times over the past two years, particularly on our visits to Malaysia and Singapore connected with the work of the Global Indian Foundation. I have, therefore, had occasion to work with him closely, and particularly in matters relating to the education of children. This has been even more so since I took over as President of the Global Indian Foundation, on the sad passing away of Dr. L.M. Singhvi. I accepted this position both on account of the commitment of Dr. L.M. Singhvi to the Foundation and its work, but even more so because of the request made by Justice Chandrashekhar Dharmadhikari; it was a request that I could not refuse.

Justice Chandrashekhar Dharmadhikari had once told me something that I can never forget: that a shoulder on which the hand of Mahatma Gandhi had rested would never bow in any circumstances. His was such a shoulder. And that is what he truly is. He has remained unbowed for the whole of his life, always true to his principles, and always listening to the small inner voice of his conscience. At the same time, he is the most affectionate, generous, courteous, gentle and mild human being that one could ever come across. Justice Chandrashekhar Dharmadhikari is undoubtedly one of Indian’s freedom fighter – so was his family. He has told me of his mother, who had suffered grievously through her incarceration. He was an outstanding lawyer and judge. He became a judge of the Bombay High Court; and could easily have been Chief Justice of the High Court and a Judge of the Supreme Court but for his unbending nature, and the judgment that he delivered true to his principles. There were many freedom fighters, just as there were many other principled lawyers and judges. His claim to being a legend is not because of these roles that he played, but of being a true living Gandhian in our midst. Everywhere that a new school of the Global Indian Foundation is established, Justice Chandrashekhar Dharmadhikari is present; for him, the most important starting point is the installation of the Gandhi statue, or bust, and to have in it an activity relating to Gandhian thoughts and Gandhian values. And that is what he teaches us all the time, in our interactions. When questions are asked relating to a particular situation encountered today, and as to what Mahatma Gandhi would have done when faced with it, there are many steeped in Gandhian thought who would attempt to provide answers, largely based on Gandhiji’s life, writing or past incident. But when such a question is asked of Justice Chandrashekhar Dharmadhikari, the answer comes back, almost as though Bapu had spoken it, wholly relevant to the question and the circumstances that raised it. A large part of this book relates to details of Justiceji’s life, including an account of his wife Tara. However, what comes through are the views and thoughts of Justiceji himself that form the last three chapters of this book. I have had many discussions with Justiceji on Gandhij’s views on science – a topic on which I had given the Gandhi Memorial Lecture at the Raman Research Institute three and a half decades ago. Justiceji clearly states that Gandhiji was not against science. But to be comprehensive: he talks of “Science + Gandhi.” We will continue the debate.

It has been my privilege and good fortune to have known and interacted with Justiceji who learnt his lessons at Bapuji’s feet. Prof. M.G.K. Menon President, Global Indian Foundation 12 January 2009

Preface
In life we shall find many men that are great, And some that are good, But very few men that are both great and good.

Charles Caleb Colten Eighteenth Century English Writer Justice Chandrashekhar Dharmadhikari is the combination of both. Greatness is a hard quality to classify and measure. It has no Richter scale. Not every mover and shaker, not every outstanding achiever, is necessarily great. Star quality and what is called the ‘killer instinct’ are not essential for greatness. What is fundamental to greatness, however, is the impact it invariably makes on others. Milton was only partly right when he said: ‘He alone is worthy of the appellation who either does great things or teaches others how they may be done.’ He should have said ‘and teaches’ instead of ‘or teaches. For an essential feature of greatness is its influence not only on those immediately around but on succeeding generations. The essential feature of Justice Dharmadhikari’s greatness is his influence not only on those immediately around him but on succeeding generations.

A Great Lawyer
Dr. Johnson said: “If a man were to go by chance at the same time with Edmund Burk under a shed to shun a shower, he would say, ‘This is an extraordinary man.’ On the same analogy, it can be said: “If a man were to go by chance in the court and hear Chandrashekhar Dharmadhikari argue for a few minutes, he would say, ‘This is an extraordinary legal mind.” Chandrashekhar Dharmadhikari was invariably full of confidence at the Bar. His arguments were crisp and to the point. He practiced the law as an architect and not like a mason or a tradesman operating on the law of demand and supply. The most conspicuous trait of his advocacy in the court was his clarity of expression and brevity. His suave manners and his familiarity with the law and above all his being a gentleman impressed one and all. He fought many legal battles in important cases. The industrial labour found in him a selfless, devoted and able champion. His services were often sought for and invariably made available for the poor, the down-trodden and the underprivileged. He also fought relentless battles against forces of obscurantism and oppressive social practices and customs.

The excellence of the quality of his advocacy could best be described in terms of an English ditty which says: It is not the eye or lip, We beauty call. But the full effect And the result of all Speaking for the profession of Law, Dharmadhikari says: “Lawyers profession is not a devise to keep the pot boiling, but also a noble vocation. Every lawyer must become a tribune of people. He should command not only their respect, but also their confidence. It is generally believed that lawyers are men who thrive on feuds. But the profession of lawyers can be elevated into a sublime vocation, if they become the real tribune of the people.” Chandrashekhar Dharmadhikari brought to his work nobility which was based on human values and culture, qualities which proved invaluable for his work as a Judge.

A Great Judge
Years ago Herold Laski, in his tribune to Justice Holms described the hall marks of a great judge. A great Judge, he said, must be a great man. He must have a full sense of the seamless web of life, a grasp of the endless tradition from which we cannot escape. He must be capable of stern logic, and yet refuse to sacrifice to logic the hopes and fears and wants of men. He must be able to catch a glimpse of the ultimate in the immediate, of the universal in the particular. He must be statesman as well as jurist, thinker as well as lawyer. What he is doing is to shape the categories through which life must flow and he must have a constant sense of the greatness of his task. He must know the hearts of men, and yet ask to be judged from the conscience of their minds. He must have a constant sense of essential power, and yet be capable of humility in its exercise. He must be the servant of justice and not its master, the conscience of the community and not of its dominant interests. He has to put aside the ambition which drives the politician to search for power and the thinker to the construction of abstract system. No one must be more of the limitations of his material, none more hesitant about his personal conviction. The great judge is

perhaps the rarest of human types, for in being supremely himself he must yet be supremely selfless. He has to strive towards results he cannot control through material he has not chosen. He has to be in the great world and yet aloof from it, to observe and to examine without seeking to influence. At the same time he seeks to make the infinitely small illuminate the infinitely great. Justice Chandrashekhar Dharmadhikati is perhaps the rarest of human types, for being supremely himself, yet he had been supremely selfless. He had been in the great world and yet aloof from it, to observe and to examine without seeking to influence. He made infinitely small illuminate the infinitely great. Describing the qualities of a great Judge, Daniel Webster said: “There is no character on earth more elevated and pure than that of a learned and upright Judge. He exerts influence like dews of heaven falling without observation.” This is the prestige and capability of a Judge and Chandrashekhar Dharmadhikari possessed both in abundance. New York Times called Felix Frankfurter a great Judge not because of the results he reached but because of his attitude towards the process of decision. His guiding lights were detachment, rigorous integrity in dealing with the facts of a case, refusal to resort to unworthy means, no matter how noble the end, and dedication to court as an institution. Justice Dharmadhikari served as a Judge with all his dedication and devotion. One would not believe that during his seventeen years of service, he availed hardly ten days leave. Again one may not believe that he availed Leave Travel Concession (LTC) only once or twice. He considered that the Judgeship is not for enjoyment, contrary to what his brother Judges thought. In delivering his judgments, Dharmadhikari’s role model was Justice Oliver Wendell Holms, who said: “The law is not a brooding omnipotent in the sky, but a flexible instrument of social change. Interpreting laws and considering their validity, Judges should not be oblivious to the felt necessities of time.” Justice Dharmadhikari weighted the scales in balance with supreme impartiality, undaunted by any consideration except that of justice, justice absolute, justice pure and unalloyed. Nothing could sway him, neither mob frenzy, nor the views of the powers. He was a Judge with resolute heart, whose allegiance was to justice and to nothing else. The real test of the independence of the judiciary arises when times are abnormal, when atmosphere is surcharged with passion and emotion, when

important political personalities get involved and when those in power, seek to persecute their opponents under the garb of prosecution and detention. Law knows of no finer hour than when it cuts through formal concepts and transitory emotions to come to the rescue of oppressed citizens. It is then the mettle of a Judge is put to test. Justice Dharmadhikari was one of the very few Judges, who satisfied that test during emergency. He then displayed an indomitable spirit and rare courage. It is said that without courage there can be no truth and without truth there can be no virtue. Till such times as the springs of nation’s faith and hope all dry up, there would always be some whose life is cast in a heroic mould, who provide the profiles in courage, who know how to swim against the current, who put principles above expediency and who are prepared to pay the price for their allegiance to certain values and suffer for their convictions. Justice Dharmadhikari is an embodiment of all these qualities and heavily paid for his values and convictions. The tale of Justice Dharmadhikari’s saga of seventeen long years in the Bombay High Court has been told in the pages of law Journals, magazines and newspapers. However, his work has gone much farther and deeper for it has been woven into the texture of other men’s lives where it will continue to stir them to speech or action as occasions arise. Some of the things, I have tried to say in my prose are so beautifully expressed by Lionel Johnson in his poem ‘A Friend’ that I must let him speak for me: Magnificent and grace Excellent courtesy, A brightness in the face, Airs of high memory, Where came all this, to such as he? No man less proud than he, No cared for homage less; Only, he could not be Far off from happiness: Nature was bound to his success.

A True Gandhian
Justice Chandrashekhar Dharmadhikari had come under the spell of Mahatma Gandhi at the tender age of ten and continues to be under it even after crossing the ripe age of 84. He had good fortune of accompanying Gandhiji in his evening walk from Sevagram to the railway track. At times, Gandhiji placed his hand on Dharmadhikari’s shoulder during the walk, the touch of which he feels even today. Dhamadhikari takes pride in saying that shoulder on which the Father of the Nation placed his hand are not to bend or bow. And he proved true to his pledge in all the circumstance including the emergency. It would not be exaggeration to say that no body has dedicated himself so fully to Gandhian Thought as Chandrashekhar Dharmadhikari. He says: “My inner self witnesses that I have striven conscientiously and diligently to act on Gandhi’s path to my best. Whatever of his thoughts I have been able to assimilate, I have been trying to put in practice every moment in my life. Today, I am doing only his work. My thinking reflects his line of thinking in essence.” He further says: “When I heard the news of Gandhi’s assassination, I told myself that Gandhi has become immortal, and this feeling remains with me to this day. When Gandhi was in the body, I always took some time and efforts to go to see him. Now it takes only a fraction of a second. I shut my eyes and I have Gandhi before me. Now I converse with him frequently and I also feel surrounded by him. After all he had placed his hands on my shoulder. And that is my inspiration.” Dharmadhikari continues: “I do not feel that the inspiration that urged me on during Gandhi’s time has in any way diminished. I do not feel that the zest has flagged. I do not feel despondent or dispirited. Today, my sphere of work has widened but I do not feel that the intensity has in any way diminished.” Dharmadhikari has endeavoured to the best of his ability to follow the path shown by Mahatma Gandhi. He has adopted a simple life as a matter of choice. Voluntary poverty is something difficult for people to understand when they are busy removing their poverty for many births. But Justice Dharmadhikari took the vow of voluntary poverty the day he decided to follow Gandhiji. Many others who took the vow have lapsed from it. He has stuck to it. We must admire him also for fading away from public view in the true spirit of withdrawal and renunciation preached by our ancient tradition. Most of us pay lip sympathy to this ideal but rarely follow it. Here is someone who takes

his ideals seriously, in particular the vows of aparigraha (non-accumulation) and asteya (non-stealing) which Gandhiji used to administer to his followers in his ashrams. He has been going to the very extreme in his striving. There has not been a moment when he has been careless. He has no doubt in his mind that it is Gandhiji’s work that he is doing. This is a great source of happiness to him today. He experiences Gandhiji always with him. In his own words: “Gandhiji is present in essence in my thinking. In studying and pondering what he has said, I get most help from Gandhiji himself.” Dharmadhikari believes: “Gandhiji is present in the hearts of all of us. He has taken the place of God in our hearts. Deity and devotee have become one Living. He had separated himself from God to do the work of service. Now he has become one with God’s man and blesses our work. Let us do our utmost to follow in his footsteps and engage ourselves constantly in self-scrutiny and experiments, purifying our hearts and surrender ourselves to God.” “We have tradition of Shraddha and Tarpan of making offerings to the dead. There is Tarpan for the ancestors and another for Rishi. We perform Shraddha for those who gave us body as also for those who gave us thought, knowledge and devotion. Gandhiji was for us both an ancestor and Rishi. We call him the Father of the Nation and he taught us the philosophy of Satyagraha and Sarvodaya Dharma, so he was also a preceptor and Rishi. The preceptor also through his instructions performs a similar function. Consolidating and enriching the important work that Gandhiji did would be our Tarpan to him as an ancestor; while constantly studying and pondering over his thoughts would be Rishi Tarpan.” says Chandrashekhar Dharmadhikari. Tarpan.”

A True Patriot
Justice Chandrashekhar Dharmadhikari is a patriot of sterling qualities. He is passionately convinced that the unity and integrity of India should be above everything else. He has a grand vision of the different States of India living together in harmony and goodwill. Nothing causes him greater anguish than the sight of Indian States quarreling with one another like the basins in the Medieval Age. Exhibition of communal hatred, linguistic fanaticism, and regional parochialism are anathema to him. Fanaticism, he said time and again, was the greatest danger to India’s unity. Our very existence depended on a widespread acceptance of the secular

ethic which was far wider than more tolerance or sarvadharma samabhava. What the nation needed was civic morality rather than spirituality. He is ready to engage the scholiasts in debate, and is able to match them Sanskrit verse for Sanskrit verse. He says: “So far as our country is concerned, an all-India mind is totally missing. We have several specimens, several varieties except an unqualified, unadulterated Indian mind. Localism is ripe throughout the country. There is no Nationality. Nationality does not consist merely in love of motherland. Such a love is essential but not enough. There are two distinct words: country and nation. The country is geographical concept, whereas the nation consists in the will of the people to live with each other and together. In a nationhood whether other fellowmen want to live with you or not is irrelevant. But one has to take a unilateral decision to live with him. Unless such a will is there nationhood or nationality is not possible. Before Mahatma Gandhi, India was a country. It was he who transformed it into a Nation by uniting people and creating a will among them to live together. This togetherness is the first necessity of social life. It means sharing of will and woe; and the basis of sharing is love, brotherhood and fraternity. So it is familistic, fraternal social order. To say the least, so far as India is concerned, it is Gandhiji who created the spirit of togetherness amongst the Indians. Gandhiji is known as the Father of the Nation. He is not called the Father of Bharat or India. Bharat or India was there even before Gandhiji, but as a country, not as a Nation. It is he who converted Statehood into Nationhood and therefore, he is rightly called the Father of the Nation. Justice Dharmadhikari, in his Swami Ramanand Tirtha lecture series at Nanded said: “The constitution recognizes the equal status of all Indian citizens whatever the province they hail from. But because of linguistic provinces and aggressive regional postures, an Indian citizen drawn from one province is treated as an inferior or second class citizen in another province.” If on the basis of sons of soil theory each province were to organize ‘senas’, the people of other regions in each province would become in inferior citizens. citizens. It pains Dharmadhikari to say: “We have now come to a stage when a citizen speaking a language other than that of the province in which he lives, becomes an alien. What a shame that we should have in our country linguistic refugees…. Even an educated Indian is not accustomed to thinking in terms of

India. No wonder that those who have a passionate regard for India’s unity and integrity ask themselves the question: “Is Indian citizenship a fact or a fiction?”

Voracious Reader
Justice Chandrashekhar Dharmadhikari is a voracious reader. Whenever I visited him, I found him lost in reading. Every room of his flat in ‘Samata’ is full of books on variety of subjects. He has so mastered his reading that whenever he needs any reference, he goes to the shelf and brings the correct book. There would be heaps of books by his side and a few weeks later a new collection would take its place. He does not read for mere pleasure. There is scarcely a book he read on which he has not made his annotations and notes.

Forceful Orator
Justice Dharmadhikari is an accomplished speaker. Words flow naturally to him. He is gifted with a graphic memory. He never makes any notes to serve as aides-memoire. He loves to speak extempore. His thought provoking speeches keep audience spell bound with emotional and sentimental involvement. He is known as a good orator in Hindi, Marathi and English. However, from 15 th August 1947, he decided not to speak in English unless it is necessary, because on that day, Mahatma Gandhi had told the B.B.C. Reporter to inform the world that Gandhi does not understand English. That was not hatred for any language but was part of respect for Indian language: a Swadeshi way of thinking.

Gifted Writer
In all humility, Justice Dharmadhikari says: “None of my books are really mine. I have received something from my Lord-Master, and that I distribute. I am simply sharing with others some part of the wealth of thought I have received. I am just a retail trader, selling the goods I got from Him-the big wholesale dealer.”

Code of Discipline

Justice Dharmadhikari has evolved a code of discipline, which governs his life. Indeed, his life is an example of what one can achieve by sheer dint of hard work and sense of dedication, devotion and commitment. His motto is “work is worship” and precisely for this reason, much against his inclination, I prevailed upon him to let me have privilege of writing his biography, not for his glorification, which he does not need at all, but for the inspiration of younger generation. I am grateful to him for respecting my feelings. In life you meet some one without realizing that destiny will bring you closer to that person, unexpectedly, at a later point of time, in an altogether different context. Swiss psychologist Carl Jung called it ‘Synchronicity.’ Jung calls it the acausal connecting principle-an underlying pattern in meaningful relationship which is not evident initially and cannot be explained in terms of direct causality. Such significant, often life-changing connections happen in everyone’s life. I consider my very fist meeting with Justice Chandrashekhar Dharmadhikari as an example of synchronicity. I cannot resist the temptation of saying that Justice Dharmadhikari’s is a life dedicated to the great thinker’s ideal. I borrow the words of Justice Oliver Wendell Holmes, Jr. that he used to describe another judge: To see as far as one may, To feel the great forces that lie Behind every detail… To hammer out as compact and solid A piece of work as one can, to try to make it first rate, and to leave it unadvertised. (Speeches, 1913) I can hope for no greater reward than that the young readers with their lives before them may find in this volume some material to inspire them to achieve their goal.

About repetition
I have brought out some of the finest thoughts of Justice Dharmadhikari on life-style, judiciary, Gandhian philosophy, National and social problems. The basic ideas and topics recur in different pieces, but I feel that such repetition is inevitable. Repetition of the truth is as necessary as for the preservation of truth

as repetition of breath is necessary for the preservation of life. My only excuse is that they occur in different contexts and cannot be erased because their omission will not make his thoughts easily intelligible. I have however, strived to minimize the repetition to the extent it was possible and desirable. I hope the readers will bear with me. There has been overwhelming response for the first edition of “Rule of the Heart – The Justice of Chandrashekhar Dharmadhikari, which has encouraged me to bring out second revised edition updating it. I dedicate this second edition to Justice Chandrashehar Dharmadhikari on his 85th birth day.

20th November 2011

Sheshrao Chavan

Part I
Ghanchakkar to Freedom Fighter Extraordinary Lawyer A Legendary Judge A True Gandhian

Made for Each Other

Ghanchakkar to Freedom Fighter

Justice Chandrashekhar Dharmadhikari is a worthy son of a worthy father, Acharya Dada Dharmadhikari. He not only inherited all the values of his great father, but also multiplied and refined them to higher planes. Acharya Dada Dharmadhikari moved shoulder to shoulder with Mahatma Gandhi, Vinoba Bhave and Jayaprakash Narayan in freedom movement, bhoodan movement and antiemergency campaign. Dada was the rarest of the rare persons in India, committed to the cause and service to the lowliest and the lost. He followed in letter and spirit the great poet Rabindranath Tagore, who said: “Be it our part to stand for those who suffer For those who are the poorest, lowliest and lost.” Dada Dharmadhikari refused to be the Chief Minister of the old Madhya Pradesh State and also Governor of a State to serve the country in a real Gandhian spirit. He also refused to be the Education Minister in the Central

Cabinet. Not only this, he declined to accept the Padma Award and the Honourary Degree of Doctor of Laws (Honoris Causa) of Nagpur University. He always remained unlabelled uncommon common man. He could have easily gone to England and become I.C.S. or Barrister as his family condition was such that he could have afforded it. His wife Damayantibai was the only daughter of a wealthy landlord – Meerapurkar in Wardha District. Dada was known to be a brilliant student. But he got involved in Gandhian movement right from 1920 and later major part of his life went in freedom movement and in jail. Dada’s children were born in their grand father’s house, wherever he was posted as a Judge. Gandhiji had propounded that both hereditary rights and property are hurdles in the path of socialism and public morality. Patriots, therefore, were never tempted by these mundane things. Many people in those days renounced every thing and accepted voluntary poverty. Dada disowned his share of joint family and preferred to be a teacher in Tilak Vidyalaya on a paltry salary of Rs. Thirty per month. He used to say that property is improperty. The day Dada left college to join Mahatma Gandhi and freedom movement, he pledged to keep himself away from three Ps. i.e. pleasure, power and pelf. He agreed to be a leader of the Congress Party in the Assembly just to honour the desire of Gandhiji. He contested the election as a player in the sports. He said: “The election is like a match and not a war. The candidates must contest like players and not as warriors.” He hardly spent any money in the election. His mode of conveyance in the election was his foot. He neither purchased votes nor took shelter of caste or religion, as is rampantly done today. In the election campaign, he referred only to the Congress manifesto without mentioning or criticizing his opponents contesting the election. Chandrashekhar Dharmadhikari is son of such a noble soul. Dada never wanted his children to be his carbon copy. He firmly believed in what Khalil Gibran said in his poem: Your children are not your children. They are the sons and daughters of Life’s longing for itself, They come through you but not from you, You may give them your love but not your thoughts, For they have their own thoughts, You may house their bodies but not their souls

For their souls dwell in the house of tomorrow Which you cannot visit, not even in your dream You may strive to be like them, but seek not to make them like you For life goes not backward, nor tarries with yesterday You are the bows from which your children are living arrows sent forth The archer sees the mark upon the path of the infinite and He bends you with his might that His arrows may go swift and far Let your bending in the archer’s hand be for gladness For even as He loves the arrow that flies So He loves also the bow that is stable. Chandrashekhar Dharmadhikari had good fortune of moving under the shadow of Mahatma Gandhi, Tapodhan Srikrishnadas Jaju, Yogarudh Kishorilal Mashroovala, Punyashlok Jamnalalji Bajaj, Acharya Kaka Kalelkar, Bhai Dhotre, Sahastrabudhe and Mahadev Desai in Bajajwadi at Wardha. Chandrashekhar Dharmadhikari recollects with pride that he was blessed to accompany Mahatma Gandhi in his evening walk from Sevagram to the railway track. Gandhiji also placed his hand on the shoulder of Chandrashekhar, the touch of which he feels even today. He takes pride in saying that the shoulder on which the Father of the Nation placed his hand is not to bend or bow. And he proved true to his pledge in all the circumstances including emergency. The children living in Bajajwadi decided to form a club. They went to Gandhiji to have a name for the club. Gandhiji advised them to approach Dada Dharmadhikari for appropriate name. Dada looking to the nature, interests and the activities of the naughty boys suggested to name the club as Ghanchakkar Club. Chandrashekhar reported the name suggested by Dada Dharmadhikari to Gandhiji and requested him to agree to be the President of the club. Gandhiji burst into laughter and said that he is the greatest Ghanchakkar and therefore, he will certainly be the President. Acharya Kripalani, who was present there instantly agreed to be the Vice President.

Dada Dharmadhikari wrote later about the Ghanchakkar Club thus:

A noted Marathi writer Wamanrao Chorghade in his book, “Dharmakirtan” writes:

The members of the Club were right from the children of sweepers to Ramkrishna Bajaj, son of Jamnalal Bajaj. The younger son of Khan Abdul Gaffar Khan-Lali Khan, Narayan Desai and Narayan Jaju were amongst the other members of the club. The unwritten rule of the Ghanchakkar Club was not to ask and not to tell the caste and income of any of its member. Chandrashekhar Dharmadhikari says: “In Hindu religion caste is a reality and Hindu religion is a fiction. A person acquires his caste in the womb of his mother and retains it even after his death. The caste will not disappear until those who thrive under it honestly reject casteism of all kinds.” The atmosphere in Bajajwadi encouraged the members of the Ghanchakkar club to undertake cleanliness work in slums. While working there, they realized that the status of those who create dirt is higher than those who clean the dirt. That is why Gandhiji introduced broom stick and collective

cleanliness to abolish social injustice. He himself used to clean his latrine and motivate the residents of the Ashram to clean the latrines. He believed that the status of a man or woman could not be measured from the work he did, because no work is low. Work is worship. He felt that the high and lowness of the caste would find no place in the country when the Bhagvad Gita would be in the hands of sweepers and the broom stick in the hands of Brahamins. He believed that the Sarvodaya is possible only through Antodaya.

Spinning
For Gandhiji, Khadi was the symbol of unity and dignity. So the members of the Ghanchakkar Club used to undertake spinning. The spinning imbibed the feeling of Swadeshi on their young mind, so much so that they never used foreign goods/articles from pin to crackers during Deepavali Festival. Clove was also not used in those days because it was imported.

Adult Literacy Classes
The members of the Ghanchakkar club used to go to the village Mhasala after their school and sports to conduct adult literacy classes. They used to go on bicycle with slate and pencil. They also conducted the spinning classes in the village. In the beginning the adults were reluctant because of the age gap between them. But slowly they got used and cooperated. Once Chandrashekhar Dharmadhikari solved a crossword appeared in the Illustrated Weekly, which was to give a motor car costing Rs. 10,000 as prize to the winner. Chandrashekhar went to Dada to make sure that the crossword he solved was correct. Dada told Chandrashekhar that if has solved the crossword with the lust for the motor car, then he should not go for it, because it would create greed for dishonest earning-be it in kind or cash. And once one is tempted to Haram-ki-Kamai, he will not be satisfied with Ram-ki-Kamai. Chandrashekhar understood the difference between honest and dishonest earning. This advice of Dada was carved on the mind of Chandrashekhar and he never thought of any such thing again in his life. He did not purchase even a lottery ticket. Not only this, he never played any game with a feeling of victory or defeat or monetary gain.

Chandrashekhar once went to a garment shop to purchase school uniform for his younger son, who was with him. The shop keeper gave him a lottery ticket, which Chandrashekhar refused to accept. The shop keeper told him that it is a free gift. Chandrashekhar replied to the shop keeper that he has not purchased lottery ticket and will not have it even if it is free. The shop keeper was astonished. However, his son insisted on accepting the lottery ticket. Chandrashekhar asked him the reason. The son replied that if they win, they will be wealthy overnight. Chandrashekhar Dharmadhikari was shocked to hear the reason. He told his son that the lust for easy money sow the seed for Haram-kiKamai. Jamnalal Bajaj had provided a room for the Ghanchakkar Club, which still exists there in Wardha. The members of the Club worked as volunteers in the annual session of the Indian National Congress held at Wardha under the Presidentship of Maulana Abul Kalam Azad. Gandhiji launched individual Satyagraha in 1940. He chose the little known Vinoba Bhave, as one whose purity of motive was unquestionable, to be the first to raise the flag of independent India in the individual Satyagraha campaign. Those who did not know Vinoba were surprised by the choice, but those who knew him approved it wholeheartedly. Introducing Vinoba to the people of India and the world, Gandhiji issued a comprehensive statement on 5th October 1940, in which he said: “Who is Vinoba Bhave and why has he been selected for offering individual civil disobedience in 1940? He is an undergraduate, having left college in 1916 after my return to India. He is a Sanskrit scholar. He joined the ashram almost at its inception. He was among the first members. In order to qualify himself better, he took one year’s leave to prosecute further studies in Sanskrit. And practically at the same hour at which he had left the ashram a year before, he walked into it without notice. I had forgotten that he was due to arrive that day. He has taken part in every menial activity for the ashram from scavenging to cooking. Though he has a marvelous memory and is a student by nature, he has devoted the largest part of his time to spinning in which he has specialized as very few have. He believes in universal spinning being the central activity which will remove poverty in the villages and put life into their deadness. Shri Vinoba has produced a text book, taking spinning as the handicraft. It is original in conception. He has made scoffers realize that spinning is the handicraft par excellence which lends itself to being effectively used for basic education. He has revolutionized Takli

spinning and drawn out its hitherto unknown possibilities. For perfect spinning, he has no rival in India. “His devotion to the cause of Daridrinarayan took him first to a village near Wardha, and now he has gone still further and lives in Paunar, five miles from Wardha, from where he has established contact with villagers through the disciples he has trained. ‘Vinoba believes in the necessity of the political independence of India. He believes that real independence of the villagers is impossible without the constructive programme of which Khadi is the centre. He believes that the spinning wheel, which has become the integral part of the previous Satyagraha campaign, is the most suitable outward symbol of non-violence. He believes that silent constructive work with civil disobedience in the background is far more effective than the already heavily crowded political platform. And he thoroughly believes that non-violent resistance is impossible without the hearty belief in and practice of constructive work.” The beginning of individual Satyagraha was made by Vinoba on 17th October 1940. He delivered speeches at Surgaon, Sailu and Deoli against war for which he was arrested on 21st October 1940. He went on Satyagraha again on 15th January 1941. He was imprisoned for his first, second and third Satyagraha for three months, six months and one year respectively. Ramakrishna Bajaj of the Ghanchakkar Club was the youngest one to be selected later for individual Satyagraha by Gandhiji. He was then hardly 18 years old. He went in procession with the members of the Ghanchakkar Club for Satyagraha. He was arrested and sentenced to four months imprisonment. Chandrashekhar’s mother was also selected by Gandhiji for participating in the individual Satyagraha and was sentenced to six months imprisonment.

Quit India Movement
Gandhiji announced Quit India Movement from Wardha. Twenty five members of the Ghanchakkar Club participated. Some of them were arrested and released. Narayan Jaju, Chandrashekhar’s elder brothers Babanrao and Balu were sent to jail. A firing was ordered in Gandhi Chowk of Wardha, in which a coolie named Janglu was killed. The students led by Chandrashekhar chalked out programme for closing down the school. They undertook picketing by sleeping in front of the main gate of their school. One senior Government officer brought his son to the

school in his car.A member of the Ghanchakkar Club by name Awantilal Agrawal threw himself with force before the car. He was miraculously saved. The officer was in perspiration. The school was ultimately closed down. The Government issued orders not to give admission to the students of Nav Bharat Vidyalaya in any other recognized school. Chandrashekhar was thus prevented from taking admission in any recognized school. Chandrashekhar and his collegues kept the Quit India movement alive in Wardha for two to three years after the senior leaders were packed to jail. The underground work they carried included distribution of bulletin with milk bottles; display of posters; breaking of electric and telephone wires to disrupt communication. They also tried to blast the bridge on Dham river by standing all the night in the water, but their attempt failed. They also tried to prepare local hand bomb. Chandrashekhar and his friends used to operate activities from a cemetery by sitting near the burning funeral pyre. This had two-fold advantage, namely protection from the cold and escape from the clutches of the police. They kept the cyclostyled machine in the toilet for cyclostyling the bulletin for distribution. Acharya Bhansali began his fast. The Government did not arrest him. The members of the Ghanchakkar Club used to copy Bhansali’s signature on the bulletin and distribute them secretly. Once or twice, police tried to extract secret information and material from Chansrashekhar Dharmadhikari at the gun point but failed. He was arrested twice while distributing the bulletin and displaying the posters. At that time all the members of Dharmadhikari family were in jail. His elder sister, who had come for delivery was alone in the house. Chandrashekhar was the eldest member in the house. The police took him to the police station and looking to his tender age set him free after giving him some beating. Some of the officers’ quarters were behind the house of Dharmadhikari and their children were playing with Chandrashekhar. They had sympathy for Dada and his family. During three years of imprisonment, Chandrashekhar’s mother lost mental balance, and it was in this state, she breathed her last. In spite of the hardest sufferings and sacrifice for India’s independence, neither Dada nor any member of his family applied for Freedom Fighter’s pension or for honours bestowed on Freedom Fighters. Chandrashekhar’s mother even in the state of mental imbalance used to say like a normal person that they had not gone to jail for pension or honour.

However, wisdom dawned on the Government of Maharashtra after 54 years of independence to sue motto sanction Freedom Fighter’s pension on 15th August 2001 to Chandrashekhar Dharmadhikari in recognition of his selfless services. The Government also awarded him Tamrapat. It was like getting pearl without asking for. This is the feeling of Chandrashekhar Dharmadhikari. During Freedom movement Chandrashekhar Dharmadhikari had to eat the bread made of maize supplied on the ration card. This resulted in his permanent stomach upset. He takes it as a lesson to lead self-respected life in poverty adopted for cause rather than leading a life in affluence by mortgaging the selfrespect.

Matriculation
Chandrashekhar Dharmadhikari could not appear for the matriculation examination as a regular student because of his participation in Quit India Movement. The only alternative left for him was to appear privately. Science subjects were out of question, for they required regular classes. There was no alternative but to select from the remaining subjects. By appearing privately, Chandrashekhar passed matriculation examination in 1945. He missed First Division by one mark, but obtained distinction in Marathi. Chandrashekhar Dharmadhikari says: “What we learnt in Bajajwadi could not have been learnt in any school or college. Bajajwadi had become virtually Open University.

College Education
Chandrashekhar secured admission in Binzani college at Nagpur, where Shri Bhayyaji Pandhripande was Principal. The financial condition of Dada in those days did not allow regular payment of college fees. Principal Pandhripande came to the rescue of all those students who were genuinely in need of facilities. A number of students who were expelled from the colleges in the Nizam State of Hyderabad were given admission in Binzani college. Chandrashekhar, however, had to seek admission later in Morris college, from where he did his B.A. After independence the name of the said college was changed to Nagpur Mahavidyalaya. He joined the said college for M.A. in

Economics and simultaneously attended Government Law College for LLB. He could not appear for M.A. examination in 1951. He failed in LLB examination in 1952. His mother asked him: “People consider you as a brilliant student. How did you then fail? Look at me, I have never failed in my life. Do you know its reason? Because I did not appear at any examination in my life. One who does not appear at any examination does not fail. One who does not undertake any experiment does not see failure in experiment.” Chandrashekhar passed his LLB examination in second division in 1954 and started his practice with his brother Babanrao. He passed his M.A. examination, but in third division for interesting reason. The examiner, who had come from Bombay asked him in viva voce, the basic principles of Gandhian economics. Chandrashekhar replied that it was non-violence. The examiner lost his temper and said that it is a political principle. Chandrashekhar remained firm on his reply and said non-exploitation is non-violence, and therefore, it is also an economic principle. Due to the clash of opinion with the examiner, arising out of his singular interpretation of economics, Chandrashekhar got through his M.A. examination in third division.

Participation in Youth Congress
During his school days, Chandrashekhar used to take active part in drama, debating and elocution competitions. He got his first speech for elocution competition prepared from Dada. He had its rehearsal standing before the mirror. On the day of the competition, he put on trousers to hide the shivering in his legs. He did not look to his audience in the eyes while speaking. With all this, his performance brought him first prize. Chandrashekhar continued his extra-curricular activities as usual during his college life. He also took active part in the Youth Congress programmes. One instance occurred during this period which created deep impression in the mind and heart of Chandrashekhar Dharmadhikari. It so happened that the differences between Jawaharlal Nehru and Purushottamdas Tondon reached their height. Shri Dwarkaprasad Mishra, who was then Home Minister of Madhya Pradesh,

threw his lot behind Tondon, because of which the supporters of Nehru became passive. The National Nehru Front was formed under the youth leadership of Chandrashekhar Dharmadhikari, which organized meetings at different places to rally support behind Nehru. A massive meeting was arranged at Chitnis Park of Nagpur. This meeting was to be addressed by Chandrashekhar as keynote speaker. But at the last moment it was argued by the Congress leaders that the atmosphere is not conducive for a Brahamin to address the meeting and therefore, Chandrashekhar should not address the meeting and should also not sit on the dais. Chandrashekhar felt deeply hurt and said: “Hitherto, there was no objection for my addressing the meetings. Since the situation was ripe to get credit, they took shelter of my being a Brahamin to keep me away from the meeting and the credit.” He further said: “When one does not find any valid reason to drop a person, the excuse of his caste is taken. My caste was not considered hindrance, when I had already addressed several meetings. But when all arguments fail, caste is the only argument, which you cannot deny. In fact influenced by Gandhiji’s thinking, Chandrashekhar had not performed any ritual or Sanskar prescribed for the Brahamins. He did not perform thread ceremony. He believed that if thread ceremony is good, then it should be performed by all from Brahamins to Scheduled Castes. Chandrashekhar was considered as Shudra by Brahamins as he had not performed thread ceremony. He was not even allowed to take meals with thread ceremony performed boys. He was also not allowed to touch the water meant for the bah of thread ceremony performed boys. Dharmadhikari family had abandoned caste, creed and colour. It was a convention in those days and even today that on the occasions of festivals or Shraddha, Brahamins are invited for meals. Dharmadhikari on such occasions invited their sweeper Paiku and his wife and served them meals with them. Dharmadhikari did not go to the temple which was prohibited for Harijans. This was in keeping with the policy of Mahatma Gandhi. Even today, he does not go to a temple wherein entry to women is prohibited. He feels that it is an insult to his mother. This was the code of conduct Chandrashekhar Dharmadhikari meticulously observed and in spite of it, under the label of Brahamin, he was dropped as the main speaker at the Chitnis Park meeting.

College Students Union President
Chandrashekhar was very popular in the college. He was fielded to contest the election for the Presidentship of the college students union. He went to his father Dada to seek his blessing. Dada asked him the purpose of his contesting the election. Chandrashekhar replied that he himself has been advising that good people should come forward. Dada counter questioned, who decided that you are good. Chandrashekhar replied that in our country people do not decide who are good or bad. One has to decide for himself. Dada again asked as to how many posts of power are there in India right from the President of India down to the Sarpanch of a village. There must be five to ten lakhs, was Chandrashekhar’s reply. Dada then asked how many workers or servants will be required to serve the country and the people? Chandrashekhar told that at least fifty lakhs will be required. Dada ultimately told his son that there is no dearth of power hungry persons. They do not build the society or the nation. Contrary they spoil it. Therefore, our names should be in the list of fools, who are not after the seats of power. Dada told that Gandhiji is the biggest such fool.

Labour Movement
Chandrashekhar Dharmadhikari was actively involved in labour movement till he became Government pleader in 1965. Recollecting his experiences he says: “It is generally seen that minimum work and maximum wages are always the expectations of labour, whereas maximum work and minimum wages are the designs of the management. Dishonest labour and callous and miserly managements both are the real representatives of the capitalistic system in the eyes of a common man. In this age-old quarrel of management verses labour, the third element-the society is held at ransom. It is the consumers who suffer.” Speaking about the labour movement, Dharmadhikari says: “In our labour movement, it was our ardent appeal that the benefit should go to the consumer also. Labour gets bonus and the share-holders get dividend, but a consumer is deprived of any justice for whom in fact, the industries came into being. Consumer is the very raison d’ etre of labour and management. Unfortunately the first and the last to be offered as oblation at the alter of questionable profit approach of the above antagonistic group because in our country, every interest

group ultimately becomes pressure group. Strikes and lockouts result in the increase of prices and once there is increase in consumer prices of a product, it never comes down again. At no stage in industrial relations even the slightest thought is given for consumers. Our labour movement never wanted that the movement should have such a limited approach. We thought of different dimensions to it. Exploiters vs exploited rather than management Vs. labour. In our view both were Trustees and not Owners. Even the labour is a Trustee of his Labour for the benefit of the society at large. Inviting attention to the theory propounded by Mahatma Gandhi that rights beget from consciousness of duties, Dhamadhikari says: “During the period of Indo-China war, we inspired labour to donate money to the Defence Fund by working on holidays and by increasing production. Some of the unions were prepared to contribute money but were reluctant to work on holidays. This stand was not acceptable to us because it ignored the increase in production and salary contribution as well. We never allowed any sort of compromise over the cardinal value of sacrifice. We intended to put an end to the practice of parasitism of the capitalist on the sweat and blood of the working class. The economics of our movement was that those in need should have priority over those who only wielded purchasing power.” Abiding by this principle, Dharmadhikari remained President of the Union of the Employees of Textile Mills at Nagpur for five years. The Unions of all other parties and labour reposed implicit confidence in him. He was also President of the Rashtriya Mill Mazdoor Sangh, which was affiliated to INTUC. He did not allow from his side a particular party label for the labour nor did he play politics with necessities of the needy. This kind of attitude of Chandrashekhar Dharmadhikari helped him a lot in his career as a lawyer. He never thought of money while rendering legal help to the needy, nor did he earn money by unfair means. This gave him an idealistic attitude for which he always felt indebted to the labour class in Nagpur. He believed and even today believes, in need based and not greed based life style. For him Standard of spending is not standard of living.

Kamgar Bhavan
Chandrashekhar Dharmadhikari wanted to construct a building to conduct the welfare activities for workers and the meetings of the Labour Unions. A number of industries came forward to donate money for the building. But Dharmadhikari wanted to create this building on the strength and contributions

of the workers on the line of Ogle Glass Factory in Pune, which was set up and developed on “Paisa Fund.” Dharmadhikari ultimately succeeded in constructing the building with workers contribution and that too in record time. This building stands as Kamgar Bhavan. Another notable service Chandrashekhar Dharmadhikari did for the workers was to see that the workers take their entire salary to home instead of spending major part of it on liquor. While negotiating for the increase in the wages of the workers, the Mill Owners invariably used to take a plea that the workers will spend the increased wages on liquor rather than utilizing them for increasing the standard of living of their family. Dharmadhikari assured the owners that this will not happen. He succeeded in changing the attitude of workers, which resulted in making the families after families happy.

Rural Development
Justice Chandrashekhar Dharmadhikari is actively associated with the rural development work as Chairman of Yusuf Meherally Centre and Balwantrai Mehta Panchayat Raj Jagruti Kendra. These centres are carrying on programmes in the field of Health, Micro Watershed Development, Agriculture, Village Industries, Adivasi Welfare, Women Welfare, Pollution Awareness, Aforestation and Youth Welfare etc. He is also engaged in relief work in Gujrat, Kerala and Maharashtra. Balwantrai Mehta Panchayat Raj Jagruti Kendra is engaged in training the members of village panchayats, so as to empower Panchayat Raj System, so that it can achieve the goal of Gram Swaraj. Whereas the Society for Educational Action and Research in Community Health (SEARCH) is working in the remotest Adivasi area for overall development of Adivasis, particularly dealing with Health problems. The work done by SEARCH has received worldwide recognition. As Chairman of Dahanu Taluka Environment Protection Authority, Justice Dharmadhikari has introduced an altogether new concept and principle in the field of rehabilitation. The concept “pre-habilitation” and “Pre-afforestation” is introduced by him, which in itself is unique and revolutionary. As per this principle, before cutting a tree, authorities concerned are obliged to plant ten trees; before demolishing a house, authorities concerned are obliged to construct a new house for a person who is likely to be displaced, and after the

person is given a new house, where he shifts, then alone demolition of house is permitted. Under his leadership such afforestation has taken place in Dahanu Taluka. The following forests are developed, which are known as Aantarbharati Upavan, Krantivir Achyutrao Patwardhan Krantivan, Stree-shakti Upavan, Shram-shakti Upavan, Rashtriya Maha Marg Mahatma Gandhi Upavan, Megharajdevrai Upavan, Tara Bai Modak Bal Shakti Upavan, Bharat Sevak Namdar Gopal Krishna Gokhale Upavan and Sevamyi Acharya Bhise Upavan. Various authors have dedicated their books to Justice Chandrashekhar Dharmadhikari in recognition of his social service, and qualities of head and heart. Some of them are as under: 1. 2. 3. 4. Padgaonkar 5. 6. Vishayanurup Dnyaneshwari. by Justice Dhananjay Deshpande. Four Language Practical Dictionary by Ganesh Oturkar. At the age of 84+, Justice Chandrashekhar Dharmadhikari is still actively involved in socio-economic, educational, Gandhian and Sarvodya activities. ********* Shahir G.D.Madgulkar by Raja Mangalwedekar. Rajmudra by Suresh Dwadashiwar. Shikshkacha Dharma by Ram Shevalkar. Mahatma Gandhi Pranit Akra Vrate by Chandrakant

Extraordinary Lawyer

Dr. Johnson said: “If a man were to go by chance at the same time with Burk under a shed to shun a shower, he would say: “This is an extraordinary man.” On the same analogy, it can be said: “If a man were to go by chance into the court and hear Chandrashekhar Dharmadhikari argue for a few moments, he would say, this is an extraordinary legal mind.” Chandrashekhar Dharmadhikari obtained his LL.B. degree in 1954. There were a number of lawyers in Dharmadhikari family. His elder brother Babanrao, had already started legal practice. Chandrashekhar also decided to start legal practice with his brother. In those days, first two years of practice were required to be completed as District Pleader and then only one could become eligible to get enrolled as an Advocate with Bar Council to practice in the High Court. Court. On 24th October 1956, just a week before the Reorganization of States, Shri Chandrashekhar Dharmadhikari got Sanad and was enrolled as an Advocate of the then Nagpur High Court. As per the practice then prevailing, he took oath in the open Court presided over by Chief Justice Shri M. Hidayatullah and the senior most Judge of the Nagpur High Court Justice Shri K.T. Mangalmurti. The Nagpur High Court was established on 9th January 1936. The first Chief Justice of the Nagpur High Court Sir Gilbert Stone, on the eve of the inauguration

of the High Court had said: “Well all of us, upon whose shoulders falls the onerous task of setting on its way this High Court, are conscious that we shall be laying the foundation of an institution that will be charged with the safe keeping of justice in this province for many years to come. We shall bring to that task, some of us the experience gained throughout many years as practitioners, others as Judges, some of us as both, one and all of us as men who have only one professional interest and that is to be fair between man and man, accurate to the best of our abilities in the application of the law, mindful of the fact that the law is the keystone of the arch of liberty. This High Court will hold the scales fairly not merely between subject and subject but between all manner of men, however high or however low they may be. “All of us Bench and Bar, are members of a profession, divided, it is true into two branches: those who have to decide, those who argue with a view to convince. Let us both see to it that we are loyal each to the other, Bench to Bar, and Bar to Bench. Then tree of justice, of which these two branches are the most important members, will not suffer from the aridity induced by lack of regard. If we achieve loyal co-operation, then this, the most junior of the many High Courts of India, will be able in the future, I have little doubt, to give a good account of itself and may even in time, for time does not stand still, and what was once great becomes small and what was once small becomes great, be able to stand comparison with any other High Court. That will depend not on any material resources but upon the mental and moral equipment of the men who man it”. These observations are equally true even today. The Nagpur High Court had great traditions and so also the Nagpur Bar. Three of the Judges, who were elevated from the Nagpur Bar became Chief Justice of the Bombay High Court i.e. Chief Justice Shri Y.S. Tambe, Chief Justice Shri S.P. Kotval and Chief Justice Shri M.N. Chandurkar, who was later transferred as Chief Justice of Madras High Court. Shri Justice J.R. Mudholkar was elevated to the Supreme Court of India. Chief Justice of the Nagpur High Court Shri M. Hidayatullah became the Chief Justice of India, Vice-President of India and also the Acting President of India. A member of the Nagpur Bar Shri Justice A.P. Sen became a Judge of the Supreme Court. An eminent Jurist and a great Judge, Shri Justice Viven Bose was the first Indian Chief Justice of the Nagpur High Court. In the words of Abraham Lincoln they mutually excelled each other. Sir Bhavanishankar Niyogi, a versatile man was an Acting Chief Justice of the Nagpur High Court. Therefore while writing the

history of the Bombay High Court the contribution made by the Nagpur Bar and the Bench cannot be ignored. On 1st of November 1956, with the States Reorganization, Vidarbha Region of the erstwhile State of Madhya Pradesh became part of the Bilingual State of Bombay and then in the year 1960 the State of Maharashtra. With the States Reorganization the then Nagpur High Court also came to be reorganized. Shri Justice K.T. Mangalmurti, Shri Justice J.R. Mudholkar, Shri Justice Y.S. Tambe, Shri Justice S.P. Kotwal became Judges of the Bombay High Court and the other Judges of the Nagpur High Court Chief Justice Hidayatullah, Shri Justice V.R. Sen, Shri Justice Chaudhary, Shri Justice G.P. Bhatt and Shri Justice T.P. Naik constituted the Madhya Pradesh High Court with its principal seat at Jabalpur. Chief Justice Hidayatullah and Justice Viven Bose were the brightest jewels of the Judiciary family. They ranked among the foremost Judges who have adorned the Supreme Court of India and perhaps amongst the best in the world. We talk reverentially of great Judges of the West i.e. Frankfurter and Learned Hand of the United States and of Lord Macmillan and Lord Denning of the United Kingdom. Bose and Hidayatulla are as great and as deserving of equal respect and reverence as the above four Judges, who are a few of the many deserving our encomiums. When Chandrashekhar Dharmadhikari actually started practice, he had no money needed for getting enrolled with Bar Council and to purchase a gown. His grand mother (mother’s mother) provided him with necessary money to do the needful. Fortunately Chandrashekhar Dharmadhikari could establish himself very well in legal practice. Subsequently he became Government Pleader. He had been also Standing Counsel for Nagpur Municipal Corporation. In a short span, about a dozen lawyers were working with him in his office. They used to share their income. With the inheritance of virtuous living of his father, Chandrashekhar developed no temptation for money. Instead, he developed soft corner to help the victims of social injustice. He always showed his readiness to rise to the occasion and extended legal help even by spending his own money. He used to get mainly labor and tenancy cases. He did not charge any fees to the poor people, down-trodden, deserted women who suffered due to family quarrels. In spite of all this, with the blessings of Almighty, his father and trust of

people, he could get adequate money in his practice and built a new house and Purchased a car. A few characteristic qualities of Chandrashekhar Dharmadhikari as an advocate need a mention. He was blessed with a stentorian voice, which was quite disarming for his opponents. He was invariably full of confidence at the Bar and had the habit of looking around in Court during the course of his arguments. He never interrupted his opponents. His arguments were crisp and to the point and were not loaded with personal reminiscences and anecdotes. He practiced the profession in a grand manner like an architect and not like a mason or a tradesman operating on the law of demand and supply. His fees was reasonable and did not vary depending on the stakes involved in a case. The most conspicuous trait of Dharmadhikari’s advocacy in Court was his clarity of exposition and brevity. He never repeated an argument or overemphasized it. His suave manners, and his familiarities with the law and above all his being a gentleman impressed one and all. As Government Pleader, Dharmadhikari instinctively grasped the true function of a Law Officer which is stressed in English Courts viz, “Counsel for the Crown neither wins nor loses. He is there to state the law and facts to the Court.” Chandrashekhar Dharmadhikari did precisely that. Because of this Judges were sure that they would get proper assistance. The statement of the case, which he drafted was a model of statements. Whenever, he took up a case, he devoted his entire attention to the study of every aspect of the issues involved to the best satisfaction of his clients. The excellence of the quality of his advocacy could best be described in terms of an English ditty, which says: “It is not the eye or lip, We beauty call. But the full effect and the result of all.” (Alexander Pope: An Essay on Civilization) Chandrashekhar Dharmadhikari as lawyer was a man of utter integrity, in court and out of court. He followed principles in the

practice of the profession, modeled more or less on Mahatma Gandhi, who also was a barrister who practiced both in India briefly and in South Africa for a longer period. Chandrashekhar Dharmadhikari proved that it is possible to practice what Gandhiji was telling even at the Bar. It is not as if they are impossible omnipotence in the sky, but practical pragmatic guidelines to put into professional life at the Bar, yesterday, today, tomorrow. It is from this angle Chandrashekhar Dharmadhikari was a great lawyer. May his tribe increase? During his practice as an Advocate, Dharmadhikari had to appear in the following cases, which cast reflection on our judicial system. A case was filed against his client for consuming liquor. The client confessed the guilt. The Judge awarded the punishment of fine, which the client readily accepted. But he asked a startling question to Dharmadhikari and the Judge. He said that when he was drinking liquor, some of the men of status from the town were also drinking liquor in a club. Then why have they not been arrested and prosecuted by the police? When he was told that they had the necessary permit for drinking Liquor. The man with innocence replied: “Oh! I did not know that there are two kinds of wines. One legal and the other illegal. But the intoxication is the same. Why a poor man like me should be prosecuted? Dharmadhikari and the Judge had no answer. In another case, a scheduled caste woman was openly selling liquor on the road. She was arrested and a case was filed against her. She confessed the guilt. Since it was her first crime, the Judge imposed only fine and said that in case she does not pay fine, she should be sent to jail for a few days. Hearing this, the woman requested the Judge to send her to jail at least for four months. When asked for the reason, she told that she is in the advance stage of pregnancy and the delivery would not be safe and comfortable at home in view of her poverty. In jail pre-natal and post-natal care will be taken. It is a pity that even after independence, the jail should be considered as a safe and comfortable place for delivery by a woman belonging to the down trodden caste. A wife filed a suit against her husband for the torturous treatment meted out to her. When the case came for hearing the advocates on both the sides argued the case in such a way as if they were fighting. The Judge passed some sarcastic remarks. Seeing the behavior of the advocates and the remarks of the Judge, the husband said that he does not want a third party to settle their

dispute. They will themselves settle their differences. The wife also saw the point and left the court with her husband to live together. In a case, where a Muslim was a witness, Dharmadhikari had a shocking experience. The Muslim witness had brought Quran with him for taking oath. It was wrapped in satin cloth. He gave false evidence by putting his hand on Quran. Dharmadhikari later asked him that he is a Haji having gone to Haj. Why and how did he give false evidence after placing his hand on Quran. The Haji said that he has not given evidence by putting his hand on the real Quran and he showed the same to Dharmadhikari. It was a brick wrapped in cloth. “In our country,” Dharmadhikari says, “in religion straight roads are less than short cuts to use it for wrong causes.” Justice Dharmadhikari had different experience about Arbitration Tribunals. There was a dispute between the Nagpur Municipal Corporation and the Nagpur Electric Co. The dispute was entrusted to Justice Bavadekar (Rtd). Justice Bavadekar came to Nagpur. Stayed in government rest house. He meticulously followed the rules of the Tribunal. So much so that while going to the place of sitting, he used Corporation’s car and while returning to the rest house, he used Electric Co’s car. He used to carry his lunch with him. He never accepted hospitality from any one during his stay in Nagpur, and never used Corporation or Co. car for private visits. Dharmadhikari says: “All these ethical norms have now become a part of history. The meetings of the Arbitration Tribunals, with hardly any exception, are held in Five Star Hotels as if they have become Five Star Courts. They are therefore, beyond the means of common men. Gandhiji wanted to improvise Arbitration Boards in order to settle disputes. But the experience is contrary to this. Now a days real dispute starts after the Award. Some day the retired Judges, who are appointed on the Tribunals will have to take a note of it, if the faith of people in the judiciary is not allowed to be shattered.” Dharmadhikari recollects a peculiar case of a murder, which took place at Digras in Yeotmal district, when he was a government pleader. In this murder case the District and Sessions Judge had set free the accused by giving him the benefit of doubt. The government went in appeal to High Court, where Dharmadhikari had to plead the case as government pleader. In this murder case there was on record the dying declaration recorded thrice. The statement of the ten year old daughter of the diseased was also on record. On the strength of the evidence on record, Dharmadhikari pleaded the

case, the result of which was all the accused who were five or six in number were awarded sentence of life imprisonment. The accused filed appeal in the Supreme Court, where the conviction and sentence awarded by the High Court was confirmed and the appeal was rejected. The accused were sent to the central jail at Nagpur. Among those who were sent in jail, there was one office bearer of Panchayat Samiti among those who were sent to jail. He while on parole, one day, came to the resident of Dharmadhikari at Dhantoli in Nagpur. He bowed before Dharmadhikari and said: “Sahib! You did your job perfectly well. I have no complaint about you. You are son of our revered Dada Dharmadhikari. You are also in public life. I have come to tell you that I am innocent. I had no hand in the murder. I was with a minister on tour, when the murder took place. I requested the concerned minister to give the evidence in the court, but he flatly refused. I was involved in the murder case to remove me from the politics, as I was considered as a threat to the existence of my opponents. You can ask the advocates who assisted you in the case. I have told you the truth, so that you do not misunderstand me.” So saying, he left. In order to go to the root of the truth, Dharmadhikari called the advocates from Yeotmal who assisted him and asked them to reveal the truth. They were initially reluctant, but at last told that the man from Panchayat Samiti was involved by his opponents to eliminate him from their way in politics. They further told that the dying declaration was recorded thrice on the assurance to the diseased that care of his daughter for education and marriage will be taken. On this assurance, he and his daughter named the Panchayat Samiti member. Dharmadhikari became restless. He brought the facts to the notice of the government and requested to ascertain the truth from the record of the Panchayat Samiti and the person who was then minister. But the then Law Secretary declined to look into the matter saying that it would not be wise to do anything in the matter after the Supreme Court confirmed the judgment of the High Court. Dharmadhikari was not satisfied with the posture adopted by the Law Secretary. He says: “Government had powers to pardon the accused and set him free from the jail. This could have been done even without reopening the case. The minister concerned in private admitted that the said person was with him in

his tour.” Dharmadhikari tried his best to do justice to the man, but his efforts proved to be an exercise in futility. The said man, in a few days died in jail. Dharmadhikari feels sorry for the man even today and with heavy heart says: “This is a glaring example that in party politics, people can stoop down to any level to eliminate their opponents. The Judge awards sentence on the basis of the proof brought before him. The government, where it has powers, should not shirk responsibility by saying that it is the court decision. It can and should act when the truth comes in the light. Otherwise, it will be construed that injustice can also be done legally.” Dharmadhikari found himself in duel mind in another criminal case, which he had to plead as government pleader. A poor widow jumped in a well with her two children to finish life. To her misfortune both the children died and she remained alive to face the charge of murder and an attempt to commit suicide. All through the case she was weeping for the death of her children. Her advocate on the ground that she has gone mad prayed for mercy. The Judge of the trial Court acquitted her by giving the benefit of doubt. The government went in appeal and Dharmadhikari had to plead the case. He could not understand what more punishment could be given to this mother who had seen death of her children with her own eyes. Dharmadhikari did not Press the appeal. Therefore, the High Court summarily dismissed the appeal. Mahatma Gandhi had rightly said: “…..Lawyer’s profession teaches immorality; it is exposed to temptations from which few are saved. Clients go to the lawyers. The latter’s duty is to side with their clients and to find out ways and arguments in favor of the clients to whom they are often strangers. If they do not do so, they will be considered to have degraded their profession. The lawyers, therefore, will as a rule advance quarrels instead of repressing them. Moreover, men take that profession, not in order to help others of their miseries, but to enrich themselves. It is one of the avenues of becoming wealthy and their interest exists in multiplying disputes.” Mahatma Gandhi further said: “It is within my knowledge that they are glad when men have disputes. Petty pleaders actually manufacture them. Their touts, like many leeches suck the blood of the poor people. Lawyers are men who have little to do. Lazy people, in order to indulge in luxuries, take up such profession….” Gandhiji continued: “Some families have been ruined through them; they have made brothers enemies. Principalities, having come under the lawyers’

power, have become loaded with debt. Many have been robbed of their all. Such instances can be multiplied….. If people were to settle their own quarrels, the third party would not be able to exercise any authority over them.” (Hind Swaraj or Indian Home Rule: M.K. Gandhi, pp – 50-51)

True Practice of Law
In his autobiography, Mahatma Gandhi has recorded: “I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that a true function of a lawyer was to unite parties driven as under. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises in hundreds of cases. I lost nothing thereby and not even money, certainly not my soul. It was not impossible to practice law without compromising truth. “Even truthfulness in the practice of the profession cannot cure it of the fundamental defect that vitiate it. Throughout my career at the Bar, I never once departed from the strictness to truth and honesty. The first thing which you must always bear in mind, if you would spiritualize the practice of law, is not to make your profession subservient to the interest of your purse as is unfortunately, but too often, the case at present. The fees charged by lawyers are unconscionable everywhere. I confess, I myself have charged what I would call high fees. But even while I was engaged in my practice let me tell you I never let my profession stand in the way of my public service and there is another thing which I would like to warn you against. In England, in South Africa, almost everywhere I have found that in the practice of their profession, lawyers are consciously or unconsciously led into untruth for the sake of their clients. An eminent English lawyer has gone so far as to say that it may even be a duty of a lawyer to defend a client whom he knows to be guilty. There I disagree. The duty of a lawyer is always to place honest facts before the judges and to help them to arrive at the truth, never to prove the guilty innocent. “A true lawyer is one who places truth and service in the first place and the emoluments of the profession in the next place only.

Lawyers and English-educated persons do not, by any means, enjoy a monopoly of hairsplitting. Lawyers are also men and there is something good in everyone. Whenever instances of lawyers who have done good can be brought forward, it will be found that the good is due to them as men rather than as lawyers.” This way Gandhiji had practiced his profession and in South Africa he was making a large income. Large because when he addressed the Judges – and they were all English Judges or white skinned Judges – they heard the facts narrated by Gandhi, made copious notes from what he had to say and told the other side, ‘you need not argue on he facts. Gandhi has already told us what it is and what we accept it. If you have got any question of law to urge please do.’ This was the way Gandhi convinced the court that whatever Gandhi was saying was absolute truth, nothing but the truth. Having come under the spell and shadow of Mahatma Gandhi, right from his childhood, Chandrashekhar Dharmadhikari followed the father of the nation in the letter and spirit. spirit. Shri Nani Palkhivala, in his lecture on “Law and Lawyers” in Government Law College at Bombay way back in 1948 said: “Bar has been called not so much a profession as an excuse for not having one. Chaucer in his Canterbury Tales portrayed the lawyer who took good care to seem busier than he was. Maybe, the average lawyer has not changed much in this respect since the pilgrims set out from the Tabard Inn. “One of the commonest calumnies hurled against the lawyer is that his profession is one where success depends on trickery and chicanery. The lawyer’s tricks of the trade and juggling with words have become proverbial, mainly through a repetition of the charge. Dean Swift brusquely referred to lawyers as men who prove that white is black or black is white according to as they are paid. Tulliver, in the Mill on the Floss, expressed the opinion that the ‘laws made to take care o’ rascals’. Lawyers are supposed to have so little regard for truth even in solemn documents that Charles Reade said caustically, ‘The truth will be out – even in an affidavit.’ “The common charge against the lawyer is that he is a parasite on society. ‘A sty for fattening lawyers on the bones of honest men,’ was the comment of Thackeray on the Court of Chancery. Lord Justice Knight Bruce

cynically observed in an administration suit that ‘the estate will be divided in the usual way among the solicitors.’ A contested case in which eminent Counsel are engaged is the luxury of the rich or the refuse of despair. It often spells ruin to the average citizen. Voltaire used to say that he was ruined twice in his life- once when he lost a law-suit and once when he won a law-suit. “Disraeli was equally harsh on lawyers. ‘The chief characteristic of the legal mind,’ he said, ‘are expounding the obvious, illustrating the self-evident, and expatiating on the common place.’ Jermy Bentham, a lawyer himself, is no less severe – Ignorance of the law excuses no man except the lawyer. “When revolution comes in any land and the people take charge of their affairs at last, the first reform is always the execution of all lawyers. It is often the only reform which subsequent ages do not regret.” G.K. Chesterton, talking of lawyers, said: They fight by shuffling papers, They have dark, dead alien eyes; And they look at our love and our laughter As a tired man looks at flies. (The Secret People) Difficulty to access courts and lawyers, the high cost of litigation, procedural delays and a general mistrust of lawyers have often contributed to a bedeviled image of the legal profession. Even Judges have not been spared for allegedly conniving with lawyers and both together are sometimes described as a continuing conspiracy to promote their own interests. The legal profession is selfassured to the point of complacency and relatively little is done by the profession to cultivate public relations and to project a better image of itself. The reasons for the public tirade against lawyers are fairly evident, their traditions and ethos are not known to the public. The more successful lawyers do well for themselves and do not fail to excite jealousy. The language lawyers use is not easily intelligible. Unfortunately, their services also cost money, for lawyers must live. What is more, only one of the two parties to the dispute can win and therefore the other party may excusably want a scapegoat in his lawyer or the legal system. Few have the fairness to attribute their failure to the lack of merit in their case. Fewer still appreciate that the truth of the matter is not a simple or

absolute category and there are often two sides in the claim of truth and justice. But there are also some other significant reasons for the unpopularity of lawyers over which the profession and the society must continually ponder. Delays and the high cost of litigation for those who cannot afford it cause exasperation, frustration and a ranking sense of wrong. If the best lawyers are available only to the affluent and if the poor and the socially disadvantaged are denied their due access to the doors of justice, there is bound to be an adverse reaction to the legal system and to lawyers. If lawyers do not assist and do not appear to assist in reforming unjust laws and procedures and in ensuring equality in the administration of justice, they would tend to be seen as the protectors of the privileged and not as upholders of right and justice. “A practicing attorney,” says the Japanese Law (No. 205 of 1949), “is entrusted with a mission to protect fundamental human rights and to realize social justice. (Democracy and Rule of Law: Dr. L.M. Singhvi, pp 200-201) The legal profession requires a capacity for hard work far above the ordinary. When an anxious mother asked Lord Thurlow whether he would advice her son to take up law as a profession, the Lord Chancellor’s reply was: “Madam, can your son work like a horse and live like a hermit?” Lord Reading made the memorable quip that when he joined the Bar he thought that it would be a bed of roses; he soon discovered that it was either all roses and no bed, or all bed and no roses.” Of course, all are not bad and there are respectful exceptions. Speaking for the profession of law, Dharmadhikari says: “Lawyer’s profession is not a devise to keep the pot boiling, but also a noble vocation. From this point of view, every lawyer must become a tribune of people. He should command, not only their respect, but also their confidence. It is generally believed that lawyers are men who thrive on feuds…. But the profession of lawyers can be elevated into a sublime vocation, if he becomes the real tribune of the people.” According to Dharmadhikari, it is necessary to emphasize that the primary and fundamental notions of professional ethics must always remain unimpaired. The standard of professional honesty and integrity and of rules of professional conduct that are relevant in that behalf must never be relaxed or scaled down. “In the observance of these primary rules,” says Dharmadhikari, “lies the strength and importance of the Bar.”

Chandrashekhar Dharmadhikari was not dry-as-dust lawyer, who looked upon the Law Reports as the last word in human achievements. In the words of the Earl of Oxford and Asquith, he always kept with him the company of great thoughts, the inspiration of great ideals, the example of great achievements, the consolation of great failures. He thus brought to his work nobility which was based on human values and culture, qualities which proved invaluable for his work as a judge. As a lawyer Chandrashekhar Dharmadhikari always bore in mind that the legal profession is a profession of service – service to the community. The important duty of the profession is to act as the interpreter, guide and faithful servant of the community. Human nature being what it is, disputes are bound to arise amongst men. Man may be little lower than the angels, he has not yet shed off the brute and the brute within is apt to break loose on occasions. To curb and control that brute, we need the rule of law for the settlement of disputes, which are bound to arise in the affairs of men. And ensuring the rule of law the most significant part is, perhaps, played by the lawyer.

*******

A Legendary Judge
In the lexicon of youth, which faith reserves For a bright manhood, there is no such word As fail! Edward George Earl Bulwer-Iytton

13th July 1972, was the turning point in the life of

Shri

Chandrashekhar Dharmadhikari. It was crucial too. He was appointed as a Judge of the High Court of judicature at Bombay. He had no inclination to become a High Court Judge. When he was asked, he tried to avoid it because somehow his mind was not prepared to accept government service. Dada, his father, was also of the opinion that he need not go in for the High Court Judgeship. But if not against Dada’s wishes but against his principles, Chandrashekhar accepted the post of High Court Judge. Probably, he felt that there are always glittering prizes to look forward at the Bar. But a time comes when one feels that it is better to decide cases, lay down the law, help the development of the law, rather than spend all the time arguing other peoples’ cases. Further when an offer of this type is made, it should be accepted, as it also affords opportunity to do public duty and service to society. Chandrashekar Dharmadhikari’s grand father, Trimbakrao alias Babasaheb was in judiciary. He was known for his honesty, sense of justice and impartiality. By all standards he was a saintly man. But because Dada Dharmadhikari was involved in freedom movement, Babasaheb had to retire only as Additional District Judge. Those junior to him and with lesser abilities got promotions to higher posts. In order to complete the disjointed chain of service in judiciary once again, Chandrashekhar’s uncle Ballakaka and other well-wishers as well as his wife Tara insisted that he should accept the post of High Court Judge. When he was offered the post, Dada was at Bangalore. There was hardly any time to take his advice. Chandrashekhar, therefore, accepted the post against the principles of Dada. There was a note in Dada’s diary which Chandrashekhar could only read after his death. “Bang told me that Chanduraja has become a High Court Judge. Not a pleasant news. After all a government servant.” However, in his letter from Bangalore Dada conveyed his blessing to Chandrashekhar saying: “Today everywhere, all concerned resort to all sorts of tactics to bring political, economical and social pressure on Judges. Muscle power seems to threaten society at large. Under such circumstances, may the virtuous deeds and merits of your mother and Babasaheb, give you strength to face the evil rampant everywhere”. These were Dada’s feelings then, which are true even today.

Be Impartial But Not Impassive

Chandrashekhar’s mother, whom Dada used to call “Malkin”, was regarded as a woman of strong determination, uprightness and fearlessness. She would never buckle under stress or bow down before any threat. Impartiality coupled with sharpness of intellect and keen sensitivity marked her personality. Dada used to emphasize that the Judge ought to be impartial but not impassive. A stone is not considered as a Sthithprajana. Stone is a stone. If a person is not stone. impassive, then he cannot be regarded as Sthithprajana. That is why justice is impassive, God. The spiritual feature of justice involves nipaksha {nirvair] and nirbhaya;. This was the basic “mantra” of Chandrashekhar’s judicial career. He was aware that he may not add to the reputation of Dada’s name and fame. But it would be enough, if he could maintain his reputation or at least not to bring any disgrace to it. He still holds on to this belief. In those days when a person joined the High Court as a Judge, the Chief Justice administered the oath to him in his Chamber and no formal ceremony was organized as done in the Supreme Court; and now even in High Court. In the Supreme Court oath taking is a ceremonial affair. The whole court and the most of the lawyers assemble in the first court. The Chief Justice calls the new Judge by his side and administers the oath to him. Now this method is also followed in some of the High Courts. The Oath of office was administered to Shri Dharmadhikari on 13th July 1972 at Bombay. At the ovation given to him by the Bar on 14th July 1972 at Nagpur Bench, Shri M.N. Phadke on behalf of the High Court Bar Association, Shri V.R. Manohar on behalf of the Maharashtra State Bar Council and Shri P.G. Palshikar, Assistant Government Pleader spoke highly of the qualities of head and heart with which Shri Dharmadhikari is endowed. In reply Justice Dharmadhikari said: “Readiness to understand and appreciate another man’s point of view is the very essence of search of truth. This is not tolerance, for, we tolerate something we do not like. This is not charity of judgment either. This is humility, a distinctive characteristic of an attitude of an enquiry. There can be no compulsion, no coercion in search for truth. One is ever eager to understand and appreciate another man’s point of view, because the freedom to think has no meaning if one has not the freedom to think differently. It is not a concept, nor a doctrine nor an abstract principle. It is the content of one’s life. This is what I have learned from my illustrious father who is

above all a representative of a normal unlabelled and uncommitted common man and to whom I owe everything in my life. “We are living in a very strenuous time; these are times, which challenge best of our talents, not only our talents but our resourcefulness. They challenge our very manhood. Among other difficult problems, the problem of juniors is a problem of all problems for the legal profession and if we keep this fairly large section of the Bar in the state of discontent, the whole fabric of the Bar will lose its fair name. It has been my experience that the junior members of the Bar are really good, competent and have potentialities. They only need fatherly affection and attention from the senior members. Life is nothing without mutual relationship. This attitude of sharing is the test of fellow-feeling. This feeling of unity and fraternity is the foundation of relationship amongst the members of the Bar, for which this Bar was always known. Let me tell you that a man who had been associated with you for all these years is bound to do well in future. This is the strength of your friendship and goodwill, as the great Philosopher Emerson had said, “Rings and jewels are not gifts but apologies for gift. The only gift is a portion of thyself; this is what the society expects from us in the cause of justice and rule of law.” Dharmadhikari continued: “All my friends at the Bar as well as in the office of the Government Pleader have bestowed upon me a portion of thyself, which is the treasure of my life. I will always preserve that treasure with pride and gratitude. I thank you once again for the kind words you have spoken about me and assure you that I will not only try but try my level best to prove worthy of the same.” Justice Chandrashekhar Dharmadhikari and Justice B.A. Masodkar were given Public Reception on 22nd July 1972 in Nagpur City. Chandrashekhar Dharmadhikari normally does not relish public receptions or felicitations. But Masodkar, who was his family friend and senior to him had already given consent on behalf of both for the public reception. Therefore, Chandrashekhar had to yield. The public reception was presided over by the Mayor of the Municipal Corporation, Nagpur and former Acting Chief Justice Bhavanishankar Niyogi was the Chief guest. A scroll of Honor was also presented to them. Justice Niyogi in his address said: “When we accept some post, it should be taken for granted that because we cannot please all, we are exposed to some criticism. So we prepare our mind accordingly. The real danger to a Judge is not

from such type of criticism because Judge commits mistakes and this is taken for granted by judiciary. It is for this reason a provision is made to go into appeal against the judgment of a Judge. For the position of a Judge and judicial process, the real danger is from such type of receptions and garlands, publicity and admiration published in the newspapers. It requires a different kind of mental set up or strength to digest praise and receptions. Most of the time it becomes difficult to take an impartial stand in regard to those who organize receptions, give dinners and write flatteringly. This therefore is the real hindrance in the process of rendering justice. It is hazardous and fraught with the danger that judges craving for self publicity might be tempted to impart justice by looking at the faces of flatterers or newspapers. Such people don’t want justice; what they want is decisions in their favor. Their persistent demand is that court should use its power but borrow intelligence from vested interests or establishments. They want an independent judiciary which will have independence to decide in their favour only.” Justice Dharmadhikari says: “For this reason it is believed, that Judge should have no craze for publicity. Except while delivering judgment, a Judge should not express his personal opinion. Conventionally, a Judge is supposed to have no opinion of his own. Even if he holds an opinion, he is not expected to express it, except in his judgment. But unfortunately, I have seen Judges, expressing their opinions, holding informal press conferences, distributing copies of their judgments with their photographs. At times such Judges make compromises to get desired effects. I would like to request newspapers, that they should avoid publishing names of Judges and Lawyers even while publishing judgments. It will be a great service to judiciary. A Judge who craves for publicity can never be independent or impartial.” After assuming the office, Justice Dharmadhikari said: “Bombay High Court has historical importance and a great tradition. Bombay High Court, during the regime of East India Company, had the status of the Supreme Court. Sir Edward West, the Chief Justice of this Supreme Court, ignoring the dictates of the British Government, fearlessly delivered his Judgments. As a result, he developed difference of opinion with the Governor. Even Christians boycotted Sir Edward and his family. But till death he never deviated from his principles. Mr. John Peter Grant, another Supreme Court Chief Justice had taken a decision to close down the Supreme Court and its offices because the Government did not follow the orders issued by the Supreme Court. For about five months the working of the

Court remained suspended. A new Chief Justice was appointed. Sir Grant resigned and went to England. The farewell given to him by Bombay people was unforgettable. There were 5000 signatures on the scroll of honor presented to him that time. The public stood determinedly behind judiciary. Before independence and even after independence, this court had a tradition of getting widely acknowledged and competent Judges. Hon’ble High Court Judges Ranade, Telang, Chagla, Gajendragaedkar, Tendulkar, maintained this noble tradition. Justice Dharmadhikari further says: “When I occupied this chair, it just came to my mind that, perhaps, I did not deserve this traditional grandeur; but the vibrations in my mind and heart felt a kinship with the great ones. I regard judiciary as the sovereign sway of Vasistharishi. No king or emperor could ever Vasistharishi. rule or wield power over the ashram of Vasistharishi. Independent judiciary is the soul of democracy. Justice is God gift. Therefore we use the words “Nyaya murti” and “Nyaya mandir”. The saint Eknath described, ‘Nayamurti by saying: Janachiye Netri Disse To Sansari Pari To Antari Sphatik Shuddha The definition of a good Judge reads like sainthood. He is compassionate but firm. His robes and all the trappings of the Court room can make a Judge rise above himself, and that is the reason why common man wants a judicial enquiry whether it is an accident or whether it is a fire. The common man’s confidence is the foundation of judiciary. Whenever public opinion was suppressed and oppressed, not only in this country but elsewhere too, it is the judiciary which protected the dignity of an individual. So far as religion is concerned, a dialogue with the Almighty is in the form of a prayer. It is a salvation for his soul. For the citizen, Court of Law is the only last resort, Sharan Teertha. As often said main question before the rule of law, and the democracy is as to “who will watch the watchman,” and it is firmly believed that persons, who believe in true judicial concepts, and spirituality, and morality alone can act as such watch dogs or watchmen. The role of a Judge is like that of a chaste woman. For the sake of satisfying the burning hunger of the belly, the chaste but starving woman does not sell off her chastity. It is a vow she lives by. The seat of justice is not the right place for ambitious men who are greedy for power. Such craving for power

and self gratification prompts them to make compromises with truth and untruth. They fail to see the difference between moral and immoral. Judiciary is the domain of such rishis and munis, who preserve its sanctity and chastity. They play their role with perfect integrity and retire. This alone, I believe, ought to be the tradition of judiciary.” Dharmadhikari had made up his mind to retire as a Puine Judge of the High Court, and not to sell his conscience for the sake of achieving higher positions. In the opinion of Justice Dharmadhikari: “After independence a new socialistic State needed a new type of law and order to remove social disorder and as the old concept has become out of date. Even accepting the fundamental principles of equality and justice, it is noticed that the said principle often vanishes because of inability of a person to pay the court fee and costs and to engage the services of a lawyer. This often separates rich and poor by creating a gulf. Therefore some day Judges themselves will have to act as models in observing this socialistic legality. Even so many years, after the independence we have not been able to change the socio-economic map of the village and/or town. In a democratic society existence of a law and order and respect for it, solely depends upon the respect for the law rather than fear of punishment. In a democracy sanction for the social legislation or a rule of law should be the sanction of public opinion. The protection of individual against civil power is now a days the most urgent problem within the frame work of our society. Therefore as observed by the Father of the Nation: “Function of institutions at the grass roots level which include Panchayats will be to revive honesty and industry, and to teach the villagers to avoid disputes, if they have such disputes to settle them. This will ensure speedy justice without any expenditure. Then you will need neither police nor military. In the true sense of term independence must begin at the bottom. Every village should be republic. Therefore a dispute free village is the only solution. If we want to achieve the goal, then the courts will have to approach the questions before them from broad socialistic point of view.” Justice Dharmadhikari says: “For achieving this object, Mahatma Gandhi wanted ever widening, never ascending circles. According to him, life will not be a pyramid with the apex sustained by the bottom. But it will be a oceanic circle whose centre will be the individual, always ready to perish for the village, the later ready to perish for the circle for the villages, till at least the whole become one life composed of individuals, never aggressive in their arrogance, but ever

humble to share the majesty of economic circle of which they are the integral units. In my opinion this oceanic circle system should be the basis of our judicial system starting from the subordinate judiciary and ending with the Supreme Court.” “There are various problems before the judiciary because of the increasing population there is bound to be increase in the litigation. Because of multiple legislations which regulate every sphere of life, litigation is bound to increase. Now a days the Government is the biggest litigant and it is noticed that it is most non-cooperative. Drafting of the enactments is very poor. Apart from this it is the general feeling amongst the public that there is no justice in any other department and the only forum left is the court of law. Therefore all questions whether they are educational, political or even spiritual, ultimately become legal problems and the judiciary is expected to resolve them.”

A Judge with a Difference
Thoughts of great men of law are not windfalls of inspiration. They are the product of years of contemplation and brooding. It was said of a great judge that the anguish which preceded his decision was apparent, for again and again, like Jacob, he had to wrestle with the angel all through the night; and he wrote his opinions with his very blood. But once when his mind came to rest, he was as inflexible as he had been uncertain before. Justice Chandrashekhar Dharmadhikari inspired confidence among all those who entered the court precincts that here justice is administered with an even hand in any legal combat between the State and the citizens, without fear or favour. Justice Chandrashekhar Dharmadhikari was High Court Judge for a long period of seventeen years. He gave to the High Court all his dedication and devotion. His thoughts day in and day out were centered round the High Court. He attended the Court even when he was not keeping well. He believed that when the Court was sitting, his place was there. He must have availed hardly ten days leave during his entire tenure. His wife Tara would often ask him in light vein whether he is wedded to her or to the High Court; whether he received extra pay for sitting in the court even when he was not keeping well. Dharmadhikari’s instant reply was that a conscience that remains unbridled was to him as gratifying as an extra month’s salary, and that he would be utterly

miserable if he remained in the house, while the court was functioning. It is worth while to find out as to how many times he availed Leave Travel Concession in his career as a Judge. One may not believe that he availed Leave Travel Concession only once or twice. He felt and believed that a Judgeship is not meant for enjoyment, but is coupled with a sacred duty. In those days there were no rules as to casual leave etc. Because a Judge normally never remained absent, unless he was physically incapacitated to attend. Judgeship was not treated as Government Service. Even after retirement one or two assignments he got, namely Chairman of Dahanu Taluka Environmental Authority or Chairman of Translation Committee, namely committee for translating Laws from English into Marathi. It is part of social commitment for which he is not charging any honorarium, nor is he accepting any perks. He is not interested in Arbitration, or Consultation work also. For him his pension is enough to lead need-based life. It is rare to find such a retired Judge, who is free from the greed for money. He has adopted a simple life as a matter of Choice. I have heard him saying that the amount of pension, he receives is adequate to live need-based life. Dharmadhikari proved to be an outstanding jurist, lucid in his exposition, polite in his manners and quick in catching the point. His one burning desire was to deliver real and substantial justice, keeping before him the ideal of the greatest Judge, Justice Oliver Wendell Holms, who said: “The law is not a brooding omnipotence in the sky, but a flexible instrument of social change…. In interpreting laws and considering their validity, Judges should not be oblivious to the felt necessities of time.” Justice Dharmadhikari showed the rare capacity to go to the jugular vein of every case that came before him. However, complicated the case may be, he could wade through the voluminous records and lay his finger on the focal point of the case promptly. He always treated Judgeship as service to society, as extended hands of goddess of justice and did his best to render justice. He used to read all the cases or briefs at home. He very well knew the facts of each case, and also the Law and case Law. He was known for this. He believed in deciding the cases and not mere disposal. He could hear and decide hundred cases per day at admission stage and at the later part of the day heard even final hearing matters. His capacity to evaluate arguments urged before him was really uncanny. His knowledge of fundamentals of law was remarkable. His mind was perceptive,

and as soon as a point was made out and argued on both sides, he knew how to decide. Very few Judges, I can say without fear of contradiction, equaled him in legal acumen and analytical faculty. His grasp over the essentials enabled him to write numerous judgments, which were exemplary in their conciseness, logic and simplicity. In the phrase of R. K. Stevenson, he was always faithful to the, “piety of speech.” He did not suffer fools gladly. He snappily put an end to any argument, which savored of court and humbug. Detesting hairsplitting technicalities of the law, he enjoined listening to crisp, precise and logical presentation from counsel. He would cut short any repetitive counsel. He never interrupted a good argument or endured the prolongation of a bad one. A man of sturdy independence and uncompromising intellectual integrity, he was exact opposite of the Committed Judge, whom one writer has described as, “the mouse that squeaks under the Home Minister’s chair”. His life work stands a testimony to his whole-hearted devotion to the imperishable values of our constitution and his total commitment to the inalienable Human Rights. During the emergency in the country, all the rights of the citizens were squeezed or suspended. This was not acceptable to Dharmadhikari. He said: “When animals can have the right to life, why should it be denied to human beings? Everybody is born free. Life and Freedom, after all, is Nature’s gift. Rights given by constitution or by law are supplementary. How could it be squeezed to justify the notion of a lawful State? – a Rule of Law.” After the declaration of Emergency, the Fundamental Right of citizen enshrined in Article 20 of the Constitution came to be suspended. Meaning thereby that a citizen had no right to life and even if government kills him illegally, he has no right to approach the Court for relief, because that right also stood suspended. In Krishna Mahadeo Ghatate’s case (AIR 1975 Bom 325), Dharmadhikari held that apart from Article 21 of the Constitution, citizen has a right to life and liberty. In substance, he held that right to life and liberty is a natural right and human right also. Therefore, if a citizen is deprived of it illegally he can approach Court for relief. He held that even during Emergency the Rule of Law prevailed. His observations that, “the laws embody a code of conduct and self-discipline which a nation adopts and enforces through the machinery of Courts. Rule of Law is not merely a concept. It is neither a doctrine nor an abstract principle. It is a way of life solemnly adopted by the nation. It is not a fiction, but a reality of

our life. In substance it embodies a principle of rationality, which is intended to strike against arbitrary and discriminatory action taken by the State. Rule of Law is basic principle and therefore, even in Emergency, Rule of Law is not suspended.” Holding thus, he entertained habeas corpus petitions and released detunes, who were detained illegally. This was a bold decision. Of course there was a threat that he may be transferred out of Maharashtra to any distant and disadvantageous State. But he overlooked the said threat saying: “I was never scared of transfer, because I love every part of my country. Therefore, I would not have felt uncomfortable at all, had I been transferred to any place in India. I learnt from Dada to preserve national outlook and abstain from falling into the troubled waters of regionalism. I would ever be answerable to my basic post as Dada’s son. The rest is all exofficio.” For his bold Judgment he was complimented by Justice Chagla, who put his hand on his shoulder and said, that he was proud of him (Dharmadhikari), of Unfortunately the said judgment was reversed by the Supreme Court in famous ADM Jabalpur case. Dada’s colleagues suggested that it would not be proper for Dada to stay with his son Chandrashekhar since he is High Court Judge. That would land him in trouble. Chandrashekhar Dharmadhikari’s response to this was: “I had to decide as to how many compromises I should make to observe regimen to keep on hanging to the post of a Judge? If my father could not stay with me, I had no interest in the post of a Judge. In fact after Dada’s death he felt like relinquishing the High Court Judgeship. Justice Dharmadhikari had to pay a heavy price for his Judgments. Though recommended by the Chief Justice of India Justice R. S. Pathak, government overruled Dharmadhikari’s name for the appointment as Chief Justice of a High Court or to be Judge of the Supreme Court. To the stature of such a Judge, Chief Justiceship of a High Court or a Judgeship of Supreme Court could have added nothing. He was already hailed as Ramshashtri of Modern India. Anonymous letters leveling baseless charges were sent to Delhi against Justice Dharmadhikari. The main charges were his association with Jayaprakash Narayan; the statement of Dada that emergency is a period of terrorism and cruel administration; his independent views and staunch belief in human values. The Editor of one of the Daily News Papers of Maharashtra launched a scathing course his father was proud of him as well.

attack against one of his judgments. Some of the senior editors advised him to take action against the said editor under the Contempt of Court Act. But he did not feel like making the use of the said Act, believing that Satya Mevo Jayate is our motto and ultimately truth will prevail. He went through mental torture and humiliation, but tolerated it thinking that it is all part of the game. He followed Mahatma’s path of going all alone and did whatever possible through pen of the Judge. He says: “A Judge is always put on test to suffer. In the history Rama had to undergo hardship, not Ravana; Krishna had to undergo hardship, not Kansa; Pandvas had to suffer, not Kauravas. A Judge, if he is on right side safely comes out of the criticism. And that is why people have faith in judiciary even today. Media in fact, should see that while hitting the scorpion sitting on the idol of Shiva, the idol is not hit.” During emergency, Judges were classified in two categories namely Progovernment and anti-government. Justice Dharmadhikari was placed in the second category. But he never went for compromise on truth and untruth, because he believed that a Judge cannot be pro or anti, he is only a Judge. In deciding the habeas corpus matters as he did, Justice Dharmadhikari played a memorable role at the most critical juncture in Indian history. Generations to come will admire his historic judgments as a shining example of judicial integrity and courage and cherish it for the abiding values it embodies. He was brave enough to call the period of Emergency as the days of Judicial Impotency. Impotency. The two indispensable bulwarks of democracy are a free press and an independent judiciary. Justice Felix Frankferter said: “The court has no reason for existence if it merely reflects the pressure of the day. Our system is built on the faith that men set apart for this special function, freed from the inferences of immediacy and from the deflections of worldly ambition, will become able to take a view of longer range than the period of responsibility entrusted to Congress and Legislatures.” Justice Dharmadhikari says: “So long as there is judiciary, marked by rugged independence, the citizens’ civil liberties are safe even in the absence of any court-iron guarantees in the Constitution. But once the judiciary becomes subservient to the executive and to the philosophy of the party for the time being in power, no enumeration of fundamental rights in the Constitution can be of any avail to the citizen, because the courts of Justice would then be replaced

by the government’s courts. If the salt lost its savor, wherewith shall it be salted?” Jawaharlal Nehru, the first Prime Minister of India on 24 May 1949 in the Constituent Assembly said that our Judges should be first rate men of the highest integrity who could stand up against the Executive Government and whosoever may come in their way. This is what Justice Dharmadhikari did during Emergency. Detachment and intellectual integrity characterized the entire judicial career of Chandrashekhar Dharmadhikari on the Bench of the Bombay High Court. He has left a mark on the constitutional law, which will have a great significance for the future of our nascent democracy. It would not be too much to say that Dharmadhikari tempered the predatory instincts of the State with justice and fairness. Anatole France once said: “In its majestic equality, the law forbids the poor to sleep under bridges, to beg in streets and to steal bread. Justice is made to give everyone his due, to the rich his riches, to poor his poverty.” Whereas the convention of Human Rights lays down that protection of the individual, in his dignity, against the Civil and State power is now a days most urgent problem within the general context of judicial protection. Duty of the Court is to cast aside formalities of the Court scene and approach the question from broad point of view, that is, to do substantial justice. Otherwise, as well said: “There are three major gambling dens in our country-race course, stock markets and law courts. Many times though the case is decided, judgment is delivered but it is described as operation is successful, but patient died, because it is difficult to say that justice is done.” During Emergency, in one of the cases, a lawyer had the impertinence to suggest to Justice Dharmadhikari in the course of his arguments that if he decided the case against the government, the court would lose the respect of the people. Dharmadhikari promptly said: “No consideration of popularity can weigh with us. We took our oath when we assumed office and we propose to be true to our oath.” Justice Dharmadhikari once said that the Father of the Nation, Mahatma Gandhi, who was known as one man army had an evening walk at Wardha, with his hand on his (Dharmadhikari) shoulder. Then how can he bend and for what? How can he bring to disrepute the Father of the Nation and his own father, who stood up against the mightiest British Power.

The Oath or affirmation by Judge
The Constitution of India obligates the Indian Judiciary to reach the goal of securing to all its citizens–Justice, Liberty, Equality and Fraternity. How this goal is to be achieved is beautifully summed up in the form of oath or affirmation to be made by the Judges of the Supreme Court and High Courts while entering upon the office. Swearing in the name of God or making a solemn affirmation a Judge ordains himself:i) ii) iii) that I will bear true faith and allegiance to the Constitution of India as by law established; that I will uphold the sovereignty and integrity of India; that I will truly and faithfully and to the best of my ability, knowledge and judgment perform the duties of office without fear or favor, affection or ill-will; and; iv) I will uphold the Constitution and the laws.

The oath administered to a judge ordains him to uphold the Office as a citadel of public justice and public security to fulfill the constitutional role assigned to the judiciary. Analyzing the Oath Justice R.C. Lahoti, former Chief Justice of India says: “Every word and expression employed in the oath of a judge is potent with a message. The message has to be demystified by reading between the lines looking beyond what meets the eyes. “An option to swear in the name of God or to make a solemn affirmation is suggestive of secular character of the oath. “A judge must bear not only faith but ‘true faith’ and ‘allegiance to the Constitution of India. The oath demands of a judge not only belief in constitutional principles but a loyalty and a devotion akin to complete surrender to the constitutional beliefs.” Justice Lahoti further says: “Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, the need for an independent

and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favor, ill-will or affection. Justice without fear or favor, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every judge to the people of this great country…. an independent and impartial judiciary is the most essential characteristic of a free society.” Justice Dharmadhikari functioned as a Judge without fear or favor, affection or ill-will. He never bowed before the so called Governmental supremacy. He also did not compromise principles for ambition. Justice Lahoti also says: “The arch of the Constitution of India pregnant from its Preamble, Chapter III (Fundamental Rights) and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice–social, economic and political–to every citizen through rule of law. Existing social inequalities need to be removed and equality in fact is accorded to all people irrespective of caste, creed, sex, religion or region subject to protective discrimination only through rule of law. The Judge cannot retain his earlier passive judicial role when he administers the law under the Constitution to give effect to the Constitutional ideals. The extraordinary complexity of modern litigation requires him not merely to declare the rights to citizens but also to mould the relief warranted under given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts. In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.” The judgments delivered by Justice Dharmadhikari stand the testimony of what Justice Lahoti said.

Land Mark Judgments of Justice Dharmadhikari
I do not propose to deal elaborately with the various land mark judgments of Justice Chandrasekhar Dharmadhikari, because that will require writing a separate book. His judgments regarding Preventive Detentions, Children, Cooperative Societies, Labor and Tenancy laws, Mental Hospital at Pune and the conditions therein, Prisons and the remuneration paid to the prisoners for the

work taken from them, which was less than the minimum wage, Prohibition of Cow Slaughter and the State duty to bring about the Prohibition of the Consumption of intoxicating drinks and drugs, about the validity of various Legislations and interpretation of Statutes, decision about the power and jurisdiction of Lok Ayukta etc., are not only land mark judgments but laid down a philosophy. Credit for prohibition of consumption of liquor and drugs in Wardha District, which is known as Gandhi District must go to Justice Chandrashekhar Dharmadhikari. In his view the expansion of liquor manufacturing and Lottery are nothing, but a conspiracy by capitalists, against the poor man, so that his poverty will never end. These are the means of exploitation. Distributing Licenses to the Political Party’s Workers, for opening liquor shops, has become a normal phenomenon. His agony is that Directive Principles of State policy are not incorporated in Political Party’s Political Statements. His following observations about Co-operative Movement and Legislation are pertinent: “It cannot be forgotten that Co-operative Societies Act has been enacted keeping in view the Directive Principles of the State Policy as enshrined in the Constitution of India. Co-operative Movement is a socio-economic and moral movement. It is a part of the scheme for decentralization of wealth and power. Collective power intoxication is not co-operation. Co-operative Movement cannot be permitted to be polluted by group politics. Co-operative capitalism or despotism is not co-operation. On the other hand co-operation is a substitute for self-interest of an individual or groups of individuals, for the benefit of the whole community. The so-called broad-based mandate theory cannot be pushed to ridiculous extremes to convert the Co-operative Movement into an arena or ‘akhada’ of power politics.” Justice Chandrashekhar Dharmadhikari’s one more agony is that the Leaders are becoming the Dealers, and every Political Party is a conspiracy against a common man.

Independence and Impartiality
According to Chief Justice Lamer: “The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to an end. If judges could be perceived as “impartial” without judicial “independence”, the requirement of independence would be unnecessary. However, judicial independence is critical to the public’s

perception of impartiality. Independence is the cornerstone, a necessary prerequisite for judicial impartiality.” The concept of judicial independence has been described in one of the judgments of the Supreme Court of India thus: “To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behavior. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fiber not susceptible to any pressure, economic, political or of any sort. The actual as well as the apparent independence of judiciary would be transparent only when the officeholders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behavior of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.” Unless the judges function without fear and favor, the question of their being impartial or independent does not arise. “Judges owe their appointment to the Constitution and hold a position of privilege under it. They are required to ‘uphold the Constitution and the laws’, ‘without fear’ that is without fear of the executive; and ‘without favor’ that is without expecting a favor from the executive. There is thus a fundamental distinction between the master and servant relationship between the government and the Judges of High Courts and the Supreme Court.” Independence and impartiality and objectivity would be tall claims hollow from within, unless the judges be honest – honest to their Office, honest to the society and to themselves. “…the society’s demand for honesty in a judge is exacting and absolute. The standards of judicial behavior, both on and off the Bench, are normally extremely high. For a judge, to deviate from such standards of honesty and impartiality is to betray the trust reposed in him. No excuse or no legal relativity can condone such betrayal. From the standpoint of justice, the size of the bribe or scope of corruption cannot be the scale for measuring a Judge’s dishonor. A single dishonest Judge not only dishonors himself and disgraces his office but jeopardizes the integrity of the entire judicial system. A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature. The slightest hint

of irregularity or impropriety in the court is a cause for great anxiety and alarm. ‘A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State. But a Judge must keep himself absolutely above suspicion like Caesar’s wife; to preserve the impartiality and independence of the judiciary and to have the public confidence thereof.” To perform the duties of judicial office without fear or favor, affection or illwill is the same thing as performing the duties with independence, impartiality and objectivity. In order to achieve this certain degree of aloofness is required to be maintained by the judges. According to Justice P.B. Gajendragadkar – “Judges ordinarily must observe certain rules of decorum in their social behavior. A little isolation and aloofness are the price which one has to pay for being a judge, because a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down in this matter, but some discretion must be exercised.” A complete seclusion from society might result in judges becoming too removed from society and the realities of social life. Common knowledge of events and robust commonsense need knowledge of human behavior but for which the judge may be incapacitated from doing complete justice or exercising discretion in the given facts of a case before him. An isolated judge runs the risk of viewing facts in a vacuum which in its turn may lead to an unjust decision. To strike an equities balance between the need for maintaining certain degree of aloofness and the necessity for moving in society to understand it so as to be a practical judge, he shall have to conscientiously keep a vigil of his own movements and decide thoughtfully where to go and where not to go. Experience and caution would be the best guide of a judge in this regard. He ought to remember that what he thinks of himself is not so material as to how people would perceive and interpret his movements and presence at a given place. (M.C. Setalvad Memorial Lecture by Justice R.C. Lahoti) Justice Benjamin Cardozo said: “The work of a Judge was in one sense enduring and in another sense ephemeral. What is good in it endures, what is erroneous is pretty sure to perish. The good remains the foundation on which structures will be built. The bad will be rejected and cast-off in the laboratory of years.” Justice S.R. Khanna, in his book, “Law, Men of Law and Education says: “The real test of independence of judiciary arises when times are abnormal, when atmosphere is surcharged with passion and emotion,

when important political personalities get involved and when those in power seek to prosecute their opponents under the garb of prosecution and detention. Law knows of no finer hour than when it cuts through formal concepts and transitory emotions to come to the rescue of oppressed citizens. Likewise, the true test of our allegiance to the rule of law, civil liberties and traditions of strong Bench and Bar comes when times are difficult and there is a brooding sense of fear. It is then the mettle within each one of us is put to test.” Justice Dharmadhikari was one of the few judges who satisfied that test during the days of emergency. He then displayed an indomitable spirit and rare courage. It is said that without courage, there can be no truth and without truth, there can be no virtue. Till such times as the springs of nation’s faith and hope all dry up, there would always be some amongst us whose life is cast in a heroic mould, who provide the profile in courage, who know how to swim against current, who put principle above expediency and who are prepared to pay the price for their allegiance to certain values and suffer for their convictions. Justice Chandrashekhar Dharmadhikari paid price for his allegiance to values and suffered for his convictions. There is an immeasurable amount of good in Justice Dharmadhikari’s long series of judgments. They bear the impress of a great and cultured mind-quick in perception, broad in vision and fresh in approach. They also speak for his philosophy and courage of conviction. He sustained the people’s life and liberty, fundamental as well as human rights. He was a Judge with diamond-hard judicial and social convictions. He was free from personal ego. Essentially he is a democrat, open-minded and willing to listen and learn. He believed in doing substantial justice. His judgments are still regarded as hall-marks of learning. His courtesy and amiable manners made all Counsel at home in his court, despite the exceptionally swift disposal of their cases. He always helped and encouraged junior members of the Bar, because he believed that on the upcoming Bar, the future of judiciary depended. The lawyers, who were associated as juniors in his office, when he was practicing, today are adorning the Bench. The way Judge decides, depends very often upon his background, his temperament, his ideals and his outlook on life and of life. It is these that

constitute, again to quote, what Justice Holms called the Inarticulate major premise. When a case is evenly balanced and one has to decide one way or the other, one will tilt his balance in accordance with one’s “inarticulate major premise invariably worked in favor of the poor and the venerable. It is they who need the protection of the Court more than the rich and the powerful. When asked, Dharmadhikari said: “Justice demands that you should try to redress the balance, since it is usually weighted against the weak and the venerable.” I am reminded of what Daniel Webster said and I quote: “The power of the clear statement is the great power at the Bar. It is also great power on the Bench.” And Justice Dharmadhikari had it in pre-eminent degree. To the Romans, Justice was a Goddess whose symbols were a throne that tempests could not shake, a pulse that passions could not stir, eyes that were blind to any feeling of favor or ill-will, and the sword that fell on all offenders with equal certainty and with impartial strength. This goddess brooded over Justice Dharmadhikari’s Court but her stern features had relented into compassionate smile, and the language of the statute sometimes subjected to severe strain when one of the parties before the Court was: “The ranker The tramp of the road, The slave with the sack on his shoulders Pricked on with the goad The man with too weighty a burden, Too weary to load.” Justice Dharmadhikari was a votary of that Goddess.

Procedure of Delivering Judgment
Bombay High Court developed the tradition of delivering judgments in the Court room itself as soon as the arguments are over. Justice Dharmadhikari says: “The effect of the Bombay tradition is that a Judge has to be all attentive when the case is argued; otherwise, if you reserve the judgment, you may or may not carefully follow the arguments, because your real process of thinking starts when you take the brief on your table in the chamber or at home. In the case of

lawyers, who are elaborate a Judge has all the more to be careful lest in moments of absent mindedness, he should miss a point, which the lawyer urged.” Justice Dharmadhikari further says: “The advantage of this procedure is that you read the brief at home, hear the arguments carefully, test them by asking searching questions, and compare the merits and demerits of the arguments on both sides. It is a kind of subtle perceptive, truth-finding, judicial cross examination and that properly done, enables the Judge to arrive at his conclusion before the hearing of the case concludes. Once you develop the habit of delivering judgments in the Court, you rarely have occasion to correct your judgment. I do not think, I have corrected my judgments after they were dictated. If in the dictation, any minor error of fact crept in or reference to any evidence was inaccurate, my stenographer put a query in the margin and that was all I had to consider.” Justice Dharmadhikari continues: “I cannot understand why, after the Judge has heard both sides, has appreciated all aspects of the matter, has cleared his doubts by putting questions to the counsel, he has still to think over the matter before he can decide the case one way or the other. It is much better to get the matter off your chest immediately. Your mind is full of the case, of the arguments you have heard of the facts that have been narrated before you. Everything is fresh. Reservation of judgment very often leads to Judges forgetting some of the facts, and also the arguments advanced before them. A further advantage is that as the judgment is being delivered in open Court any mistake or misstatement that a Judge might make while delivering the judgment, can immediately be corrected by counsel.” Justice Dharmadhikari seldom reserved his judgments, and where they were reserved, they were reserved because either they were not fully or satisfactorily argued or because their decision involved consideration of Sanskrit text, or too many judicial decision and he felt that it would be better if he did it in his chamber rather than in the Court. According to Justice V.R. Krishna Iyer the judges who do not pronounce judgment in time commit turpitude. He notes with a sense of sorrow – “It has become these days, for the highest to the lowest courts’ judges, after the arguments are closed, take months and years to pronounce judgments even in interlocutory matters – a sin which cannot be forgiven, a practice which must be forbidden, a wrong which calls for censure or worse.”

Recollecting his own experience Justice Iyer says: “In my time, it has been my agonizing experience that draft judgments which I sent to my brother sitting with me on the Bench for approval will sleep over it, never return it. So a hundred judgments were in arrears, when the judge retired quietly, unrepentantly. So, all the cases had to be heard again. These are matters which must be brought to the notice of the Bar because the Bar must arise, awaken and stop not till the goal of responsibility and accountability is reached by the Bench and the Bar together.” Justice Iyer advocated a comprehensive constitutional amendment creating two Commissions which will have extensive jurisdiction and original jurisprudence. One such instrument will be Judicial Performance Commission and the other an Advocate Performance Commission. Justice Iyer says: “The quality and process of appointment of judges and the performance with several decks and gambling potential today make the lead for an Appointment Commission and a Performance Commission imperative even the Bar needs toning up beyond Advocate’s Act. So, we need a comprehensive constitutional code among the Bench and the Bar so that the Rule of Law and the Rule of Justice may meaningfully serve the rule of life.” (Dynamic Lawyering:: V.R. Krishna Iyer, Universal Publishing Co. pp 6-7) Lord Denning puts it mildly by way of tendering good advice for a new judge. He says that when judgment was clear and obvious it was for the benefit of the parties and the judge himself that judgment should be delivered forthwith and without more ado. Though, the art is difficult and requires great skills but practice can enable perfection. Dealing with questions of law, Justice Dharmadhikari says: “One has to generally follow the precedents, which means earlier reported judgments on the points involved. However, one should not be completely hide-bound by the precedents, but should consider whether there were any special facts or features in the case, which justified distinguishing the earlier judgments.” Justice Dharmadhikari did distinguish the precedents in certain cases. But he justified it in his judgment.

Ivory Tower
The great American Judge Felix Frankfurt once observed: ‘Judges as persons or courts as institutions, are entitled to no ‘Judges greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the Bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt. (Dynamic Lawyering: Justice V.R. Krishna Iyer, Universal Law Publishing Co. p 9) Judges now a days have been subjected to considerable criticism. One of the criticisms is that they live in Ivory Tower and do not know what is happening in the society in which they live. When the attention of Justice Dharmadhikari was invited to this criticism, he said: “Whether the generalization is true or not, I do not think personally I was guilty of any such detachment or isolation. I stayed too often and too long out side the Ivory Tower.” According to Justice Dharmadhikari: “Any Judge can play one or more roles out side the Court-out side his judicial functions. Of course, isolation and detachment from social life are essential for a person who occupies that high post, because only by maintaining such a posture can one create in the public mind the requisite confidence in the man’s integrity, independence and detachment as a Judge, sitting on the Bench. But apart from this, it is always open to a Judge to say to himself, I shall do my allotted work, which is heavy enough as well as I can and for the rest of the time, I have a right to live my own private life. “On the other hand, a Judge might equally take the view: “Because I am a Judge, I do not cease to be a citizen. I should take a live interest in the contemporary scene. I should play my full part in all activities which concern the general welfare of my fellow citizens. I should become a part of the life of my city and even my State and my Country, in a way that does not, of course, affect my official role as a Judge. Being freedom fighter and Political sufferer and having had a Gandhian background, and being keenly interested in public life, and an

intellectual, cultural and artistic matters, I decided not only to be a Judge, but also a public-spirited citizen-cum-Judge.” However, he makes it clear by saying: “I made one exception to this. I made a clear cut distinction between civic and political affairs, and strictly and conscientiously eschewed all controversial political issues.” And true to this, he attended innumerable functions; inaugurated and presided over several conferences; delivered lectures in umpteen numbers. But the judicial person in him remained unaffected in the Court. He had no friends, and no foes, and no personal relations whatever. He tried to rise above prejudices and predilections. V.V. Shirvadkar said: “U;k;ewrh Jh panz’ks[kj /kekZf/kdkjh gs ,d izKkoku vkf.k O;klaxh fopkjoar vkgsr- vls vlwugh fo}RrsP;k vkf.k O;klaxkP;k map euks&;kr R;kauh Lor%yk cafnLr d:u ?ksrysya ukghU;k;/kh’kkP;k nwjLFk inkoj jkgwugh rs lHkskokjP;k lektkpa thou eqDri.ks ikgrkr] vuqHkorkr vkf.k R;kP;k fofo/k leL;kapk ckjdkbZus vH;kl djrkrR;kaP;k fopkjkauk vkf.k vH;klkyk dkgh fuf’pr thouewY;kap vf/"Bku vkgsR;keqGs R;kapk fopkj’ksk/k d/hkp /kwlj] <xkG gksr ukgh- rks usgehp Li"V] lk/kkj vkf.k izR;{kk’kh cka/kysyk vlrks- laHkzekoLFksr lkiMysY;k vktP;k vkiY;k lektkyk ;skX; vkf.k vko’;d vls fopkj ns.kk&;k FkskM;k rRofpardkarhy rs ,d izeq[k vkgsr-** Jayaprakash Narayan was Dada’s close friend. Very intimate relations had been established with Prabhavatiji and Jayaprakashji. Jayaprakashji had a separate room allotted to him in the house of Babanrao and also in Chandrashekar Jayaprakashji Dharmadhikari’s should not stay house. with Some people had advised that Chandrashekhar. Chandrashekhar

Dharmadhikari said: “During the British regime, Dada, in spite of being in freedom movement could live with his father- a Judge. I did not believe that even after independence, conditions will further deteriorate or minds become so small. So I respectfully requested Jayaprakashji to put up with me.” Once Shri S.M. Joshi called on Chandrashekhar Dharmadhikari at his residence. While returning he had no vehicle. Chandrashekhar suggested him to go in his car. S.M. Joshi said: “I want to go to a secret meeting and if I use your vehicle, you would probably get into trouble. Chandrashekhar Dharmadhikari earnestly appealed to S. M. Joshi saying: “What trouble I will receive in future, the mental trouble that a man of your stature is going on foot all alone, in spite

of my having a car, would be far more agonizing.” That was Dharmadhikari’s courage of conviction. He always thought what is sacred? Post or principle. One has to decide this some day or the other in one’s life. He all through his life subordinated post to the principles. Justice Dharmadhikari incurred criticism for his views and participation. His critics would say: “He tries to play to the gallery, but it is not really playing to the gallery when he argues political-cum-social-cum educational matters in which his personal convictions are involved.” Nothing was more alien to Dharmadhikari than a sense of advertizement, or a yen for self-importance, or a desire for selfself-advancement.

Lord Radecliff said: “Criticism is essentially a method of appreciation.” The criticism of a great poet or a play-write leaves his essential greatness untouched; or rather brings it out in a more striking fashion. And that is what happened with Justice Dharmadhikari. He was wholly impartial but not impassive.

Bid Adieu
On 20th November 1989, Justice Chandrashekhar Dharmadhikari bid adieu to the Bombay High Court. Shri Atul Setalvad, a leading advocate said: “Though it was something we knew had to come, it is still a distressing thought for all of us who regularly practice in the Bombay High Court that it is a High Court Bench without Justice Dharmadhikari. Over the past many years it was a comforting hope that the Benches might change and one’s matter would be before him. One might win, one might loose, but one could be confident that one of the finest legal minds had applied his wholly independent mind and the result would be fair and just. One of course, had to be prepared that the Judge’s diary would produce a binding judgment directly on point one had missed. Very upsetting to one’s ego and self esteem, but good for the client, and for the ends of justice. “It was always a great pleasure appearing before you and the loss to the Bench is not going to be easy to bear or make up. “It would have been a comfort to know that you were in the Supreme Court. We would have missed you equally but could have borne the loss comforting ourselves with the platitude that what Maharashtra had lost India had gained. “It is indeed distressing that dirty politics has prevented your appointment to the Supreme Court whereas far less qualified persons appointed.”

Justice D.M. Dharmadhikari of Madhya Pradesh High Court who later on became Judge of Supreme Court said: “You (Chandrashekhar) have left and indelible mark on the judiciary by your highly human approach. Your entire outlook on crucial legal and constitutional questions was to a large extent touched by your individualistic and human approach and the philosophy inherited by you from our late DADA. I have seen in your judgments an agonizing concern for the poor, haves-not and the under-privileged classes of the society. You could combine in your judgments, law with justice geared to help the helpless against the mighty. You have left behind an extremely good work for the posterity in the shape of your book, “Reflections on the Indian Constitution.” “I also feel that by your non-selection to the Supreme Court, the country lost a good opportunity of knowledge and genius of a person who could have done so much good to the institution and the citizens of this country.” Justice P.V. Nirgudkar of Bombay High Court said: “Many Judges would remember you for ever. Many Judges who are at present working in the lower judiciary including many District Judges are feeling that by your leaving High Court, they are losing their guide, their inspiration and their spirit of consolation. I have received such letters from many Judges asking me and telling me “now, whom should we tell our grievances, should put forward our difficulties, who would hear our difficulties with patience, who would appreciate the mofusil Judges’ problems.” Shri D.B. Karnik the then Editor of Maharashtra Times in his letter of 17th November 1989 to Dharmadhikari wrote: ^^U;k;nkukP;k dkeh vki.k tks vkn’kZ ?kkywu fnyk vkgs rks eqacbZ gk;dksVZkP;k ijaijsyk lktslkp vkgsvFkkZr eyk vk’pZ; okVr ukgh- dkj.k ,dk Fkksj lektlsodkpk lqiq+= gks.;kps HkkX; vkiY;kyk ykHkysys vkgs- i.k ijaijsps ikyu dsys tkrsp vls ukgh- vki.k ek= dS- nknkaP;k pkfj«;kph ijaijk rj dk;e Bsoyhp i.k vkiY;k ns’kkr vR;ar vko’;d vlysY;k lekt izcks/kukP;k dk;kZyk gkrHkkj yko.;kr iq<kdkj ?ks>u dS- nknkauh vkiY;kcny T;k vis{kk BsoY;k vlrhy R;k iq&;k d:u ,d ik>y iq<sp Vkdys vkgs-** Advocate Ashok Madhukar Joshi from Pune said: “The atmosphere of your Court and your prime presence has taught me many things whether it be law, language or uprightness. Your care for the downtrodden and the working class

has touched me deeply. In spite of the acumen for legal niceties you always emphasized on the healing abilities of the law instead of exposing the litigant to its harshness. You will surely go down in the history of those Judges who calmed flying spirits and even avoided revolutions in their spell.” Ms P.D. Ankalesaria, the Government Pleader of Bombay High Court said: “Your astounding grasp of law-in particular constitutional law, of which you have the most up-to-date knowledge and your human approach to problems which have come before you- have undoubtedly projected you as one of the most competent Judges of the Bombay High Court. Your many judgments which are reported will bear a testimony to this fact.” S.D. Vaidya, a Judge of District Judiciary in his book, ^iksVxhlkBh cdqGspk y<k* writes: ^^xfjcklkBh dk;nsfo"k;d eksQr lkg; lYyk ;kstuk egkjk"V~ ljdkjus jkcfo.;kl lq:okr dsyh- gk;dksVkZekQZr gh ;kstuk jkcfo.;kl lq:okr >kyh- R;kosGh tLVhl panz’ks[kj mPp U;k;ky;kps U;k;/kh’k gksrs- R;kaP;k ekxZn’kZuk[kkyh gh ;kstuk jkcfo.;kl lq:okr >kyh- R;akuh vR;ar mi;qDr ekxZn’kZu dsys- R;keqGs vusd ifjR;Drkauk R;k ;kstuspk Qk;nk >kyk o Qk;nk gksr vkgs- tLVhl /keZf/kdkjh ;akuk R;akP;k cgqeksy lsoscny /kU;okn- vkEgh U;k;ky;kr ukSdjh dj.kkjs yksd] jke’kkL=h izHkw.ks] cWfjLVj Nkxyk] tLVhl panz’ks[kj /keZf/kdkjh ;akuk vkeps [kkR;kps lar vkgsr] vls ekurks- R;keqGs vkEgh loZ U;k;ky;hu deZpkjh R;kaP;k vkpkj&fopkjkaP;k iky[khps okjdjh] VkGdjh] o ekGdjh vkgksr- ” Justice M.S. Vaidya said: “Justice Chandrashekhar Dharmadhikari has been a person who has all along acknowledged the debt of the Society and has done his best to re-pay the same. In a sense, the Service in the Judiciary itself is a Social Service because, dispensation of Justice is always good for the society at large, but, Justice Dharmadhikari has not restricted his activities only to that and has traveled far beyond the limited arena within which a Judicial Officer can serve the society. With his searching mind and intellectual qualities, he has scanned the social development in the past and has arrived at his own conclusions which are really revealing not only to a common man but also to the great social thinkers.” The tale of his seventeen long years in the Bombay High Court has been told in the pages of Law Journals, Magazines and Newspapers. However, his work

has gone much farther, for it has been woven into the texture of other men’s lives where it will continue to stir them to speech or action as occasions arise. Some of the things I have tried to say in my inadequate prose are beautifully expressed by a poet that I must let him speak for me: “Magnificence and grace Excellent courtesy, A brightness in the face. Airs of high memory. Whence came all these to such as he? No man less proud than he, None asked for homage less; Only, he could not be, Far off from happiness Nature was bound to his success.” Lionel Johnson (A Friend) Justice Dharmadhikari has the priceless inner satisfaction of feeling that he has lived above the fog in public duty and in private thinking. The following poem aptly applies to him as if it was composed for him.

“God give us Men! A time like this demands Strong minds, great hearts, true faith and ready hands; Men whom the lust of office does not kill; Men whom the spoils of office cannot buy; Men who possess opinions and a will; Men who have honor; Men who will not lie; Men who can stand before a demagogue And damn his treacherous flatteries without winking! Tall Men, sun-crowned, who live above the fog In public duty and in private thinking.”

The country has paid great honor’s to Justice Dharmadhikari like Padmabhushan and Honorary Doctor of Laws (Honoris Causa) and Awards instituted in the names of Ramshastri Prabhune, Mahatma Gandhi, Gopalkrishna Gokhale and Justice Ranade and also gave him important assignments, but all the while, he remained the gentle, modest, affectionate man. There are few persons whom the following lines of James Russell Lowell fit: His magic was not far to seek, -He was so human! Whether strong or weak Far from his kind he neither sank nor soared, But sat an equal guest at every board. No beggar ever felt him condescend, No prince presume; for still himself he bore At manhood’s simple level, and where’re He met a stranger, there he left a friend. Daniel Webster has used the following words, as if for Justice Dharmadhikari: “There is no character on earth, more elevated and pure than that of a learned and upright Judge. He exerts influence like dews of heaven falling without observations” When Justice William Douglas retired from the Supreme Court of the United States after a long tenure spread over three decades, a widely-read magazine, described him as, “the court’s grandest maverick, a rugged liberal with a shock of white hair, piercing eyes and a luminous regard for the First Amendment.” For the First Amendment, substitute “the compassion for poor” – And the description aptly fits Justice Chandrashekhar Dharmadhikari. Bombay High Court has become poorer after his retirement.

*********

A True Gandhian
A number of close associates have written about Chandrashekhar Dharmadhikari and presented him as he struck them in the various aspects of his multi splendoured eventful life. Apart from Chandrashekhar Dharmadhikari’s views on the varied aspects of life, what is most important is his basic approach and attitude towards human life itself, its challenges, and the direction in which man may proceed in order to fulfill his present assignment and assure his future great destiny, namely living a perfect life in peace, happiness and harmony. Nobody in this life, has dedicated himself so fully to Gandhian thought and action as Chandrashekhar Dharmadhikari. Even during his tenure as High Court Judge, he believed that the ‘thought’ is pure and impersonal. It is known as Gandhian, but it is not a Ism or Dogma. It is a way of life, ever flowing. Chandrashekhar Dharmadhikari remains Chandrashekhar Dharmadhikari with his own reason high and dry, with his intense search for truth of his own being and with a ceaseless pursuit for manifesting that truth through service of Daridranarayan. According to him, he has miles to go before, being a true

Gandhian. Gandhi was not Gandhian. He was Gandhi. There is much difference between being Gandhi and being a Gandhian. A master of words with a knack of making himself understood even by a child and with a passion of communications Chandrashekhar Dharmadhikari has been translating the idiom of Gandhiji in the simplest of alliterative and monosyllabic phrases all the time. He is positively of the opinion that Gandhi was all the time growing, dynamic and fresh. The problems we are facing today, were not in existence when Gandhi was alive. There cannot be ready made formulas or solutions to all the problems, we have to search them. Gandhi’s thought can only guide us. Many-a-times understanding a problem helps in finding its solutions. Chandrashekhar Dharmadhikari has been thinking how to apply Gandhian thought and approach to Indian conditions after independence and in a democratic set up. He legitimately and appropriately claims to follow not Gandhi, the man but Gandhi the ‘Idea’. Today, almost everyone in India concedes that Chandrashekhar Dharmadhikari is the trusted follower of Gandhi in action, but his not a blind follower. Chandrashekhar Dharmadhikari is one of the most important interpreters of Gandhi, both in thought and action. I may point out some of the most seminal ideas of Gandhi, which became the guiding stars for Chandrashekhar Dharmadhikari and the key-words which embody these ideas of Gandhi. “The whole meaning of human existence with its consciousness which has become self-conscious, and has also developed a conscience is, to know the truth, pursue the truth, to realize the truth and establish the truth by walking in its light. This way of putting things may seem abstract and metaphysical. The simpler way is to try to know the law of life and living, and fearlessly pursue the path of truth as one sees it from day to day. That which preserves, protects promotes life that which helps healthy living and the enfoldment of the life-giving faculties and powers of man leading to peace, happiness and harmony, both of the individual and the community, is the truth and the law of life, and living. Gandhi came to the conclusion that non-violence along with its dynamic and positive aspect of love is the true law of the human species. That is how in Gandhi’s mystique truth and non-violence are inextricably linked up as ends and means-means are ends. While man is faced both with life and death, love and hatred, non-violence, light and darkness, man has to choose, without hesitation, life, love, non-

violence, and light. These are the constructive forces of life and are the Laws which lead to the fulfillment of life. The other most important idea is insistence on truth, holding to truth at all risks and fearlessly and firmly. The keyword is Satyagraha; it is not always resistance for the sake of resistance but it is steadily walking along the path of Satya, truth, and promoting it by all possible means and trying to establish it with an indomitable will but always by pure, unselfish, and moral means and non-violent ways. No Satyagrahi can be a true one who is not full of love for all, including the worst enemy.” Chandrashekhar Dharmadhikari adds that Gandhi was not only a Satyagrahi but he was also a Satya-grahi, that is, one who could grasp and comprehend truth properly and in its essence in his own life. Yet another idea is that of the good of all, the welfare of all, the development of all in the universe, there is no place in Gandhian ideology for the liquidation or elimination of any one, and the welfare of some at the cost of some others. The keyword in this context Satyagrahi the full and perfect development of each individual goal but a social achievement and each individual has to seek his fulfillment in achieving the perfection of the whole community, of the whole of humanity. It is in a sense an assistance in right direction, and love in its foundation. When the world is caught in the clutches of science and technology leading to concentration of political as well as all other kinds of power, and consequent coercion of the masses and mental slavery of the intellectuals, when man’s natural fine sentiments of love, compassion and service have been blotted out by the brutal struggle for existence and ruthless competition between individuals and groups and nations, the sovereign remedy is decentralization of power. This has to begin at the grass roots, at the village level. Toyenbee has remarked that inordinate economic expansion is both immoral and impracticable; it is immoral because all greed encroaches on the same and/or similar needs of others, and it is impractical because there is not enough material good anyway. It is in this context that Gandhi by himself and also as interpreted by Vinoba is worthy of attention. Chandrashekhar, in his lectures, presents a picture of Gandhi as he understood him. He lets the listener or reader have a glimpse into what, at the

early stage of his life, led him to seek Mahatma Gandhi and as to how, right from the start, it possessed and in due course saturated him. Chandrashekhar Dharmadhikari in his own way carried Gandhi’s message of Sarvodaya wherever he traveled in India and the world. He claims: “My inner self witnesses that I have striven conscientiously and diligently to act on Gandhiji’s path to my best. Whatever of his thought and teaching I have been able to like and assimilate, I have been trying to practice in full awareness each and every moment of my life. Today, I am doing only his work. My thinking reflects his line of thinking in essence. Though in an insignificant and small way, since I am a small man. The present day world is torn with conflict, iniquity and exploitation. It finds itself caught hopelessly in the tentacles of a political octopus and prostrate under the curse of war and piling armaments. Science has become a slave in the hands of power and capital. Gandhi symbolized mankind’s effort and hope to rid itself from this incubus of war and violence stalking the globe. And although Gandhi is now no longer in our midst in flesh and blood, the way he indicated as a panacea for all ills remains with us as his lasting legacy. This legacy of thought and action needs constant revision and experimentation, in face of varying situations, so that it never becomes sterile. Only in this way the thought remains ever-growing and ever-creative and its potency goes on increasing with the pace of time. In this task of furthering Gandhian thought and programme, Chandrashekhar Dharmadhikari’s contribution has been matchless. Thus, among Gandhi’s followers Chandrashekhar Dharmadhikari’s place is indisputably unique, both personally as well as ideologically. It is therefore but natural that the present generation, to whom Gandhi is fast becoming a figure in history, may feel curious to know how the greatest of his followers who is still living and moving in their midst, viewed this Great Man. Chandrashekhar Dharmadhikari saw Gandhiji for the first time in 1937, when he was hardly 10 years of his age at Sevagram in Wardha. In retrospect, he says: “God in his infinite mercy placed me at his feet. When I examine my heart and my life today, I find that both are firmly established at Gandhiji’s feet. I cannot say how far I have been able to put in practice his teachings. He himself would not know and neither would any one else. Only God knows. This much, however, I can say without hesitation: What little of his teaching, I could make my own, whatever especially appealed to me, I have been incessantly striving with great care to practice-indeed with much greater care than when Gandhiji

was alive. I have always have the feeling of Gandhiji’s presence before me, behind me and above me.” Chandrashekhar Dharmadhikari often quotes Sankaracharya’s saying that the greatest boon a man may have are three: Being born in a human form; a craving for Mukti; and patronage of great men. Recollecting these words of Sankaracharya, he says: “I am indeed blessed that I was born as a man, was beaten by the bug of Mukti and privileged to have blessings of Mahatma Gandhi and to enjoy the company of Vinoba and my father.” He further says: “It is one thing to read in books the words of saints and Mahatmas and quite another to live in companionship with them, to have their blessings and to work under their guidance, to watch their life. It was my great good fortune that this was granted to me.” He continues: “I have come in contact with several great men, who imagine that they are Muktas, perfect men. I was never drawn to any one of them. But the pull Gandhi, Vinoba and my father exercised on me was unique. I have never been influenced by any one the way I have been by Gandhi, Vinoba and my father. I have tried to learn Gandhi’s thoughts through my father.” It was Gandhi and Vinoba who initiated him into the philosophy of KarmaYoga. He says: “True, it is explained in the Gita. I saw its application only in the Yoga. lives of Gandhi and Vinoba. It was here that the Karma-Yoga of the Gita was most clearly illustrated. Gita enumerates the signs of a man of stead-fast intellect. Gandhi and Vinoba had all the characteristics of such a man. It is said that those who live under the shelter of the great become stunted in their growth; even as plants under shadow of a large tree become crippled for want of nourishment of which the tree deprives them. But the analogy of a tree does not fit great men. Those living under their wing are like calves in a cowshed. While a tree sucks up the nourishment that would otherwise sustain the vegetation under it; a cow, herself subsisting on grass, provides milk to her calf, which grows and prospers under her loving care. This was the experience of those who placed themselves under the wing of Gandhi. If one was bad, one became good on coming to him; if one was timid; one became fearless. Through him thousands earned glory, yet he considered himself the humblest of all.” What Chandrashekhar Dharmadhikari saw at Sevagram and Paunar it taught him a great many things. He realized that life is one and indivisible. Gandhi, Vinoba and his father never conceived themselves in the role of a Guru nor did they consider any one their disciple. Chandrashekhar attaches great importance to the institution of Guru, but considers himself neither anyone’s

Guru nor anyone’s disciple. What he learnt from Gandhi, Vinoba and his father is all that is still serving him . Whatever they wrote serves to guide him. He studied their ideas with minute care and endeavoured as best he could do to act according to them. It is not imitation but initiation. There is a beautiful Shloka about the Bhagwat Dharma, which applies equally to the way of Ahimsa discovered by Gandhiji. The Shloka says: “The Bhagwat Dharma is such that a man pursuing it with faith, will never fall into error. It is a way on which a man may walk or run with his eyes closed and will not fall.” When Chandrashekhar Dharmadhikari’s attention was drawn to this Shloka, he said: “This is the beauty, the simplicity, of the way Gandhiji has shown us. If we establish a Sarvodaya Social Order this is the only way we have to take.”

Unique Greatness
Speaking about great men and Gandhi, Justice Dharmadhikari says: “God has been extremely merciful to India. From the beginning of time it has seen the advent of innumerable great men who, in different degrees, have enriched our lives. Gandhiji forms the last and the best link in the chain of these great men of the past and the first in that of great men of the future. In Gandhiji’s teaching is summed up all that the great men of past have taught; in it too is to be found the seed of what the countless great men that are yet to come will teach. He thus represents a meeting point of the past and the future. This cannot be said of every great man. Though each, of course, special in his own way, those in whom the fruit of the past is contained along with seed of the future are very rare indeed. Gandhiji was one such. Everyone, of course, knows that Gandhiji was a saint. But besides being a saint he was also the founder of a new way of thinking. He provided us with a new outlook on life. It is not given to every saint to propound a new idea. Only a saint whose life has been shaped under a particular environment can propound a new doctrine. Though all saints are similar at heart they differ in intellect and genius. He whose genius is most needed at a particular age comes to embody the spirit of the age. Gandhiji was such a man. Many great men are compassionate and loving. Gandhiji was one of them. Compassion and love made him work for people to the last. Everyone accepted him as his own, for he talked with everyone from his own level. If someone had a

pain in the stomach, Gandhiji would suggest a cure. If a couple had conjugal misunderstanding for some reason they would run to Gandhiji for advice. He in his turn, in the midst of important preoccupations, would find time to devote to their personal problems, take keen interest in them and offer suitable advice. He talked as a mother, responded as a mother and so people unhesitatingly rushed to him. Thus his compassion found expression. Among children he was a child; a child-like man. Among women he was one of them. They talked to him frankly. Everyone thought he was a member of their family. All those close to him called him Bapu. Later the whole country came to call him Bapu and later still the Father of the Nation. “But when I think of Bapu,” Chandrashekhar Dharmadhikari says, “I think of him more as a mother than as a father. Our holy books say: “The glory of the mother is a thousand times that of the father”. Bapu was as much a mother as he was a father. In Sanskrit it means Pitraun, a combination of both. Whenever we think of him, the quality that comes most strongly to mind is his love. His love was experienced as much by those who were far away as by those who were near him. Of all his qualities his love and compassion were the chief. Thus we found in Bapu a link between the past and the future, a saint who embodied the spirit of the age, a social thinker of the class of the law-givers, a great man overflowing with kindness and motherly love. Once somebody asked Vinoba: Should one address Gandhi or Gandhiji? Vinoba replied: “If he considers him a human being, a human being worthy of respect, he should address Gandhiji. But if he thought of him as an idea, it would be sufficient to address Gandhi.” Today Gandhi is no longer a person, he is an idea. That is why Chandrashekhar Dharmadhikari, in his talks and lectures calls Gandhi. He says: “We should be content that he has given us an idea and in the light of that idea we should do our own thinking. The individual becomes the mouthpiece for the thought. The strength lies in the thought. And just as the existence of the individual helps the thought, it may also cause harm to it. After the individual is gone, the pure thought alone remains. Gandhiji’s policies were utopian, but he was the only utopian in history of mankind who successfully practiced his utopia for the Swaraj of a nation of 350 millions. Another Gandhi has yet to take birth in India to practice utopian politics.

One label Gandhi was happy to have pinned on him was that of “Practical idealist. Gandhiji never dreamt dreams, he dreamt realities. There are innumerable instances which prove what a practical idealist he was? When he felt that some evil had to be destroyed, he at once planned a replacement. He did not merely say something was bad. He said, “This is bad, this must go and in its place this must come.” When he asked people to boycott British manufactured cloth, he came up with Khadi; when he condemned the Macaulay inspired system of education, he designed a system of national education to take its place which was based on productive labor and the elimination of the difference between physical and intellectual work; when he condemned the misuse of science and technology, that resulted in unemployment and concentration of power in the hands of a few, he organized the All India Village Industries Association to experiment with small-scale technology and decentralization; when he wanted prohibition to be enforced, he organized centres to supply Neera, buttermilk and other drinks. Every reform that he suggested, every advice he gave to others, he straight away applied to himself and his words and actions filled into each other like a glove on one’s hand. And so whatsoever happened he never lost integrity and there was always an organic completeness about his life and work. Even in his apparent failures he grew in stature. When asked what would be the one message he would like to carry to the World, - he replied: “My life is my Message.” Gandhiji’s life was a practical demonstration of how human beings can practice the principles of truth and non-violence in their lie. Such persons become much more powerful after death. For, with the perishing of the mortal body their shortcomings also vanish. What is left is only the perfect, pure, divine essence. The thoughts of the individual do not die with the individual. On the contrary, they shine even brighter. This is the reason why even after their death we celebrate their Birth Day. Thus, great men are more powerful after their death. When they become free of the body their life and thoughts pervade the atmosphere and inspire all. People’s hearts that are receptive to such thoughts and values can hear their voice. As the Shastras say, the word is imperishable. It is relayed into the air and if we are fitted with the right kind of receiver we can hear it. This is the way men get inspiration Bapu died so that he could enter our hearts. His name, his word, his thought will continue for ever to inspire us. He teaches how to live and die, for the future generation.

Death comes to all, but death by assassination seems to be an end reserved for the very greatest and the least deserving. History recalls many instances-Jesus Christ, Caesar, Abraham Lincoln, John. F. Kennedy, Martin Luther King to mention a few. Caesar dead is more powerful than Caesar alive. The crucifixion of Jesus Christ resulted in a great religion coming to birth which moulded the thoughts and minds of billions of people. The death of Gandhiji brought into existence a philosophy which is not only the basis of State craft in our country, but influenced people all over the World. Gandhiji emancipated himself by the conquest of desire and fear. He was the saint who was hero in life and martyr in death. In the words of Rabindra Nath Tagore. “The minds wrapped in a pall of fear The pilgrims asked one another Who is to guide us now? The old man from the East said, The one we have killed, will” Years ago Romain Rolland declared that he regarded Gandhi as “Christ who only lacked the cross.” We have given him the cross also. Gandhiji’s death was a classical ending of his life. He died with “Hey Ram” on his lips and love in heart. Even when he received the bullet wounds, he greeted his killer and wished him well. He lived up to what he preached Gandhiji is dead as Jesus Christ is dead as Gautama Buddha is dead. But he lives as they live. His message endures as their message endures. Indeed his message is no new message, no different than their message. “He has renewed,” said Romain Rolland, “for all the people of the West the message of their Christ, forgotten or betrayed. He has inscribed his name among the sages and saints of humanity and the radiance of his figure has penetrated into all regions of the earth.” Martin Luther King during his visit to India in 1959 said, “Gandhi was inevitable. If humanity was to progress, Gandhi is inescapable. He lived, thought and acted, inspired by the vision of a humanity evolving towards a world of peace and harmony. We may ignore him only at our own risk.”

Gandhiji died as he lived. Even in death he wore the crown of victory. And his death was mourned, not only by those he has liberated and served, but even by those from whom he had freed them. John Hanes Holmes said, “Always Gandhiji’s place in history is sure. In all reverence and with utter confidence, I would affirm that he belongs in the Majestic hierarchy of Buddha, Lao-tzu, Socrates, Jesus, and St. Francis. Our age is blessed by the presence of one more of the pure leaders of the spirit. Amid the furry of force and violence, bloodshed and slaughter, these save mankind from death, and patiently and ever steadfastly point the way of life. The sad thing is that Gandhiji, as he was, has not reached the younger generation, only the distorted Gandhi has reached them. Some thoughts of Gandhiji have reached the new generation through his followers and that too those followers who have been too much engaged in politics. At times the younger generation has experienced Gandhiji through those persons who followed him with complete honesty until independence was attained and thereafter deserted him with equal dishonesty. They kept on garlanding his statues. His true followers also did him injustice by being too rigid and not allowing the slightest modifications of the classical Gandhian thought. Those who ask others to follow the path shown by Gandhiji without themselves doing any thing of the kind constitute a class by themselves. They indulge in hypocracy in order to show gratitude to the soul of Gandhiji. The younger generation finds itself unable to relate to Gandhiji, to his vision, to his ideals mainly because, he is for them just one of the many cults handed down by their elders. President Zakir Hussain said, “The new generation does not know Gandhi and more may not know him unless you make him known. Gandhi is very much in the background. If you bring him to their notice and make them love him, have regard for him and for the things, you would have done a great deal.” Frankly speaking it is not only the younger generation to whom Gandhiji has to be introduced. The Father of the Nation is needed to be reintroduced to the older generation also. They have almost forgotten him and have started talking and behaving just contrary to what Gandhiji preached and followed. Today Gandhiji has been made object of ritual worship at his birth and death anniversaries.

Every year on Gandhiji’s birth anniversary, we pay lip sympathy to him. This great man is then forgotten for the rest of the year until next anniversary comes the next year. Gandhiji’s name is quite often mentioned in solemn reverence as one mentions the name of a saint or a prophet, but Gandhian activities are dying with a whimper all over the country. The gulf between the India of Gandhiji’s dream and the design of the Indian Government to take the country to the 21st century through modern technology is growing wider and wider. Gandhi caps and Khadi continue to be worn, but they are no longer the livery of freedom fighters and patriots and a symbol of devotion and dedication and honesty. Khadi has become a symbol of utter dishonesty and people look at it with contempt. The Khadi idea, as Gandhiji propagated is dead. Gandhiji extolled Khadi as the symbol of Indian humanity, of its economic freedom and equality. Habitual use of Khadi was a sign, he said, that the wearer identified himself with the poorest of the land, even though it may not be so soft and elegant in appearance as foreign fineries nor so cheap. There were many who called it coarse and ugly. Gandhiji rebutted this charge in his own way: “I deny that Khaddar is ugly. Want of the same deadness of a machine-made article is not a sign of ugliness, but it is a sign of life, even as absence of sameness in the millions of leaves of a tree is no sign of its ugliness.” Then again: “The art that is in the machine-made article appeals only to the eye; the art in Khadi appeals first to the heart and then to the eye.” It is the lover’s logic. Do not we all know that beauty is projected on the object by the beholder? The main purpose that khadi served in the freedom movement was to set the nationalist apart from the loyalist, the active from the passive; it proclaimed that within the nationalist phalanx all were equal as all wore the same rough cloth. But as happens in human affairs, what was a mater of faith soon degenerated into a matter of habit and routine. Beneath the grab, the wearers were seen to practice the art of the grab. No wonder khadi now rarely commands the respect it once did. Still the leaders as well as the rank-and-file of many parties don khadi. From Jawaharlal Nehru to Devo Gowda, all our prime ministers have worn khadi. (I am not sure about Mr. Vajpayee, though). While traveling abroad, Nehru, Morarji and V.P. Singh wore elegant achkan-churidar. Rajiv Gandhi and P.V. Narasimha Rao preferred trousers and band-gala coasts. Lal Bahadur wore a dhoti in Tashkent, just as Deve Gowda stuck to his panche in Davos and Moscow.

What we need today is a revival of Gandhism through men of the idealism like Chandrashekhar Dharmadhikari. One Chandrashekhar Dharmadhikari will not do. Every State should have Chandrashekhar Dharmadhikari, so that there can be peace, unity and national integration. In the opinion of Chandrashekhar Dharmadhikari: “What is needed is for us to carry his ideas to the people. The present generation has no direct knowledge of Gandhiji. Those who knew Gandhiji and worked with him are alive in a very small number. How shall we make Gandhi known to this younger generation? Only through his ideas and ideals. We shall have to make them applicable to the new conditions.” Speaking about the vision of Bapu, Justice Dharmadhikari says: “Bapu was a seer. He could look far ahead. He, therefore, had thought of a mission appropriate to the new times. He knew that once political independence was attained the idea of ‘Swaraj would no longer be a source of inspiration to the people; it would not spur them any more. People gained the strength of resolve, because they had the goal of political independence before their eyes. They girded up their loins for the great effort to reach that goal. Similarly, after that was gained, people could gain the strength of resolve only if they had something big which they had to attain. Otherwise, inertia would grip them and their strength would wane. Therefore, thought Gandhiji, it was necessary that people had a new idea, a new mantra, a new goal. And he placed that goal before the people even before the first goal had been reached. That goal was “Sarvodaya”. “Sarvodaya”. He said after independence had been realized our resolve should be the bringing about Sarvodaya. Gandhiji wanted freedom from all types of slavery that is political, religious, economic and social; therefore, he always used the word Swaraj. He described India of his dream in these words: Swaraj. “I shall strive for a constitution, which will release India from all thralldom and patronage, and give her, if need be, the right to sin. I shall work for an India in which the poorest shall feel that it is their country in whose making they have an effective voice; an India in which there shall be no high class and low class of people; an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of the intoxicating drinks and drugs. Women will enjoy the same right as men. Since we shall be at peace with all the rest of the world, neither exploiting, nor being exploited, we should have the smallest army imaginable. All interests not in conflict with the interest of the dumb millions will be scrupulously respected,

whether foreign or indigenous. I hate distinction between foreign and indigenous. This is the India of my dreams. I shall be satisfied with nothing else.” Sarvodaya: the advancement of all. So long as sarvodaya has not been realized in practice, exploitation of man by man will continue, the control of the State will continue. So for the full working out of Swaraj Sarvodaya was needed. Sarvodaya is thus the goal Gandhiji has set before us for the present age. Only when this great mission has been accomplished shall we be able to bring Gandhiji to the new generation and fulfill his dream. The great resolve of Sarvodaya is slowly strengthening itself in the country. Such resolves do not gain strength all at once. Especially when they call for self-sacrifice it takes time. Ideas which have any permanence find acceptance only gradually. Those which are of passing validity spring up like grass and wither away quickly. The seed of the idea sown by Gandhi is now sprouting. The need now is to nourish it by unceasing effort. When this resolve of Sarvodaya finds countrywide acceptance people will see the miracle of it; only then shall we be able to say that we have raised a true memorial to Gandhiji. His writ ran all over India, but this writ was of a moral character. Every country has some peculiarities of its own. The peculiarity of our country is that we have always accepted the moral authority of great men. It is natural to obey kings, commanders and monied men. But our country never moulded itself according to their will. People do not even remember the names of kings and commanders. They do not rule over the hearts of the people. If the hearts of the people bear any impact it is the impact of its great men. People here remember Shankara, Gautama Buddha, Mahavir, Nanak and Kabir. They forget Akbar and Asoka. Gandhiji came and the people followed him, for they knew that he conformed to their idea of a great man, his work was founded in spirituality. He was the most normal Man, a normal human-being; not a God, but a Godly person an extended hand of God. He asked people not to make him God and build his temples. He was a man, pure and simple and that was his greatest virtue and contribution to humanity. It is important to remember this if we want to understand Gandhi. Other wise we shall get caught in the meshes o the outward activity and miss the essential Gandhi. It is important to remember this if we want to understand Gandhiji. Otherwise, we shall get caught in the meshes of the outward activity and miss the essential Gandhi. Gandhiji insisted that whatever work we may be doing, purification of the heart was essential. If the heart has not been purified how can

the cow be saved, how can we touch the heart of the peasant, how can people be made to wear Khadi? Therefore, purification of the heart should go on with everything we do. This is what Gandhiji emphasized. It was the Ramakrishna Mission that, moved by the spirit of advaita started in our country the mission of service with love. Gandhiji, similarly, undertook the work of service moved by the spirit of devotion. While the disciples of Ramakrishna manifested the love of the advaita school through their work, Gandhiji manifested bhakti through the service of mankind. Thus, to Gandhiji, work was worship. Outward activity was not of much importance to him. The important thing was the spirit behind that activity. Outwardly he always appeared immersed in work. Inwardly he was as untouched as the lotus leaf in water. He once made with his hand a large zero in the air and said, “Nothing exists but God. We work for our own satisfaction. If we think of the results all our work ends up in zero.” Gandhi had his spiritual seat in this zero. It was his inner voice which was his guiding principle. Gandhi placed before us many things that had been considered to belong only to the spiritual sphere. To the five vows of truth, non-violence, non-stealing, etc., he added a few more and placed before us the eleven vows. The idea of these vows is not new. Truth and non-violence are not mere words. They are the essence of all religions as well as life. Our ancestors have summed up for us in the five vows all the spiritual deliberations of all ages. Patanjali identified them as the yama-niyamas and they were accepted by Buddha, Mahavira and others. It is an agony of Chandrashekhar Dharmadhikari that Public leaders ignored these vows and those who swore by them would not mention them as necessary for public service. They never advocated them for any revolution or social change. Thus, a sort of ‘split personality’ came into being. There was one set of ideas for individual reform and another set of ideas for social reform. Gandhiji achieved a synthesis of the two. He linked truth and non-violence with social work, politics; constructive programme, public organizations and education and declared that truth and non-violence were fundamental for social uplift and also for individual and public work as they were the test of social service. Thus, the uniqueness of Gandhiji lies in his making use of spiritual means for the solutions of social and political problems. Everyone knew that spiritual strength worked in the individual sphere. Gandhiji proved that it could also have profound and wide consequences in the social sphere. In “Young India” dated 20-10-1925 Gandhi made a reference to Seven Social Sins as follows:

Wealth without work Pleasure without conscience Knowledge without character Commerce (ethics) Science without humanity Religion without sacrifice Politics without principle These were the guiding principles which Chandrashekhar Dharmadhikari always kept in mind in all the spheres of his life. The dominant idea of an age is the Brahma of that age. Brahma thus changes from age to age. Some time ago the Brahma for us was Independence. Today it is Sarvodaya. Thus with each passing age we have seen a new Brahma. The Vedas say: “Youth delights in seeing the unseen, in fathoming the unfathomed.” The young people today want a Brahma that has never been conceived before. They want a new Brahma. The old is not good to them. When a new Brahma appears people undergo fresh penance for it. For the present age appears Gandhiji has given us the Brahma the creative idea of Sarvodaya. Now youth Sarvodaya. have realized that search for means of livelihood has no meaning, unless there is purpose for living. (business) without morality

I Do Not Desire A Kingdom
The success Gandhiji achieved in politics was due wholly to the fact that his politics was based on truth and non-violence while that of his adversaries was based on untruth and violence. Untruth cannot prevail over truth. Gandhiji believed in truth and non-violence which was his greatest skill. People think themselves very skilful when they indulge in falsehood but in the end they are proved wrong. True skill consist in adhering to truth. By adhering to truth and non-violence, we guard ourselves on all sides and save ourselves from every danger. The word of a truthful man is implicitly trusted by the whole world, and also by his adversary. It was a great thing that even those who could not accept Gandhiji’s views were convinced that what he said came straight from the heart,

that his words were not ambiguous. It was this faith in Gandhiji that carried India forward. Fredrick John Fiser said: “I have known men to say, I hate him, I despise everything for which he stands. And then I have greeted them as they came away from Gandhi, murmuring, I was mistaken. Love him, or hate him, if you can- you cannot ignore him. He remains unique.” Nehru once said in Parliament: “Wherever Gandhiji sat was a temple and wherever he trod that place became sacred. Also prayer meeting.” Even before Gandhiji’s advent, India had very able political leaders who stirred in people the desire for independence. But people did not have the faith that these leaders meant what they said. It was accepted as natural that political leaders should speak ambiguous language. But as soon as Gandhiji appeared on the scene all this changed. He began to speak out exactly what he felt and thought. Gradually the belief became gamed strength among people that Gandhiji would say only what he thought. Gandhiji’s word, therefore, acquired a new potency and provided the energy for his achievement. Because he said: “His life is his Message.” The significance of Gandhiji’s life can best be summed up by quoting a paragraph from the book, “The Tragedy of Europe” written by Dr. Francis Europe” Neilson. “Gandhi,” Neilson says, “is unique. There is no record of a man of his position challenging a great Empire. A Diogenes in action, a St. Francis in humility, a Socrates in wisdom, he reveals to the world utter paltriness of the methods of the statesman, who relies upon force to gain his end. In this context spiritually, integrity triumphs over the physical opposition of the forces of the State.” What do the Gandhian’s do today? They say that State power in some form or other will continue to be necessary. It will be less regimented, it will be elective, it will be for the welfare of the people, nevertheless it will be there. This is what they feel; this is what many feel. They have got a fixed idea that if we keep away from politics we shall, in the given and present conditions, be depriving ourselves of a very effective instrument of service. So for a transitional period we must continue to participate in politics. Because they believe that sanction behind this and Law is punishment and not respect for Law or for Government. There is a great misconception prevalent among people these days, that Gandhiji pursued politics. Nothing of course can be gained by a discussion of

what Gandhiji pursued or did not pursue. People enter into this discussion because they are faced with the question of what they should not do and since they have the example of Gandhiji before them they fall under his spell. This spell is strengthened by a false understanding of Gandhiji’s life and activities. What Gandhiji pursued from first to last was niti and nothing else, that is Lokniti, not power politics but true Nationalism. If you think that Gandhiji was a practitioner of politics, consider his last years. After the attainment of independence, if he had so desired who was to prevent him from becoming, like Mr. Jinnah, the Governor-General or Prime Minister of India. Instead he took the road to Noakhali. When festivities were going on in Delhi for celebration of independence, he was trekking in that region. This was known as ‘One

Man Army.
Everybody agreed-Hindus and Muslims alike, men great and men humble that it was Gandhi, who by his presence in Calcutta saved Bengal from civic strife and it was again he who finally extinguished communal flames in Delhi. As Jesus calmed the storm on the sea of Galiles, Gandhi calmed and ended the storm of hate and madness. Jawaharlal Nehru said: “How many realize what it meant to India to have the presence of Gandhi during these months…No service could have been greater than what he has performed during the last four months.”

Lok Sevak Sangh
Just think, had Gandhiji wanted the pursuit of politics would he have advised the Congress, as he did, to transform itself into a Sangh’? Just before his death, Gandhiji had issued the directive that the Congress having achieved its aim of securing independence for the country should convert itself into a Lok Sevak Sangh and take up to the service of the masses for achieving true Swaraj. It was his last will and testament for the Congress and was written just a day before his death. In it he had said: “The Congress has achieved political freedom, but it has yet to achieve social, economic and moral freedom in terms of the millions.” It was Gandhi’s wish that for furtherance of the work, a Lok Sevak Sangh should be formed; that the Congress should merge ‘Lok Sevak

itself in it completely, and that in addition all the workers engaged in constructive and social work; such as khadi and village industries, basic education, women’s welfare, Harijan uplift, Hindu-Muslim unity, Shanti Sena and economic well-being should bring themselves under it. He felt that such an organization should cut across all parties and sects and pledge itself to the task of making every village in India self-sufficient. To politicians, this advice of Gandhi sounded absurd. They felt that if the Congress were to turn itself into a Lok Sevak Sangh, who knew what fate might Sangh, befall the country and what might come to rule, the country would break up, party strife would become worse and subversive forces might grow strong. They, therefore, felt that the best thing for the country would be to keep itself in power through elections. This was the argument advanced by everyone, big and small. This was how the Congress leaders of the time felt when considering Gandhi’s advice. They felt there was risk in forming a Lok Sevak Sangh. If the Congress Sangh. was disbanded, who could tell when the Lok Sevak Sangh might finally take shape and when it might be able to make an impact on the people. And if, God forbid, reactionary forces should in the mean-while occupy Delhi all the work so far done would end in nothing and the country would revert to slavery even before it had become free. So they decided to keep the Congress going. People like Chandrashekhar Dharmadhikari felt that if Gandhiji’s advice had been heeded it would have made a profound impact on the country. A moral force would have been generated which could be depended on for providing right guidance to the country, for dedicated and detached service of the people, for giving moral direction and in case the people or the Government made mistakes for objectively bringing them to the notice of the people- watching the watchman. The most important result would have been that the service organizations would have acquired the first place with the Government set up being subservient to it. Instead of that what happened? The Government set up lords and Subhedars over everything. Social service organizations depend on their charity for carrying on their work. What Gandhiji had wanted was to make Government power subordinate to people’s power. The import of his advice to convert the Congress into a Lok Sevak Sangh was that authority should yield the first place to the Lok Sevak Sangh. Service should be the queen, power its handmaiden. The initiative should be of people which is the essence of true democracy i.e. Lokniti. It has the grandeur of Upanishadic thought. Without real genius such a conception is not possible.

The consequences are there for everyone to see. Today the situation is such that there is no individual or organization in the country with enough moral authority whose voice would be listened to by the entire country. Leaders of parties go before the people merely to attack each other. They are acting as bidders. This does nothing to prod the apathetic masses into activity. Our political leaders may be classified as Heroes, Neros and Zeros. In the first decade after independence, our politicians were heroes; in the second decade, they became neros; and now they are zeros nay dealers. Added to these, the country’s elite has only self-interest and lacks social concern and hence is ineffectual to assert itself. A sense of fatalism has gripped the intelligentia, who throw up their hands in despair and leave the field to the professional politicians. These politicians entrenched themselves well in positions of power keeping the spineless intellectuals around them to blow their trumpet. C. Rajagopalachari, the first Governor-General of independent India had said: “A democracy in which the majority of voters is swayed by bribery and is deceived by deceivers and the good people remain at home doing nothing to overcome the evil, is not democracy to which advocates of representatives of government enthusiastically write eloquent tributes. It is government by bribe givers for bribe takers.” Moral leadership is entirely lacking and a kind of inertia, emptiness and bewilderment has seized the people. They do not know what to do, where they are to go. We would not have come to this sorry state of affairs, if Gandhiji’s advice had been heeded. Chandrashekhar Dharmadhikari believed in Gandhi’s advice and did not contest any election nor held any political post even though offered. He believed in social service. After Gandhiji’s passing away, we have been unable to impress politics with our idealism. Instead we have come under its sway, become dazzled by it. The swift current of politics has carried us down with it. Politics today bears no imprint of our idealism while the influence of politics on our lives is clear. Those who call themselves ‘Gandhians’ have strayed from Gandhiji’s path. They are going the way Nana Phadnawis went. Thus, far from reforming others, we are ourselves becoming corrupted. The English attack was impending. They had reached Borghat. In Poona the Peshwa was ready with his men. It was clear that the bloodiest sacrifice was going to be demanded of him. Nana Phadnawis had decided to turn Poona into a city of raging flames. How many troops would Shinde Bring? And Bhonsle? And Holkar? That was all the talk.

“We shall bring so many troops. What shall we get for it?” “Such and such part of Khandesh will be yours”. “We shall supply so many armed men. What shall we get for it?” “You will get such and such part of the land.” Right up to the present this sort of thing is going on. The talk today reveals the same kind of bargaining. “How many seats shall I get?” “What portfolio will I be given?” Gandhiji came and has gone away. The conditions remain what they were. Is politics today any different from what it was in Nana Phadnawis’s days? What is the power of politics? It is the power to destroy. The merit that had been earned is diminishing. How many of those who placed themselves in the seat of authority after independence have added to their merit? There will be very few indeed who can digest power in the manner of king Janaka. The rest suffer a diminution of merit. We must shed all labels. This is an important Gandhian teaching. This implies a fundamental restructuring of politics and development of lokniti. It is important to understand that so long as the word ‘politics’ retains currency and the notions concerning it hold, it is impossible to bring about its spiritualization. By contact with politics, spirituality might suffer. The only way we can yoke politics to truth is to transform politics; not truth. “I am a Brahmin” or “I belong to such and such religion”, or “I am a follower of such and such religion”, or “I support such and such political party” are labels which have to be destroyed, if we wish to use our faculties for developing the power of non-violence. Dharmadhikari says: “For this we must strive for establishing a place of prestige for un labeled common men who are the foundation of Lokniti.” So long as we are not clear in our mind on this matter, so long as we have not grasped this or, having grasped, nevertheless think that for the time being things must continue as they are, the world will not be freed from the claws of violence. We will have to adopt a technique of work which will ensure a total uprooting of violence from the world, however long it may take for us to do so. We must believe in culture of peace.

Gandhiji was ever possessed of the question how affairs should be rendered after independence was gained. He had called a conference to meet at Sevagram. He had intended to explain to his co-workers how his mind was working. The conference did meet, but only after he was no more, when he was not there to guide. Everyone knows the story of Jesus. He was nailed to the cross and then taken down and buried. But he rose from the grave and appearing to some of his disciples told them, “I now go to Galilee. I will see you there.” Gandhiji too left Delhi and has gone to the villages. “In Delhi they have buried me,” he says, “I have no business to be there any more.” Back to the villages was always Gandhiji’s slogan. According to Chandrashekhar Dharmadhikari, this is necessary because India’s culture is Agriculture. Those who have faith in Gandhiji’s teaching should set themselves to awaken the masses to cut the root of state power. Without this we cannot bring about people’s power, the Swaraj of Gandhiji’s conception. That Chandrashekhar Dharmadhikari is doing his best in this direction is clear from his activities.

A Non-Violent Social Order
Gandhi had desired a mode of worship for the country which even a child should be able to practice. There are religious and sectarian rituals in vogue but they create disunity. The country needs a form of worship that promotes unity, that makes each one feel that he is doing something for the country and creates a sense of mutual friendship and fellowship. This is the idea behind the spinning wheel. (Charkha) Spinning is the lightest and simplest of labor. With the charkha even a man like Kishorlalbhai, who wondered each morning whether he would survive the day, could do some productive work for the country. And he carried on for twenty or twenty-five years, thus precariously perched between life and death. He managed to spin enough yarn for his own clothes. The charkha can turn even the weakest man into a producer. Therein lies its uniqueness. Bapu gave us this unique instrument in a new form and with a new idea. Gandhi was very fond of a bhajan of Mira Bai: “Hari has me with a slender thread and as He pulls I move.” With the slender thread of love we can pull the whole world and be pulled in turn. That is the idea behind the charkha.

Gandhi plied the charkha all his life. He had spun his day’s quota the day he died. A court once asked him his profession. He answered: “Farmer and weaver.” That is how he identified himself with the masses of India. Thus what stands behind the charkha is the feeling of worship and of identification with the common man. But at the same time it also represents a new economic theory. Gandhiji’s preoccupation was how to reach help first where help was needed most. He found a way in the charkha. He saw very early that India needed village industries. There was a complete philosophy behind the charkha of Gandhi. It was not merely a means of temporary relief. It was an essay in restructuring the economics of the country on the basis of non-violence under the conditions that then existed. Gandhiji’s ideas were lofty and at the same time down to earth. He had a keen understanding of the problems of the villagers and the temper of the masses. That is why he advocated production by the masses rather than mass production. He visualized hundreds of millions of hands working and producing, with the tools available in a decentralized economic order. Not Horse power but Man power, production should be for men and not at the cost of men; then alone, Gandhiji said, could the villages of India survive. Such was Gandhiji’s view concerning the charkha. Attention must be paid first to the needs of the lowest strata of society. That is the Sarvodaya view. There can be no other tool as effective for the amelioration of the lot of the poor. Therefore khadi must remain the basis of all our programmes. Afterwards, maybe, something else will take its place, but for the present it is indispensable. This is the reason why Chandrashekhar Dharmadhikari is habitual Khadi wearer. Khadi is not only a cloth for him but it represents a philosophy. It is a symbol of revolution. He says: “If each and every citizen of India uses one Khadi dress in a year, about one crore people would get employment. No industry can provide employment on such a large scale. Gandhiji also spoke of other village industries besides khadi. He was khadi. convinced that agriculture alone by itself could not enable the villages to survive. The villages should be able to meet their primary needs through their own manufacture. All raw material should, as far as possible, be processed and turned into finished goods locally. We should not sell oilseeds and buy oil, or sell cotton and buy cloth, or sell sugarcane and buy jaggcry. All the necessaries of life should be produced in the villages. Every village should have the right to decide which goods to send out from the village and which goods to import. Only

then can swaraj reach the villages. Unfortunately, in British Raj cotton was sent 5000 miles away, and today when it is sent 500 miles away what difference it will make to a villager. Therefore, cottage industry and village industry is the only solution, if the village has to become self-reliant. As well said by Bertrand Russel in his book, “Authority and Individual: “In Individual: process of so called modern industrialization, First, there is the Loss of Local and Traditional Skill, which has brought to those who exercise, joy of craftsmanship and the way of life which, though hard, gives pride and self-respect and joy of achievement, through ingenuity and effort, in circumstances of difficulty and risk. Secondly, there is diminution in the intrinsic excellence of the product, both aesthetic and utilitarian. Thirdly, the murder of local industry aggravates the tendency to uncontrollable growth of cities.” With reference to India, he said: “India is traditionally a land of village communities. It would be a tragedy if this traditional way of life were to be suddenly and violently exchanged for greater evils of urban industrialization.” We should not think of khadi and village industries as an isolated question. It should be considered as part of a conception of village economics. As many industries as may be necessary to aid agriculture should be provided. Khadi will be one of such industries. We want villages to stand on their own legs. This is possible only through khadi, khadi, village and cottage industries. Justice Dharmadhikari feels that if this policy would have been followed Farmers’ suicides could have been avoided. Gandhi wanted people to be freed of economic exploitation through khadi and village industries. But towards his last days his heart was full of sorrow that khadi activity had become muffed. When he came out of jail after his last prison term this was one of the problems that occupied his mind. He spoke of revitalizing khadi. In the manner of the Upanishads he said: “The Spinners should khadi. wear Khadi, the Khadi-wearers should spin.” As every village grows grain, every Khadi-wearers village must make cloth. If this happens it will be an effective guarantee of India’s security. Whatever has so far been done in this sphere has not been very significant. The work has been regularly pursued for the last 60 years. And yet how much khadi is there today? One is told that a mere one per cent of the cloth requirement of the country is met by khadi. What is therefore needed is a radical reshaping of our technique of work. For if something drastic is not done khadi will very soon lose its revolutionary

character and become a mere rag just a means of providing small-time employment to people who are unfit to do anything else and who will then be given a wage rather than a dole. Khadi in this role can hold no revolutionary promise. “Today, we have Khadi Commission and not Khadi Mission. Now Mission has become Commission is the agony of Chandrashekhar Dharmadhikari. He says: “If this goes on then the economic slavery will return, and India will become economic slave of strong countries in this wave of Globalization.” He further says: “Khadi cannot go on depending on Government patronage “Khadi for a very long time. After all, for how long can the Government go on subsidizing khadi? It may help to some extent in order to provide work to the unemployed. But help is one thing, protection and economic security is quite another. Government can provide help, not protection to khadi. Only a solemn vow by the village masses can ensure protection to khadi. Only then will khadi survive and spread all over the country. Every gram sabha will have to take up khadi work. Every village will have to produce khadi for itself and economic organization of for village will have to be made khadi oriented.” Therefore Justice Dharmadhikari is against subsidies and that too by Government. He pleads that Khadi should stand on its own legs, if it has to survive. All this will have to be carefully and comprehensively considered. Khadi is a mahamantra. We will have to ponder over its underlying meaning. Gandhiji was never tired of saying that non-violence meant the charkha and the charkha meant non-violence. The world needs peace potential far more than it does war potential. We shall have to undertake enterprises which promote peace, which offer possibilities for peace, which have a potentiality for peace. In today’s world the voice of Sarvodaya is the voice raised in the interest of justice. It has the power to end all injustice and exploitation. Only when these are removed can a durable peace be established. The world is today groaning under injustice, oppression and exploitation. It is being squeezed in the voice of power. It is haunted by the curse of wars and armaments. Science, which should have been a boon turned into a blight for science has sold itself to power, money and narrow self-interest. Sarvodaya points the way to deliverance. Very early Gandhiji had realized that development of science and technology would open the door to centralization of governmental and economic power and this centralized power

would then end up by enslaving mankind. He therefore gave the call for village swaraj. He said that if India was to develop on non-violent lines, that is, if it was to remain free of exploitation and injustice, a good many things would have to be decentralized. But if centralization was to go apace, ever-increasing violence would become inescapable for defending. A non-violent social order could be established only on the foundation of self-sufficient and self-reliant village units. To change the existing situation, it endeavours to generate a revolutionary awakening among people, to make the masses rise up, unite and act and to foster fellow-feeling and brotherhood among men so that need for centralization is done away with and the villages can shake off the yoke of power and property. Today’s economy is Anartha shastra, Swartha shastra, and Wippatti shastra as described by Chandrashekhar Dharmadhikari. The idea of decentralization of power and wealth and village swaraj is a unique gift of Gandhi to the world. Regimentation and centralization of all human activity is a curse of science. The way shown by Gandhiji is the only way mankind can fight against this curse. Gandhi was not merely an individual, he was a symbol of non-violence. Mankind has acquired through him a wonderful framework for a non-violent polity.

Relevance of Gandhi in 21st Century
The period following Gandhiji’s death has been one of disorder. But one need not despair. Concerning a man like Gandhi, one must take a long-range view. The impact of the work of a man like Gandhiji is not to be expected to show itself in a narrow sphere or immediately but over a wider sphere and longer period. There is therefore no need to be disheartened. In the opinion of Chandrashekhar Dharmadhikari, Men like Gandhi transcend time. They do not have a short-term perspective, they take a longrange view. Sixty years is not a long time, it is but a moment. Gandhiji can afford to wait. He is known as the Father of the Nation and so we all are his children. For all these years, we have been behaving like children; just as people indulge in frolic at Christmas. Thucydides says in his magnum opus, “The Peloponnessian War,” that events should not be judged earlier than 100 years after their occurrence. This time gap is necessary, says that Athenian historian, to give a perspective to be

able to judge events and men objectively. Gandhiji is only 60 years dead. For this reason, historians have been silent, waiting for Thucydidian period of 100 years to be over before judging Gandhiji and his philosophy. Chandrashekhar Dharmadhikari asserts that the ideas Gandhiji has given are imperishable. They will survive all the assaults against them. If they cannot survive in India, they will survive in Palestine, in England or in America. They have such vitality. In China, people have one kind of school, which they call half and half school and in which three hours are given to work and three hours to study. Their Communist Government sees to it that when a thing is accepted, it is at once put into practice. We people in India, on the other hand, are always hesitating, thinking, considering, making rules. In China every one without exception attends the same school and works shoulder-to-shoulder with the rest on equal terms, without any distinction of high or low. Knowledge and action go together, and for all alike. The Chinese have succeeded in educating every one in knowledge and work together, half and half. China has been doing what Gandhiji wanted us to do even in the field of education. His Nai Talim or Basic Education idea was based on this principle. In Japan, they have been implementing Gandhiji’s idea of growing food in every home. Not a single square foot of land is left unused in Japan. Kagawa, a great Japanese thinker and social worker has written a book called, “On the Steps,” about methods of Farming on hill slopes. He described how Japanese youth cultivated the hill-sides, planting trees to prevent soil erosion; how they left not an inch of land unused; how in this way they served country. But here what a lot of land lies waste! What a painful sight. We in India shall have to pay heed to Gandhiji’s idea now or later-Sooner the better. Gandhiji’s thoughts an ever-living. Its consequences are wide and far reaching. At time it may seem that it has become feeble, but soon it will appear again with its innate vitality. Gandhi’s thought is immortal and it is valid not only for India but for the entire world. It will change in form to suit the necessities of time and place, but its essence is undying. Therefore, there is no cause for worry about the fate of Gandhi’s teaching. What one may regret is that people who had been associated with Gandhi forgot his preaching. We must go deeply in the cause of this. One reason is the lack of study. Gandhians have not as deeply engaged themselves

in

study

as

in

action.

Another

reason

according

to

Chandrashekhar

Dharmadhikari, which is a corollary of the first, is that Gandhi’s thought remained Gandhi’s thought, it did not become our thought. As a consequence we see that there is no zest in Gandhians, no faith, no self-confidence. We are not inspired by the feeling that the idea that we have taken up is an immortal idea. Gandhi’s going had plunged the whole country into despair. Constructive workers had become prey to dejection. They had lost all hope of being able to do anything. They were all but convinced that Gandhian thought had come to its end, that no one would listen to them any more, that it was a beginning of a new epoch in which non-violence would not prosper. Sardar Patel said: “People did not listen to even Gandhiji, who will listen to us? The country is now free and we must develop industries that has a war potential.” While Sardar was insisting on developing such industries which may have war potential, Vinoba Bhave began to search such works which may develop peace potential. Vinoba’s search began from Bhoodan, Gramdan and ended in Prantdan. Vinoba called it not just a movement but a progression. Justice Dharmadhikari says: “There are some processes of revolution which are known to the world. First is expropriation which means taking away wealth by force. Second is confiscation by legislation. In process of taxation, every tax payer wants to avoid payment of tax. Only third way left is voluntary surrender; which is known as Dan, a gift or grant that is Bhoodan, Gramdan, Sampattidan, which is the contribution of Acharya Vinoba Bhave, a successor to Gandhi. In this movement, Vinobaji got more than 40 lac acres of land which came to be distributed to landless persons. It was a non-violent revolution to solve the problem of poverty and economic slavery.” Chandrashekhar Dharmadhikari became an ardent follower of Vinoba and actively lent his support, wherever he was. He said: “The idea of Sarvodaya arrived at an important mile stone. It provided the ground work, the foundation, for the realization of Gandhi’s dream of village Swaraj. In village after village, people came and signed the gramdan documents in hundreds of thousands. But again with Vinoba’s passing away the movement slowly came to halt. Those who believe in the idea of Sarvodaya will have to mobilize themselves to achieve the object. The Swaraj, which was the second dream of Gandhi can be brought only through Sarvodaya and Antodaya.”

The Gram Swarajya movement started by Vinoba Bhave had great impact on Chandrashekhar Dharmadhikari. He too believed that the movement will create village republic, which would be self sufficient in essentials of life and community living. Then alone peace can reign among people, and Rajniti, politics and political power concentrated in a few hands, distant, unseen, yet fatal in its hold and dehumanizing in effect, would weaken and disappear, giving place to Lokniti, the power of the people in which participation of the people which would be near, direct, humanizing and benevolent. Today, people are on lookers and not participants. Chandrashekhar Dharmadhikari as a Chairman of Maharashtra Gram Dan Board, is trying to revive the movement. It may be mentioned that when Vinoba Bhave on his return journey came to Nagpur on 29 March 1964 a committee was appointed to organize his programmes in Nagpur; Chandrashekhar Dharmadhikari was its Convener. Gandhi in his last days talked of the ‘whole, of integration.’ He was convinced that nothing would be achieved without co-ordination. He had suggested that all the organizations doing constructive work should be formed into one large organization. Stray efforts were made but they did not last long. Today, the situation has reached a stage where the advice of Gandhi and Vinoba will alone bring out the country from the grip in which it is caught, believes Chandrashekhar Dharmadhikari. Gandhi wrote ‘Hind Swaraj’ in 1908. He said that it was his dream and he pledged his life for its realization. He steadfastly carried on the work for four decades. It is in this manner that we must pursue the Sarvodaya with perseverance, awareness and organization. Reiterating the views of Vinoba, Chandrashekhar Dharmadhikari says: “So long as Sarvodaya is not accomplished, we cannot have every village living like a family. The new age is the age of World State. In this State, India will be only a Province. State will be no more than a District, and the Village will be like Family. At present the family unit is too small. We have got to enlarge it to the size of the village. We cannot proceed one step except on the basis of a village society. We must make each village a Sarvodaya Republic, a Global village. And only after we bring into existence a Union of Sarvodaya Republics our peace potential will become a reality. “Gandhi’s soul is watching us intently. I do not know in which corner of the unknown it is. The souls of liberated men become united with God. If Gandhi’s

soul has become united with God then it is God who is watching us intently, which is to say Gandhi’s soul is watching us from our internal God. But if his soul is not united with God, and dwells elsewhere then it is certainly watching us. I always feel that this man of God is with us. It is His will that India should show the world the way of peace. “For this we have to awaken the power of the people. Our destiny is not in our hands-this is a notion at which we have to strike. Today, the task is to transfer power of the people into rule by people. We have to explain to people that their destiny is in their own hands. We want to abolish State Power and replace it by people’s power. It is known as Lokniti. If we keep the goal before us and steadfastly work to reach it, we shall certainly succeed. “Gandhi was like the fabled philosopher’s stone. His touch transmuted base metal into gold. His alchemy made heroes out of clay, turned savages into civilized men and transformed small men into great men. When I heard the news of Gandhi’s assassination, I told myself that Gandhi had become immortal, and this feeling remains with me to this day. When Gandhi was in the body, I always took some time and efforts to go to see him. Now it takes only a fraction of second. You shut your eyes and you have Gandhi before you. Now I converse with him frequently and I also feel surrounded by him. After all he had kept his hands on my shoulders, may be three or four times during his evening walk. That is my inspiration. “I do not feel that the inspiration that urged me on during Gandhi’s life time has in any way diminished. I do not feel that the zest has flagged. I do not feel despondent or dispirited. Today, my sphere of work has widened but I do not feel that the intensity has in any way lessened.” “We have tradition of Shraddha and Tarpan of making offerings to the dead. There is Tarpan for the ancestors and another for Rishis. We perform Shraddha for those who gave us body as also for those who gave us thought, knowledge and devotion. Gandhi was for us both an ancestor and Rishi. We call him the Father of the Nation and he taught us the philosophy of Satyagraha and Sarvodaya Dharma, so he was also a preceptor and Rishi. The preceptor also Dharma, through his instructions performs a similar function. Consolidating and enriching the important work that Gandhi did would be our Tarpan to him as an ancestor; while constantly studying and pondering his thought would be Rishi Tarpan.

“My heart is witness that I have endeavoured to the best of my ability to follow the path shown by Gandhi. I have been going to the very extreme limit in my striving. There has not been a moment when I have been careless. I have no doubt in my mind that it is Gandhi’s work that I am doing. This is a great source of happiness to me today. I experience Gandhi always with me. Gandhi is present in essence in my thinking. In studying and pondering what he has said, I get most help from Gandhi himself. “Gandhi is present in the hearts of all of us. He has taken the place of God in our hearts. Deity and devotee have become one Living. He had separated himself from God to do the work of service. Now he has become one with God’s man and blesses our work. Let us do our utmost to follow in the foot steps of Gandhi and engage constantly in self-scrutiny and experiments, purify our hearts and surrender ourselves to God,” says Justice Dharmadhikari. In the words of Martin Luther King, he believes that “Master’s burden is light, precisely when we take his Yoke upon our shoulders, and all wood can be used for the Cross.”

Hey Ram
Somebody asked Vinoba, “How could the assassin raise his hand against such a man of God? It is incomprehensible”. Vinoba’s reply was: “Gandhi was no longer merely an individual. He carried the burden of all of us. Our lives were soiled. So he had to die. Had he been only an individual, had he not been responsible for us all, it would have been different. But he carried our responsibility to the very end. Therefore we are answerable to his death.” Vinoba further said: “It is a point to be pondered that when great men are in the body their power is limited. But when they are freed from the body their power becomes unlimited. Gandhi having been freed from the body is communicating with us. The thoughts that dwelt in Gandhi’s mind can now enter our hearts directly as there is no body to hamper their communication.” Chandrashekhar Dharmadhikari says: “Nathuram Godse was not an individual, but a philosophy personified; which believes that by killing a man you can kill his philosophy, his thought. Murder or assassination is the best method of censorship. This started with Jesus, Aristotle, Abraham Lincoln, Mahatma Gandhi, John F.Kennedy, Martin Luther King and still is being perpetuated. So far as Gandhi is concerned, he wanted to magnify his cross, and believed that all wood can be used for the Cross.”

Justice Dharmadhikari believes in Gandhi’s Talisman. He weighs and measures the fruits of his doings in every sphere including judicial, on the touch stone of this Talisman Gandhi’s Talisman reads as under: “I will give you talisman. Whenever you are in doubt or when the self becomes too much with you, apply the following test: Recall the face of the poorest and the weakest man whom you may have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain any thing by it? Will it restore him to a control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions? Then you will find your doubts and yourself melting away.” This Talisman is the best measure to weigh our deeds and development. Justice Chandrashekhar Dharmadhikari’s views on the various aspects of Gandhian thoughts are included in this book. But one thing should be mentioned here: according to Chandrashekhar Dharmadhikari, Gandhi was not against science and machine. He was using telephone, typewriter etc. In a sense Charkha is also a machine. Gandhi wanted that science and machine should strengthen the strength of man and should not be to replace him. Science should be complementary. Horse power should be supplementary and help Man Power, and should not destroy it. Therefore Chandrashekhar Dharmadhikari believes in new formula: S + G meaning Science plus Gandhi. Justice Chandrashekhar Dharmadhikari wants people to study his ideas thoroughly, discuss them fully, and accept whatever they find to be satisfactory. There is an ancient saying that the seer who proclaims the path of Dharma is like a sign-post at the cross-roads. The signpost stretches out its arms to show you, “that is the way.” The man of scientific turn of mind is a signpost. He is their to advice, to explain, to suggest, but not to force you to act. That is Justice Chandrashekhar Dharmadhikari’s approach.

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Made For Each Other
Chandrashekhar Dharmadhikari was married to Tara Temurnikar on 20h May 1954 under the Special Marriage Act at Nagpur. Its utter simplicity was befitting to the principles observed by Dada in respect of marriages and social customs. It would not be believed today that the total expenditure incurred for the marriage was Rs. 22. Yes! Rs. Twenty Two only, out of which Rs. 20 were towards the marriage registration fee. It took place at Tara’s two-room Government Quarters. What a contrast to the present day extravagant expenditure incurred on marriages! In our so-called religious country, the daughter’s birth is not welcomed because of the dowry system and expenditure on marriage. Even otherwise, Article 51-A of Indian Constitution lays down that it shall be a fundamental duty of every Indian citizen to renounce practices derogatory to the dignity of women, and the rituals in the Hindu marriage are predominantly derogatory to the dignity of women. In Hinduism caste is a reality and religion either is a fiction or total of castes. In 1954, there was no common code or law for all the Hindus. Therefore, Chandrashekhar Dharmadhikari and Tara did not want to enter into wedlock by adhering to the rituals meant for Brahamins only.

The persons who attended the marriage were Dada, Mahatma Gandhi’s daughter-in-law Nirmala Behan Gandhi, Principal Bhayaaji Pandhripande and Retired Income Tax Commissioner Shri B.M. Pandit who was close friend of Tara’s father. That is all. The Registrar of Marriages was Retired District Judge Shri Sahastrabuddhe. Even the family members, such as brothers were not invited to avoid expenditure and misunderstanding, process of elimination must start from the closest relatives. It is pertinent to note that both the brothers and two sons of Chandrashekhar Dharmadhikari were also married in a simple manner under the Special Marriage Act, which is common for all, rather, Secular in nature. The marriage ceremony was performed in the morning and Chandrashekhar and Tara went on cycle ricksaw to Dharmadhikari’s house in Dhantoli. Chandrashekhar says it was the beginning of his, “Tarankeet” phase of life. Tara was one year older than Chandrashekhar. Chandrashekhar says that he has at least imitated Mahatma Gandhi in choosing a wife. Kasturba was also one year older than Gandhi. It is also worthwhile to note that when their marriage was performed, Chandrashekhar Dharmadhikari’s LL. B. result was not even declared. Therefore, the only earning member of the family was Tara, and Tara’s mother Shardabai was also living with them. In the initial years of marriage, Tara’s salary was the only source of their livelihood. Chandrashekhar Dharmadhikari was not ashamed of living on wife’s income. For him Tara was not only a spouse, but was also his beloved friend. King Ajza said about his wife Indumati that She was his GrahiniSachiva, Priya and Sakhi, Sakhi, four in one. Such was the relationship of Chandrashekhar and Tara. Tara was not only mother of their children but she was, in true sense of the term a mother of Chandrashekhar Dharmadhikari also. She was the first reader of his articles-an appreciator as well as critic. Tara’s father Dinkarrao Temurnikar was also a Judge. He was with Chandrashekhar’s grand father at Hinganghat and Achalpur. Dada knew Temurnikar family very well. Chandrashekhar had seen Tara at Jabalpur when he was studying in B.A. It was love at first sight. Later Tara came to Nagpur and sought admission in M.A. in Morris College, where Chandrashekhar was also studying. She did her M.A. one year before Chandrashekhar. She simultaneously obtained Diploma in Journalism and Hindi Visharad Degree. Her education was earning while learning or learning while earning.

Career
Tara began her career as a teacher in Bhide High School at Nagpur. She later joined the Department of Publicity and Information of Government of Maharashtra and was posted at Nagpur. She had the highest degree of honesty and integrity, because of which she could never be hand in glove with her collegues in corrupt practices. Tara did not leave service even after Chandrashekhar Dharmadhikari’s fabulous legal practice, not even when he became High Court Judge. She very well knew that even as High Court Judge, he would not compromise his principles. Therefore, she decided to continue in service, so that if Chandrashekhar ever decided to resign, fighting for his principles, she could support the family financially. Such occasions did come in the life of Chandrashekhar Dharmadhikari; one of such was during the Emergency. She did not want Chandrashekhar Dharmadhikari to compromise his principles for the sake of family. Chandrashekhar Dharmadhikari in his Memoirs, “Kalachi Paule,” writes: “Tara had become inconvenient in the department, because of her stubborn and uncompromising attitude towards corruption. In the month of March every year, she used to proceed on leave to avoid signing the false Bills or becoming party to corruption. Her proceeding on leave in March was welcomed by her juniors and seniors as well. She was superseded by her juniors in promotion.” Chandrashekhar says: “I became High Court Judge. But wife of the High Court Judge never got justice in service.” This is true. I (author) have experienced it myself. Smt. Tara Dharmadhikari and myself were collegues for a short period. I was District Publicity Officer at Aurangabad during Indo-Pak war of 1965. The department of Publicity had launched a massive anti-war propaganda through cultural programmes. The responsibility of organizing these programmes was entrusted to the District Publicity Officers. We had a Regional Publicity Officer, who was known for his notorious behaviour and corruption. He asked me to draw the advance and hand over the amount to him to arrange the cultural programmes and to make the payment to the parties concerned. I was new in the department and so in good faith I obeyed him, drew the advance and handed over the amount to him. He called me after a few days and gave me the vouchers of the payment made by him and asked me to file the vouchers and settle the advance. When I

scrutinized the vouchers, to my surprise, I found a number of bogus vouchers. I went to him and requested him to certify the vouchers to the effect that the payment has been made by him. He told me that there is no need. It is a formality to file the vouchers and settle the advance. Sine I had an experience of Government working, I vehemently told him that I will not settle the advance until he certifies the vouchers. Having seen that I am a hard nut to crack, he angrily certified the vouchers and threw them on my face. But in future, he never asked me to draw an advance and handover the amount to him. The news went to the Director of Publicity. I received a pat and encouragement from him. The programmes were thereafter arranged by me and the payment was made as per the Accounts Code of Maharashtra Government. I can imagine the mental agony Smt. Tara must have had at Nagpur. Smt Tara was transferred to Mumbai as Editor of “Lokrajya” a fortnightly after Chandrashekhar Dharmadhikari took over as High Court Judge at Mumbai. During her tenure as Editor, the Lokrajya received President’s Award. Smt. Tara functioned as Editor of Lokrajya without fear or favor. Every contributor of Lokrajya felt that she will edit his/her article only where it was necessary in the interest of Lokrajya and its readers. Once Shri P.G. Gavai, who was then holding an important position in the Mantralya wrote an article on Dr. Babasaheb Ambedkar. Some of his friends advised him to delete certain portion, but Gavai was adamant. When the article went to Smt. Tara, she requested Gavai to delete that portion as it was not advisable. Gavai who was earlier adamant told Tara that if she feels that it should be deleted, she could have liberty to do so. Such was Tara’s position as Editor of Lokrajya. Smt Tara Dharmadhikari eventually retired as Deputy Director of Publicity.

Literary Figure
Smt Tara had made her own mark as a literary figure. She had command over Marathi, Hindi and English. She contributed articles to several Marathi and Hindi news papers and journals. She wrote editorials for Lokrajya. She wrote books on women in Freedom Struggle, Baba Amte, and Dada Dharmadhikari. She edited the following books of Dada: Jeevan Darshan; Pahat Tare: Manavatecha Map Dand- Gandhi: Priya Muli, Asha Udyachi; Gandhi Ki Drishti: Agla Kadam and Kranti Shodhak Jayaprakash Narayan. She translated the following books of Dada:

Manishichi Sneh Gatha, Nagrik Vishwa Vidyalaya- Ek Pari Kalpana; Lokshahi Vikas Ani Bhavishya, Hindu Dharma Mhanje Kai by Mahatma Gandhi and Jayaprakashancha Varsa: Acharya Rammurty. Her book on Baba Amte and Hindu Dharma Mhanje Kai ran in several editions.

Foreign Visits
Smt Tara Dharmadhikari participated with her husband in Bruhan Maharashtra Mandal Session held on July 5, 1999 at San Jose in Calefornia. She traveled all over America and wrote series of articles on her visit and experiences. She accompanied her husband to Japan on the invitation of IndoJapan Sarvodaya Friendship Sangh. She also visited Singapore on the invitation of Indian International School. She had close associations with Sarvodaya Ashram and many organizations at Wardha, Nagpur and Mumbai. When Punjab was disturbed and hatred prevailed, Tara took part in peace march in Punjab to restore peace. Tara’s first operation for Cancer took place in August 1997 and the second in May 2003. She had an attack of paralysis on May 29, 2005. She was immediately admitted in Lilavati Hospital in Mumbai. She was put in the Intensive Care Unit (ICU). Doctors advised operation with 50 percent hope of success. She had already undergone two operations. A Spine operation compelled her to take the aid of a walker. In this situation it was decided not to go for another operation-come what may. She went in coma on June 5, 2005. Dr. Hastak, under whose treatment she was, said: “She has entered into mortality zone.” However, she miraculously came out of coma. She was still in the ICU. Chandrashekhar told her that she had returned from heaven. She must have met Goddesses and Gods there. Why did she return from there? Smt. Tara, with ease and her usual smile, replied: “There were Gods and Goddesses, but you were not there and so I came back”. This spontaneous reply made Chandrashekahar Dharmadhikari and others feel that she is mentally alert. However, she had to be bed-ridden till the time she breathed her last. This she called Anthrunayan (voyage on bed). Chandrashekhar brought his movements almost to naught to be with her to boost her morale. In this condition also she used to write at least one page daily. Smt. Tara struggled with her cancer and paralysis for almost two years and breathed her last on April 2, 2007 with a smile on her face. Her hands and legs

had become straight and normal at the time of her passing away. Her soulless body was as beautiful and tension free as it was before her illness. Chandrashekhar says: “In moments every thing is over. A person makes plans with imagination. But ultimately every thing remains on earth.” “It seems as though this appalling pang of separation from our dear ones is all in the game. Perhaps it is the part of earnestness of life. But in the midst of death, life is irresistible. Its perennial fountain never dries up, and in the marvelous dispersion of an Almighty providence, no loss is irreparable. Perhaps that is the essence of life with capital “L”, says Justice Dharmadhikari. Thus, Chandrashekhar and Tara were not only husband and wife; it was a rare relationship of mutual friendship. They very well knew that sacred fellowship or compatibility can be groomed only on the foundation of mutual love and trust. This pilgrimage of human spirit will have to be undertaken in a spirit of dedication by wife and husband, who believe in liberation of women in and out, to consummate the liberation of family system and human race. This is called in the real sense, “Made for Each Other.” This does not depend on the measurement of body, but is a union of soul relationship. Tara was a laughing beauty, and surrendered to death also with a smile on lips. What a splendid life and death. Her funeral was also unique. There were no rituals, only Ishavasya Srotra was recited. Her ashes were buried at Paunar Ashram, where Dada’s cremation also took place. The way she embraced death enriched her life.

Tara’s Mother- A Remarkable Woman
Tara lost her father in her childhood. At that time her mother Smt Shardabai was 29 years old. Exactly on the sixteenth day of her father’s death, Tara lost her elder brother and as fate would have it, she lost her younger brother when he was 16 years of age. Thereafter, her mother became a selfmade woman. She refused to stay in the joint family and surrender her share in the joint property of her husband, so that she could educate her children and also make them capable to stand on their own legs to live their life. Shardabai lost her money because the bank in which she had deposited money went into liquidation. When some money was paid to her by the bank, she helped her sister-in-law (brother’s wife) to go to London for FRCS She also helped her brother, who was in the labor movement and was not an earning member. In those days Shardabai could be described as one of the most progressive women. She lived with Justice Dharmadhikari after Tara’s marriage

for more than 30 years. Justice Dharmadhikari says that she was such an asset that for those 30 years, they had not to lock their house from outside. You may say that she was permanent choukidar and grandest grand mother for her grand children. Her vision in not spending on marriages was astounding. Otherwise with all the calamities how could she have lived up to the age of 90 years! Interaction with Dada made her brave to face the calamities. She is an example that empowerment of woman is the creation of woman herself. All her three daughters were married under the Special Marriage Act. Those were registered marriages and expenditure of each marriage was less than Rs. 25. Justice Dharmadhikari once asked her if she had faith in God. Her instant replay was: “yes! Otherwise how could I have brought up children, faced all the turmoil and lived for 90 years? This was all due to my unflinching faith in God.” By attitude and temperament, it was an example of glorious widowship like Punya shlok Ahilya Devi.

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Part II

Bombay High Court-Then and Now Emergency - A Period of Judicial Impotency Second Freedom Struggle 3 Cs - Cost, Corruption and Caste Appointment, Transfer and Impeachment Code of Conduct Judicial Standards and Accountability

Bombay High Court - Then and Now
The history of Bombay High Court could be said to have begun in 1670, when the first Law Courts were established by the British in Bombay. On February

2, 1670, two benches of Justices were constituted for the trial of minor disputes and offences. The Deputy Governor constituted a Court of appeal which was invested with the power to try all cases beyond the jurisdiction of the Justices. These Courts functioned for two years till 1672, when a Court of Judicature was established. This Court was inaugurated on August 8, 1672, by the Governor of Bombay, General Aungier, with due pomp and ceremony after a colorful procession, which included four attorneys or pleaders, had marched through the main thoroughfares of the city. In 1728, the Mayor’s Court was established under a Royal Charter. Its jurisdiction was limited to civil matters. The Royal Charter also constituted the Court of Oyer and Terminer and Jail Delivery, composed of the Governor and some members of his Council, who as Justices of the Peace had jurisdiction to try all offences except high treason. In 1753 a Court of Request was established for the trial of small causes. These Courts ceased to exist in 1798 when the Recorder’s Court was created with power to exercise both civil and criminal jurisdiction. The Recorder was the King’s Judge, unlike the Judges of the earlier Courts, who were the servants of the East India Company. The Recorders set up high traditions and it was from their time that the battle for the independence of the Judiciary commenced. In 1824 the Recorder’s Court was replaced by the Supreme Court. This Court carried on the struggle for judicial independence. In 1828 a letter was addressed to the Supreme Court that the Governor of Bombay had issued orders that a writ issued by the Supreme Court should not be executed. This was resented by the Judges, who had the Government letter read out in open Court and then declared: “Within these walls we know no equal and no superior, but God and the King”. Within about a fortnight thereafter one of the two Judges died. After a fresh writ issued by the Court had been disobeyed, the surviving Judge Sir John Peter Grant took the extreme step of closing the Supreme Court, and the business of the Court remained suspended for five months. The jurisdiction of the Supreme Court was confined to the town and island of Bombay. About the same time when this Court was established, Sudder Diwani Adalat were established to exercise supreme civil and criminal jurisdiction respectively over the other territories in the Presidency of Bombay. In 1861, the British Parliament enacted the Indian High Courts Act that empowered the Viceroy to establish a High Court in each of the three Presidencies of Bengal,

Madras and Bombay. It abolished the Supreme Court and the Sudder Diwani and Fouzdari Adalats and vested their original and appellate jurisdiction in the High Court. On 26th June 1862, Letters Patent were issued establishing the High Court at Bombay, providing for a total strength of 15 Judges. The birth of the High Court took place in a very quiet manner. There was no pomp nor pageantry and no procession like the one which was taken out in 1672. On August 14, 1862, the seven Judges appointed by the letters patent made a solemn declaration in the presence of the Bar and the public that from that date they would sit as Judges of the High Court, and with that declaration the High Court at Bombay came into being. The establishment of the High Court was a landmark in the history of this part of the country. It led to the introduction of a uniform system of law and procedure throughout the Presidency of Bombay and thereby contributed materially to national integration. It also ushered in the Rule of Law. For a long time the Judges of the High Court were, as a rule, Europeans. In June 1864 the first Indian, Rao Bahadur Janardhan Wassoodewji-the principal Sudder Amin, that is, a First Class Subordinate Judge, in Khandesh- was appointed as a Judge in a short leave vacancy of about two months. He acted as a Judge again for about four months in 1865. Nanabhai Haridas, who was previously a Government Pleader, was the first Indian to be appointed a permanent Judge. This was in 1883. The number of Indian Judges increased to two in 1895 and thereafter increased gradually during the 20th century. The Chief Justices were, however, without exception, English barristers. The first Indian to act as Chief Justice was Justice Badruddin Tyabji. He served as Chief Justice for about a month in a leave vacancy in January 1903. It was, however, not until we achieved independence that the first Indian, Mr. M.C. Chagla, was appointed as the permanent Chief Justice of Bombay High Court. There was not much statute law when the High Court began its career in 1862. The Civil Procedure Code was enacted in 1859, the Indian Penal Code in 1860 and the Criminal Procedure Code in 1861. In regard to other matters, the law was both uncertain and unsettled. The Judges, therefore, generally applied the principles of English law, with which they were familiar, except where the parties were Hindus or Mahomedans. The Hindu law was then in a State of confusion and uncertainty. There were several texts, a larger number of commentaries and divergent translations. The early decisions, and in particular those given by the Sudder Adalats on the advice of Hindu Shastris and Pandits

tended to make Hindu law rigid and unsuitable to the conditions of the day. Profound learning, laborious study and a broad vision were required to give the ancient laws a liberal, just and humane interpretation. Fortunately, the Judges of the caliber of Sir Michael Westropp, Sir Raymond West, Justice Telang and Justice Ranade embarked in a vogue of laying down and applying the text book principles. In the words of Justice Chandavarkar: “In the time of these Judges, the High Court embarked on an era of Hindu law reform. They had the daring of the Judges, who knew how to make the law bend to the cause of Justice. By striking out a path of their own they placed the administration of Hindu law on a progressive and liberal basis and thereby rendered service to the cause of progress in the country.” Many famous trials have taken place in this High Court. Two of these were of Lokmanya Tilak. At the end of his second trial in 1908, Tilak stated, that there are “higher powers that rule the destiny of men and nations” and that it might be “the will of Providence” that the cause which he represented might prosper more by his suffering than by his remaining free. The cause for which Tilak underwent great personal suffering prospered and the country gained Independence in 1947. Mysterious are the ways of Providence. On the midnight of 14th August 1947 in the very Sessions Court room in which Tilak had been tried and sentenced, the last English Chief Justice, Sir Leonard Stone, unfurled the national flag of India amidst strains of Vande Mataram. (Post Centenary Silver Jubilee of Bombay High Court: pp 2-6) On that occasion, Leonard Stone made a speech in which he said: “Our sentiments on this momentous occasion must, first, turn in prayer that this great endeavor may be crowned with happiness and success; secondly, in selfdedication by all the citizens of the new State in service to their State, in loyalty to its laws, and in human sympathy and kindness to all mankind; and thirdly, in rejoicing that the wishes and aspiration of the people of this sub-continent to be free and independent are being consummated; and that it is in the time of our lives that these things should happen, so that we are present to bear witness to them. “In one sense, we, who are assembled here, are performing a public function, in that as administrators of the law we form one of the great components of constitutional government. But in another sense, this is a domestic occasion, for, we all, judges or lawyers or members of the High Court

Staff, have come with our wives, our relatives and our friends, to be present in our own building, to pass these solemn moments together and to do honor to the emblem of the Union of India. There is a common bond of fellowship between us; for each of us in his appointed sphere plays his part in forwarding the cause of justice. Perhaps in the hour of triumph, we may recall for a moment the memory of some of our illustrious predecessors, whose noble contribution to the cause of liberty and equity have built up a reputation in our court so that it stands high in the esteem of our fellowmen. “British and Indians, Judges and lawyers, jurists and members of the staff have striven together as one united entity so that the honor and integrity of administration of justice may stand high in the realm of human rights.” After recalling the names of some of the past distinguished judges and lawyers of the Bombay High Court, the Chief Justice proceeded: “There are but a few of the great men who have graced this Court with their learning and vitality, with their justice acumen and forensic skill. I am the last of a long line of English Chief Justices of the High Court of Judicature of Bombay, a court, which with its predecessors, whose jurisdiction it has inherited and extended, dates back to 1672; and I am proud that, it is by my hand and at my command, that the banner of Independence should be raised in and upon this court, and all its historic associations. I thank you for this honor, which will be to me an abiding memory of your confidence. “This night, the nations greet, with goodwill and friendship, the Union of India, arising to independence; and I know that the good wishes of none can be so strong or so sincere as those of my own countrymen; for after all we and you have long associated. Let us mutually forget those chapters in our joint history which have not been happy, and let an abiding friendship endure between our two great races freedom-loving peoples. “The hills of time stand before us. They are shrouded in the mists of uncertainty and doubt which envelope a troubled world. Go bravely, forward, fearless and undaunted, carry the torch of liberty high, so that this new India may be strong and happy, and enjoy the blessings of true freedom, and so that you may take your place in the councils of the nations, living at home and abroad in mutual trust and concord and at peace. May God So Will.” When Leonard Stone departed, the question naturally arose as to who would be the first Indian Chief Justice. Every one knew it was going to be Chagla.

Nehru was keen that Chagla should be the first

Chief Justice of

Bombay in Free India and he had conveyed his decision to B.G. Kher, Chief Minister of Bombay. The only point about this decision was that it involved the supper session of Sen, who was senior to Chagla. Sen realized this himself, and so did all, that there was no comparison between Chagla and Sen. Sen was gentle, patient in hearing cases, responsive to all good arguments, co-operative with colleagues sitting with him, and he produced, though after laborious hearings, judgments which were undoubtedly readable. He was a Civil Service Judge and had many good points about him. He was a great gentleman and every one liked him. For choosing the first Chief Justice, quite different considerations, however, became relevant and material. Government had to choose a person who would maintain the excellent traditions of the Court and its position of prestige among all the High Courts in India. Judged from that point of view, Chagla was the obvious choice. Chagla was endowed with almost all the qualities necessary to make a brilliant lawyer, a successful Judge, and then, as events proved to the satisfaction of every one, a successful, efficient, powerful, popular and independent Chief Justice. He was a very good leader, helped create a democratic, friendly, co-operative atmosphere among his colleagues, succeeded in securing the confidence of his colleagues in all major administrative decisions. So far as judicial work was concerned, he was undoubtedly a judge of first order. No one could say that Nehru’s choice was not fully justified and it was best proved when, during Chagla’s tenure, the Bombay High Court retained its prestigious position in the Judiciary of India. (To the Best of My Memory: P.B. Gajendragadkar, pp 81-84) Bombay High Court and Chief Justice M.C. Chagla were really synonymous.

Great Judges
Great Judges have sat on the Bench of the Bombay High Court and eminent lawyers have practiced before them. Both have jointly contributed to the greatness of this Court. Amongst others, whose names readily come to mind, are Sir Joseph Arnould, who laid down the classic dictum “What is morally wrong cannot be spiritually right,” Sir Michael Westropp, Justice Telang and Justice Ranade, who will always be remembered for their courageous and liberal interpretation of ancient texts of Hindu law, Sir Charles Sargent, who encouraged

Indian advocates when the Original Side Bar was almost entirely British, Justice Badruddin Tyabji, who had many firsts to his credit, Sir Lawrence Jenkins, whose statue adorns the lawns of the High Court, Sir Norman Macleod who possessed the gift of arriving at quick and correct decisions, Sir Dinshah Mulla who was a great jurist and whose books are almost a second source of law, Sir Charles Fawcett and Sir Robert Broomfield, who examined each case with meticulous care and thoroughness, Sir Amberson Marten who was known for his legal learning, Sir John Beaumont who possessed a clear and a quick legal mind and whose judgments are remarkable for their lucidity and precision, Sir Harilal Kania, who combined strong commonsense with sound law and who was the first Indian Chief Justice of the Federal Court and the first Chief Justice of the Supreme Court, Gajendragadkar, whose erudition and powerful and distinguished personality were second to none; Tendulkar, who possessed a razor sharp intellect and had a rasping voice, Rajadhyksha, a great gentleman and a model of patience and courtesy and J.C. Shah, tall and handsome, whose grasp and understanding were exceptional. There were other eminent Judges like Bavadekar, R.M. Kantawala, V.D. Tulzapurkar and Mudholkar.

Hall Mark of Above Judges
Dispensation of justice without fear or favour has been the hall mark of the above judges. They kept the scales even in any legal combat between the rich and the poor; the mighty and the weak; the State and the citizen. It was for this reason that we need person on the Bench who can weigh things in the balance with supreme impartiality, who are absolute, justice pure and unalloyed, whom nothing can sway, neither mob frenzy or the views of the powers that be, persons with resolute hearts, persons whose allegiance is to justice and to nothing else. Timidity of mind ill goes together with the office of a judge. Weak characters cannot be good judges. So far as the judges of the High Court are concerned, their office demands that they be historian and prophet rolled into one, for law is not only as the past has shaped it in judgments already rendered but as

the future ought to shape it in cases yet to come. Law necessarily has to carry within it impress of the past tradition, the capacity to respond to the needs of the present and enough resilience to cope with demands of the future. (Law, Men of Law and Education: S.R. Khanna, pp 9-12) (Law, Weighed from the above angles, the learned judges of the Bombay High Court were in every sense good judges. It was a privilege to see them working in their Courts, the incisive intellect they brought to bear upon the work they were called upon to do. Howsoever, complex the problem the facts might be, within a short time they reached the central point which had to be decided and without flurry proceeded to deliver judgments not with any bombast, not with any ornaments of language, but in language which was clear, concise and so effective that it was not necessary to read a line over again to understand what it meant.

Giants at Bar
If there is indeed one profession which contributed the most in the fight for independence and played the most significant part in bringing about national awakening and political consciousness, it was the profession of law. Among the galaxy of leaders who led the struggle for independence the top position is held by the lawyers. Mahatma Gandhi, pandit Motilal Nehru, Lala Lajpat Rai, C.R. Das, Pandit Jawaharlal Nehru, Sardar Vallabhbhai Patel. Bhulabhai Desai. Srinivas lyengar, all hailed from the profession. The high status of lawyers in the Indian hierarchy reminds one of the words of De Tocqueville uttered in the early nineteenth century: “In America, there are no nobles or literary men of and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated section of society…..If I am asked where I place the American aristocracy, I should reply without hesitation that it is not composed of the rich, who are united by no common tie, but that it occupies the judicial Bench or the Bar.” In ensuring the rule of law the most significant part is, perhaps, played by the lawyers. Judges most often shine with the reflected glory. A good many of the judgments reveal not so much the erudition of the judge as of the counsel who argued the case and assisted judge by forensic arguments in preparing that judgment. We all remember Chief

Justice Marshall for his great judgment in Marbury vs Madison. We should not forget, at the same time, that for the preparation of that judgment Marshall had the advantage of written brief of the great lawyer, Daniel Webster. In the words of John Kennedy, Webster could throw thunderbolts at Hayne on the Senate Floor and then stroll a few steps down the corridor and dominate the Supreme Court as the foremost lawyer of his time. The same we can say of some of our stalwarts who are now no more. Of Motilal Nehru and Tej Bahadur Sapru, of Bhulabahai Desai and Mohammad Ali Jinah, of K.M. Munshi and Alladi Krishnaswamy Ayyer. Law, it has been said, does not live in the books; it lives with the profession. Judges dressed with their brief authority may seem to speak more finally, but it is only for the moment. In the end, they take their cues from the Bar, for, it is the Bar which makes the statutes and fabricates the adjustments which they express. It is also the Bar puts flesh and blood in their dry bones. Important cases bear the impress not only of the personality of the judges who decided those cases but also of that of the counsel who conducted them. Powerful Counsel has no doubt impact upon the strongest courts. At the same time. It may be pointed out, as observed by Frankfurter, that not the least distinction of a great judge is his capacity to assimilate, to modify or to reject the discursive and inevitably partisan argument of even the most persuasive counsel and to transform the raw material into a judicial judgment. Judges have indeed to be on the guard lest a vastly superior advocate overpowers his opponent and makes the worse policy alternative appear to be the better one. The effort should be to reduce to the minimum the imbalance resulting from inequality of legal representation in the adversary system. Fearlessness has been the outstanding tradition of the Bar. Where fear is, justice cannot be. It has been said that the members of the bar are the soldiers in the cause of justice upon earth. There were giants at the Bar too. To name a few: Anstey, Lowndes, Macpherson, Inverarity, Sir Chimanlal Setalvad, Mohammad Ali Jinnah, Bhulabhai Desai, M.R. Jayakar, Rao Saheb Mandlik, Daji Abbaji Khare, Diwan Bahadur, G.S. Rao, H.C. Coyajee, G.N. Thakore, A.G. Desai, Attorney General Mr. M.C. Setalvad,

Nuserwanjee Engineer, Manekshaw, Mangal Desai, K.T. Desai, Taraporevala and a host of others.

Dharap,

In the wake of old guards were H.M. Seervai, Nani Palkhivala, and V.M. Tarkunde. Both the Judges and lawyers of the Bombay High Court have made a name outside the domain of law. Justice Forbes, Justice Telang, Justice Ranade, Rao Saheb Mandlik and Tripathi were gifted and versatile writers, who have made signal contributions to our literature. Amongst the scholars and writers, Mahamahopadhyaya Dr. Kane and Dr. K. M. Munshi, Justice Ranade were associated, with many social reform movements. Sir Lawrence Jenkins was the founder of the Orient Club in Bombay. Justice Badruddin Tyabji and Sir Narayan Chandavarkar were Presidents of the Indian National Congress. The Father of the Nation, Mahatma Gandhi, was an advocate of this Court, even though he never practiced in it. Sir Phirozeshah Mehta, Sardar Vallabhbhai Patel, his brother Vithalbhai Patel, and Bhulabhai Desai, were some of the other members of the Bombay Bar, who have left a mark on the history of the country. Dr. Ambedkar, another gifted lawyer of this Court, occupies a place of his own in history on account of his ceaseless efforts to uplift his less fortunate fellowmen and the part he played in the framing of our Constitution. It is not the mere brilliance and learning of all these Judges and lawyers that has imparted greatness to the Bombay High Court but the fine traditions they handed down over the ages.

Thomas Erskine Tradition
The first and foremost tradition of the Bombay Bar has been its independence, its fearlessness displayed in its willingness to appear in unpopular causes for unpopular persons, irrespective of the fact that such a willingness often lead to loss of briefs, hostile and vituperative criticism, sometimes even ostracism. This is what may be called the Thomas Erskine tradition. Tom Paine, in his “Rights of Man”, had written some offensive remarks about William II and George I and was prosecuted for seditious libel. Erskine accepted the brief for Paine. Great pressure was put on him to refuse the brief. Lord Loughborough went out of his way to meet him as he was walking home and said: “Erskine, you must not take Paine’s brief”. Erskine replied: “But I have been retained and I will take it.” He did take it and when he came to address the jury he used these memorable words: “I will forever, at all hazards, assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable

part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will, or will not, stand between the Crown and the subject arraigned in the court where he daily sits to practice-from that moment the liberties of England are at an end.”

Bench and Bar on Test
During the Emergency, the Fundamental Right to life and liberty under Article 21 of the Constitution was suspended. The Parliament, to supersede the judicial decisions, passed an extraordinary law to the effect that ‘no citizen shall be entitled to liberty on the ground of natural law, common law, or rules of natural justice.’ Another law passed by Parliament was to the effect that ‘no police officer shall be permitted to disclose to a court of law the grounds on which an individual is detained, and if a man was released by a court because the detention was held to be unsustainable, he could be re-arrested on the same grounds after he left the court room.’ Both the Bench and the Bar were put to the test during the Emergency, and that test was passed with flying colors. The Bombay High Court stood firm as a rock for the rule of law, and it refused to countenance the argument, seriously urged by the Government Pleader, that if a detune was starved to death and shot, this court could offer him no relief. To the credit of the other High Courts, they also stood firm as a rock and they upheld the rule of law. One of the Chief Justices said: “If I accepted Government’s argument the ghost of Hitler would haunt the whole of India.” Our High Courts, let it be said to their credit, ordered certain detunes to be set free-those who had been arrested under a mistake of identity, or as a result of private vendetta, or at the whim and fancy of the executive, or without being heard at all. Dharmadhikari’s judgment was first in the line. When a warrant was issued in 1976 for the arrest of Ram Jethmalani, 300 lawyers led by Shri Nani Palkhivala obtained an interim stay at the Judge’s residence, it being a court holiday when the petition became ready. Eventually the petition came up for final hearing before Justice Agrawal. Shri Nani Palkhivala and Shri Soli Sorabjee argued it. They lost as was expected and an appeal had to be filed but the stay of arrest was continued by consent.

Appointment of Judges made by Justice Chagla
In the appointment of High Court Judges, one principle that Justice M.C. Chagla followed was that any lawyer who came to see him to canvass for a judgeship was automatically ruled out. He firmly held a view that a lawyer should be invited to come to the Bench; he should not seek that high office on his own. And none of the Judges whom Chagla appointed ever canvassed directly or indirectly for that office. It was he who had to ask them, and some times even beg them to accept a judgeship. Chagla appointed from the Appellate Side, J.C. Shah, Datar, Tarkunde, V.S. Desai and Dayabhai Patel, all of whom had a large and flourishing practice on the Appellate Side. From the Original Side, Chagla appointed K.T. Desai, S.T. Desai, N.A. Mody, and K.K. Desai all of whom without doubt were earning much more than what they drew as salary as a Judge. Chagla had to press every one of them to accept the judgeship, pointing out that unless some at least of the best men came to the Bench, the reputation and traditions of the High Court could not be maintained. He knew it entailed a sacrifice on their part. Chagla was also very clear in his mind that unless he had a suitable person to fill a vacancy, he should allow the vacancy to remain unfulfilled rather than appoint an unsuitable person to the post. Shri Y.B. Chavan, when he became Chief Minister told Chagla: “Chagla! As far as matters about High Court or judicial matters are concerned, I will strictly abide by your advice.” Chavan fully kept his word. There was never any difference of opinion between him and Chagla and whatever advice Chagla gave and whatever suggestions he made were accepted without any reservation. The only time when Chavan did not accept Chagla’s advice was with regard to his successor. Chagla strongly pressed Chavan to appoint J.C. Shah, who was then number two. Chagla told Chavan that if he appointed Shah, he would have consolation that he was leaving the High Court absolutely in safe hands. But there was Chainani, who was an I.C.S. and was senior to Shah and Chavan wanted that Chainani should succeed Chagla. Chagla reminded Chavan that the Bombay High Court had never had an I.C.S. Chief Justice before, and there was no compelling reason to make a departure. Chavan explained that passing over Chainani might offend the Sindhi community, which constituted a minority. Chagla told Chavan that he could only advice him on grounds of merit and not on political considerations. Such consideration would weigh with a politician, but they should

not and did not weigh with a Chief Justice. Ultimately communal consideration prevailed and Chainani succeeded Chagla much against latter’s recommendation. (Roses in December: M.C. Chagla, pp 169-170) (B)

Bar - then
Uprightness was the immaculate major premise of the Bar. Uprightness in its dealings with the Court, with the client and with fellow members of the Bar. It was unthinkable that counsel would utter an intentional falsehood in Court, or deceive and mislead the court by suppressing vital facts or documents in the case or by not citing judgments which were directly on the point though they militated against his submissions. Such conduct would be regarded as dishonorable and a breach of trust and confidence between the Bench and the Bar so essential for effective administration of Justice. It could be difficult and inconvenient at times to put this principle in practice but that was no reason for not upholding this tradition. If this is so then to call the Bench and Bar are two wheels of chariot of justice is misnomer. Full and meticulous preparation of the case was the hall mark of the Bombay Bar. The report of arguments in the ILR reports bears ample testimony to this. Above all there was recognition of the fundamental fact that the lawyer was practicing a noble profession and was not a trader who operated on the principle of demand and supply entitled to charge exorbitant fees on that basis. Even after making allowance for inflation the fees of leading seniors of those times appear ridiculously low when compared with the fees charged by some present day juniors.

Bar Now
The standards and the values of the legal profession have now reached all time low. By and large lawyers seem to have forgotten that as professionals, they are for the people and the people are not for their aggrandizement. A spirit of gross commercialization seems to have overtaken the profession. It is not suggested that the professionals live on love and fresh air and should not charge proper fees for their services. What is objectionable and scandalous is that there is no limit on the unaccounted fees in cash extracted by

some and that too in the ‘cause’ of personal liberty. More sinful is not paying income tax on this fees. In 1985, Michael Joseph published a book under the title, “Lawyers can Seriously Damage your Health.” Can we truthfully say that our lawyers do not seriously damage the health of the Nation? In the past if a Counsel, made a factual statement it was implicitly believed to be true. One seldom heard an affidavit filed on behalf of the government or any public authority, which did not contain the whole truth. But now all that have changed. Counsel often make statements which are factually incorrect and affidavits are often filed, even on behalf of public authorities, which do not state the whole truth. Justice Dharmadhikari says: “Lawyers’ profession has become speculative. It has ceased to be a profession and is becoming a business. In this context a reference could usefully be made to an article by Mahatma Gandhi in Young India dated 6th October 1920, which reads as under: “The economic drain that the law courts cause has at no time been considered. And yet it is not a trifle. Every institution founded under the present system is run on a most extravagant scale. Law courts are probably the most extravagantly run. I have some knowledge of the scale in England, a fair knowledge of the Indian and an intimate knowledge of the South African. I have no hesitation in saying that the Indian is comparatively the most extravagant and bears no relation to the general economic condition of the people. The best South African Lawyers-and they are lawyers of great ability- dare not charge the fees the lawyers in India do. Fifteen guineas is almost a top fee for legal opinion. Several thousand rupees have been known to have been charged in India. There is something sinful in a system in which it is possible for a lawyer to earn from fifty thousand to one lakh rupees per month. Today lawyers are charging more than this per day. Legal practice is not-ought not to be-a speculative business. The best legal talent must be available to the poorest at reasonable rates. But we have copied and improved upon the practice of the English lawyers. Englishmen find the climate of India trying. The habits imbued under a cold and severe climate are retained in India, ample margin is kept for frequent migrations to the hills and to their island home and an equally ample margin is kept for the education of an exclusive and aristocratic type for their children. The scale of their fees is naturally therefore pitched very high. But India cannot bear the

heavy drain. We fancy that, in order to feel the equals of these English lawyers, we must charge the same killing fees that the English do. It would be a sad day for India if it has to inherit the English scale and the English tastes so utterly unsuitable to the Indian environment. Any lawyer looking at the law courts and the passion of law from the view points I have ventured to suggest cannot keep coming to the conclusion that if he wants to serve the nation to the best of his ability, the first condition of service is suspension of his practice. He can come to a different conclusion only if he successfully changes the statement of facts I have made.” Justice Dharmadhikari further says: “We are following the same British legal system even today, which is an adversary judicial system, and not participatory. It is solely based on oral and documentary evidence. In our courts, in rarest of the rare case, a witness deposes and tells the whole truth before the courts and also before the public. There is nothing Swadesi or Indian in our legal system. The language, the dress, the thinking is not Swadesi. Right from enacting the laws, its Swadesi. implementation, rather everything is still the same. The common man for whom the laws are enacted is always ignorant about it, nor he can follow the proceedings of the court. Therefore, Gandhiji had said: “We shall promote Arbitration Courts and dispense justice, Pure, Simple, Home made justice, Swadesi justice to our countrymen.” Dharmadhikari believes in this proposition; and therefore, feels that a radical change is necessary in the judicial system to make it Swadesi judicial system. According to him courts should be Truth in Action as our motto is Satya Mevo Jayate. Can we say that this is true about the present system, when nobody Jayate. tells the whole truth in a Court of Law. This is Dharmadhikari’s painful agony. The search of truth is difficult in these circumstances, but Dharmadhikari could search it out. This was his specialty. From his Court both sides received utmost satisfaction. He also inspired confidence among all those who entered his court that justice is administered in his court with even hand in any legal combat between the State and the citizen without fear or favour. It also pains Dharmadhikari to say: “Today, unfortunately rather than a person who follows and respects the law, a person who can break the law, with impunity, is more respected. Rather your capacity to break laws alone decides your dignity and status in society. Therefore Gandhiji had said that schools and courts are healthy institutions, when the Government in charge is on the whole just. They are death traps, when the Government is unjust.”

High Judicial Traditions
A few words about the high judicial traditions of Bombay High Court. First and foremost is the tradition of judicial independence and courage. The history of the Bombay High Court is replete with instances of the valiant stand adopted by it throughout its history in the face of executive threats and encroachments. Vaacha’s “Famous Judges, Lawyers and Cases of Bombay” provides valuable information and insight into this aspect. Whatever faults our High Court may be accused of the judges of the Bombay High Court cannot be said to be the King’s Judges, who did the bidding of the executive. On occasions, these lions have roared so boldly and loudly that many a ministerial occupants had to leave their thrones in disgrace. Two centuries ago, the great democrat Edmund Burk gave the answer to the question as to why in a democracy, the higher judiciary is invested with power to decide finally all disputes between citizen and State: “Men trained in the law augur of misgovernment and sniff the approach of tyranny in every tainted breeze.” It was this facility of auguring of misgovernment that sent two Chief Ministers of Maharashtra packing by the decision of the Judges of the Bombay High Court. The reactions in the corridors of power to the Bombay High Court orders and decisions are reminiscent of Harold Laski’s famous quip (though uttered in a somewhat different context), “It is not injustice that worries me, it is justice that hurts me.” Very often it is justice that hurts those who exercise executive power. They do not want justice, they only want a judgment in their favor. The other tradition of Bombay High Court has been that of impartiality, of deciding cases according to law without reference to the personal prejudices and predilections of the judge. True, there have been lapses but they only prove the general rule. Next is the tradition of dignity and decorum maintained both in and outside the Court. Last but not the least, the tradition of learning and erudition which is reflected in the leading judgments of the Court on subjects ranging from Constitution to customs and Hindu Law to stock exchange transactions is exemplary.

Decline in Standard and Efficiency
There has been unmistakable evidence of decline in the standards and efficiency and correct behavior at the Bar that necessarily postulates a corresponding decline in the Bench, for the Bench and the Bar are the wings of the same profession-the profession of the Law.

Corruption
Today, there are rumors circulating about judicial improprieties and there are dark hints and whispers of corruption having touched the High Court. In the past, a person who made such allegation against a Judge of the High Court would have been rightly regarded as a potential inmate of a lunatic asylum. Today, most regretfully, he is listened to without disbelief. In the words of Dharmadhikari three Ms that is Money Power, Muscle Power, and Mafia Power are running parallel system.” How true it is? The lawyers’ associations of Bombay passed a resolution a few years back, virtually charging some Judges of the High Court with corruption-a move unprecedented in history of any modern democracy. The Chief Justice Chittatosh Mukerjee had to take an extreme step, for which he deserves congratulations, of not allotting any cases or Judicial Powers to three Judges of Bombay High Court for some years. These three Judges told Justice Mukerjee that his action is beyond his powers and jurisdiction, on which they were advised by Justice Mukerjee to file writ Petition and get his order set aside. The three Judges dare not file writ Petition. It was only a threat. The said Judges continued in office till their retirement, enjoying the office, and remuneration without doing any judicial work. Public disenchantment with judicial administration has been vastly aggravated by the recent developments in the Bombay High Court. If you lose faith in politicians, you can change them. If you lose faith in Judges, you still have to live with them. The ineluctable fact is that the conduct of some judicial officers in different courts has been far from exemplary in terms of ethics. The Post Centenary Silver Jubilee of the Bombay High Court has already been celebrated reciting the glory, traditions, reputation of the High Court, and also at the same time pointing the present conditions. I hope that when we celebrate the 150th anniversary of Bombay High Court in 2012 A.D. as expressed by Soli Sorabjee: “We shall do so with greater

pride and satisfaction. And we shall be able to say that we found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.” ********

Emergency A Period of Judicial Impotency
Raj Narain, who had been defeated in parliamentary election by Narain, Indira Gandhi, lodged cases of election fraud and use of state machinery for election purposes against Mrs. Indira Gandhi in the Allahabad High Court. On 12th June 1975, Justice Jagmohanlal Sinha of the Allahabad Court. High Court found the Prime Minister guilty on the charge of misuse of government machinery for her election campaign. The court declared her election null and void and unseated her from her seat in the Lok Sabha. The court also banned her from contesting any election for an Sabha. additional six years. When Prime Minister Indira Gandhi found the High Court of Allahabad holding her election void, she went in appeal to the Supreme Court. Unless an absolute stay of the order voiding her election was secured, she might have lost her membership of Parliament and, perhaps, also her high office as Prime Minister. So the then Minister for Law and Justice Mr. H.R. Gokhale moved an interlocutory application for an absolute ad interim stay. Justice V.R. Krishna Iyer was the Vacation Judge He declined to receive Gokhale at his residence and directed him to file the petition before the Ragistry. This was a surprise to him because these days judges oblige the influential and powerful litigants by hearing them even at night or on holidays – a privilege which the poor do not enjoy. Access to justice is sometimes not equal. But on Iyer’s declining to receive Gokhale with a stay petition, the Law Minister filed his petition in the formal way in the court. Justice Iyer heard the case the next day. Eminent counsel on both sides made powerful presentations. Justice Iyer declined absolute stay but granted

conditional stay of the order of the High Court. His speaking order is as given below: I. II. Subject to para III below, there will be a stay of the Consequentially, the disqualification imposed upon the operation of the judgment and order of the High Court under appeal. appellant as a statutory sequel under section 8A of the Act and as forming part of the judgment and order impugned will also stand suspended. That is to say, the petitioner will remain a member of the Lok Sabha for all purposes except to the extent restricted by para III so long as the stay order lasts.

III.

The appellant-petitioner, qua Lok Sabha member, will be

entitled to sign the Register kept in the House for that purpose and attend the sessions of the Lok Sabha, but she will neither participate in the proceedings in the Lok Sabha nor vote nor draw remuneration in her capacity as Member of the Lok Sabha. IV. Independently of the restrictions under para III on her membership of the Lok Sabha, her rights as Prime Minister or Minister, so long as she fills that office, to speak in and otherwise to take part in the proceedings of either House of Parliament or a joint sitting of the Houses (without right to vote) and to discharge other functions such as are laid down in Articles 74, 75, 78, 88, etc., or under any other law, and to draw her salary as Prime Minister, shall not be affected or detracted from on account of the conditions contained in this stay order. Indira Gandhi proclaimed Emergency, so that she could continue Prime Minister without waiting for the decision of Supreme Court which could go either way. The moment this historic proclamation was signed by the president, Indira Gandhi became bold and ordered switching off power supply to all News Papers so that there was no issue in the morning with any editorial or comments on the issue of Emergency. On 26th June she addressed the nation on AIR trying to justify the proclamation of Emergency. Here are some extracts from her speech: The President has proclaimed the emergency. This is nothing to panic about. I am sure you all are conscious of deep and widespread conspiracy, which has been ever since I began to introduce certain progressive measures of benefit to the Common man and woman of

India… Certain persons have gone to the length of muting our armed forces to mutiny and our police to rebel…..The forces of disintegration are in full play and Communal passion’s are being aroused threatening our, unity…..This is not a personal matter. It is not important whether I remain Prime Minister or not…….. May I appeal for your continued cooperation and trust in the days ahead. The most scathing comment on Indira Gandhi’s decision to impose Emergency and arresting opposition leaders came from Jayaprakash Naryan. I never thought that the daughter of Pandit Jawaharlal Nehru would dare or stoop to snuff out the lamp of liberty to serve her personal and dynastic ends. I was therefore rudely shocked – plunged into deep anguish rather than swayed by anger – when Smt. Indian Gandhi clamped down Emergency at mid-night on June 25, 1975 and ordered the large-scale arrest of Opposition leaders and critics of her Government. He ended his comment by saying: “Vinaash kaale vipreet buddhi” (when the time for destruction comes, the brain goes topsy turvy). The first mid night knock during the night of 25-26, June 1975 was at the Gandhi Peace Foundation, New Delhi, for arresting, under MISA old and ailing Jayaprakash Narayan, who was then engaged in guiding the spontaneous student’s movements in Gujarat and Bihar and also demanding the stepping down by Indira Gandhi as Prime Minister, after her election was set aside by the Allahabad High Court. Though he was suffering from acute diabetics, he was removed to an undisclosed place and kept in solitary confinement. Justice M.C. Chagla issued a strong statement denouncing the Emergency and characterizing it as a direct attack on democracy. His statement was published in the special bulletins that the Evening News and Janmabhoomi brought out, but it disappeared from their regular edition because by that time censorship had been clamped down in all its rigour. The censor was just a little too late for the special bulletins. On June 26, 1975, lawyers all over India strongly condemned the declaration of Emergency and arrest of J.P. and other leaders and abstained from work for the day. The lawyers were the most vociferous in resisting the Emergency. They filed Habeas Corpus Petitions on behalf of the detenus, challenged orders against censorship of periodicals like Bhoomiputra, of Ahmedabad, Sadhana of Pune, and Freedom First of Mumbai. The Supreme Court

by a majority of four (with Justice Khanna differing) decided that MISA was not unconstitutional and detenus had no right to file Habeas Corpus Petitions as vital Fundamental Rights were suspended by the Declaration of Emergency. Justice V.M.Tarkunde severely and fearlessly criticized the judgment of the Supreme Court through an editorial, in the Radical Humanist under the caption, “Judicial Suicide.” A senior Advocate and Jurist Shri H.M. Seervai said: “While the High Courts rose to the occasion, the Supreme Court sank.” Though in different context Mahatma Gandhi had said about such a Judgment, “My condolence and pity go out to the Judges who have delivered a judgment which, let me hope, in their cooler moments they will regret.” Shri Atal Behari Bajpayee, L.K. Advani, Madhu Dandavate and S.N. Mishra filed Habeas Corpus Petition in Karnataka High court, while they were in Bangalore jail. Justice M.C. Chagla pleaded their case. Opening the case, Chagla stated that though he had given up his practice and stopped appearing in courts, he had specially come from Bombay to Bangalore as he felt that this was National duty. He said that he was not there to argue just any case. He argued that the continuance of external Emergency declared on 3 December 1971, after the war with Pakistan had come to an end, was a clear fraud on the Constitution. He added that the declaration of Emergency on 25 June was not for the purpose for which the power was conferred on the President under Article 352 of the Constitution, but for a collateral purpose ensuring the continuance of Indira Gandhi as Prime Minister. In his argument Chagla added irrespective of the legal controversy whether, after the conditional stay order granted by the Supreme Court, Indira Gandhi could have continued as Prime Minister until her appeal was decided by the Appex Court or not, respecting the democratic norms and precedents, and as a model to all citizens in obeying the decisions of the judiciary, Indira Gandhi ought to have resigned forthwith. On an earlier occasion, she herself had insisted that Channa Reddy quit the Union Cabinet after his election to the Lok Sabha had been set aside. Her stand was the same as in the case of D.P. Mishra under similar circumstances. Both of them had resigned, but when it came to her own case she disregarded those healthy democratic norms, and refused to quit. Instead, she decided to misuse the State machinery and constitutional powers for perpetuating her stay in office.

Commenting on the detention of Jayaprakash Narayan and prominent leaders of the opposition, including the petitioners in these cases, Chagla said that their patriotism and their devotion to the service of the nation was unquestionable. “They are eminent parliamentarians, and their arrest under the draconian provisions of MISA, is something beyond my comprehension,” he observed. “Under the provisions of the MISA only such persons who are guilty of violent activities in an attempt to overthrow a constitutionally formed government by violent methods can be arrested. In a democratic system, it is not only the right, but it is also the duty of the Opposition leaders to demand the resignation of any person, including the Prime Minister, under such circumstances. If these Opposition leaders had failed to demand the resignation of Indira Gandhi from the office of Prime Minister after her election to Lok Sabha was set aside, they would not have been worthy of being Opposition leaders.” Chagla continued his arguments the next day. September 30 was his birth day and his family members were extremely upset at his being in Bangalore. They tried hard to get him back but his firm response was: “What better way can there be of celebrating one’s birthday than fighting for the people’s freedom and civil liberties?” When the petitioners expressed their deep appreciation to Chagla for his presence despite his ill health, he said: “For a matter of this kind, I would have come even if I had been on my deathbed.”

Constitution Mangled, Judiciary Maimed
In the very first session of Parliament in the monsoon of 1975, after the declaration of emergency, the government got the 39th Constitution Amendment Bill passed. It made the proclamation of the Emergency non-justifiable and protected the provision of the President’s ‘satisfaction’ from judicial scrutiny not only in the matter of Article 352 (proclamation of Emergency), but also with regard to Article 123 (Proclamation of Ordinances) and Article 356 (Imposition of President’s Rule in States). The Governor’s powers to issue Ordinances under Article 213 was similarly, protected. Protection was also accorded to President’s powers to suspend citizens’ Fundamental Rights under Article 359. Clearly, the government laid the foundation for an authoritarian State, in which the Prime Minister first turned the incumbent of the Rashtrapati Bhavan into a rubberstamp, and made the rubberstamp, and self unaccountable to the judiciary.

Remember Abu Abraham’s immortal cartoon in Indian Express showing President Fakhrudin Ali Ahmed in his bath-tub, handing out a signed ordinance through a half-ajar door, and saying, if there are more ordinances, can they wait till I finish. MISA was amended to make it more draconian. The constitutional obligation on the government to furnish a detenu with the grounds of his or her detention was done away with. No person arrested under the amended Act could be released on bail or bond. The DIR, 1971, was an outcome of an external Emergency imposed at the time of the war for the liberation of Bangladesh. This too was amended to make its stringent provisions applicable in the internal Emergency of 1975. The Criminal Procedure Code was amended to abolish the distinction between cognizable and non-cognizable offences. On 4 August, the Law Minister H.R. Gokhale introduced a Bill in the Lok Sabha to define, with retrospective effect (a) When a person becomes a candidate in an election; (b) What assistance given by a government official to a candidate would be deemed corrupt; and servant’s resignation would become effective. Lal Krishna Advani, who was under detention wrote in his prison diary on that day: “Any one could see what the Bill was intended to achieve. It was a shameless attempt to undo the Allahabad verdict on Indira Gandhi’s electoral corruption. It was like amending the rules of a game and applying the new rules to a match already played with a view to declaring the loser the winner. All the loudmouthed protests that the Emergency had nothing to do with, the Allahabad case or with Indira Gandhi’s person are now dramatically repudiated by the Government itself by this Bill.” (My Country My Life: L.K. Advani, p 230) Within a few days, the Bill was passed, in both Houses of Parliament with hardly any debate. On 7 August, 1975 the government introduced the 40 th Constitution Amendment Bill. It aimed at preventing the courts from hearing petitions challenging the election of the President, Vice President, and M.Ps holding the office of Prime Minister and the Speaker of the Lok Sabha. These elections, the amendment provided, could be challenged only before a special forum to be created by Parliament. The most obnoxious feature of the Bill was its fourth clause, which declared that all decisions taken by a High Court with regard to the election of any of these four dignitaries would be deemed null and void! Under (c) When a government

the cloak of exercising its power to amend, Parliament had thus usurped the powers of the judiciary. As the following sequence of events shows, this was also the fastest Constitutional amendment in India’s history.

7 August 1975 7 August 1975 8 August 1975 8 August 1975 9 August 1975 10 August 1975 debate.

Introduced in the Lok Sabha Passed by Lok Sabha after a two hour Introduced in the Rajya Sabha Passed by Rajya Sabha Passed by State Legislatures President gives his assent

Why was the Congress party in such a crude haste to amend the Constitution? Because, the Supreme Court was to hear Indira Gandhi’s election petition on 11 August 1975. On 7 November, the Supreme Court validated Indira Gandhi’s election. It also retrospectively validated the Constitutional amendment. L.K. Advani writes: “In theory, the Indian Constitution was still republican. For all practical purposes, however, the law was being so distorted as to make Indira Gandhi like the Queen of England, legally unassailable for any wrong she committed. What else should be done to put the constitutional imprimatur to such an Indira-can-do-no-wrong concept?” (My Country My Life: L.K. Advani, p 232) The next day, which was to be the last day of Rajya Sabha session, Gokhale produced the Constitution (41st Amendment) Bill. By amending Article 361, it sought, mainly, to confer upon the Prime Minister immunity against criminal proceedings in just about every conceivable case. It may be said that the Constitution was twisted and tailored, mangled and mutilated to sub-serve the interests of a single individual. An all-India Civil Liberties Conference was held in Ahmedabad on 12th October 1975. At that conference Chagla delivered a speech in which, he pointed out that the conspiracy Indira was talking about was not a conspiracy by the Opposition, but a conspiracy by her to overthrow democracy and establish an authoritarian regime. Chagla ended up by saying that when the night is darkest, the dawn is not far,

and that for thousands of years we had survived invasions and all sorts of troubles and we would survive both Indira and her dictatorship. The speech was published in a Gujrati periodical Boomi Putra, edited by Narayan Desai, son of Mahadev Desai, who was Secretary of Gandhiji. The Central Government instituted proceedings for the forfeiture of the Press under the Emergency laws. In 1976, the government introduced in Parliament the Constitution (44th Amendment) Bill which, after adoption became the 42nd Amendment. Apart from providing for a six year term for a Lok Sabha and the State Assemblies, it sought to drastically curtail the Fundamental Rights of citizens and make the most rapacious encroachments into the independence of the judiciary. Almost all laws and government actions were made unchallengeable in courts. It also had two particularly pernicious provisions: (i) It authorized the President to amend the Constitution through an executive order for two years; (ii) It abolished the need for quorum in Parliament, which meant that just two or four members could make laws for the country. When the government introduced this Bill in Parliament, veteran Socialist party leader H.V. Kamath sharply remarked: “This is not to amend the Constitution, but to end the Constitution.” At its session in Chandigarh in December 1975, the All India Congress Committee had called for a ‘second look’ at the Constitution. Umashankar Dixit, a senior Minister in the government, who was called shadow Congress President, had audacity to say that if the present limitations on Parliament’s power of amendments were not removed, a new Constituent Assembly would have to be convened to frame a new Constitution. Sidhartha Shankar Ray, who had accompanied Indira Gandhi to Rashtrapati Bhavan on the evening of 25 June to get the President’s consent to declare Emergency had publicly stated that the power of judicial review of parliament’s decisions was preventing the emergence of a new economic order. The Congress President Devkant Barooha endorsed the Emergency with the immortal words: “Indira is India and India is Indira.” He also declared that the country can do without the Opposition. And that they are irrelevant to the history of India. Justice M.C. Chagla in his autobiography, “Roses in December at pages 493-494 writes:

With certain notable exceptions the ones who accepted the Emergency – the most contemptible – were the intelligentsia and the industrialists. The failure of the intelligentsia to stand up to the Government was the biggest blot in the history of the 20 months. Artists, writers and actors climbed on the band wagon of Mrs. Gandhi and lustily cheered the slogan “India was Indira and Indira was India.” Even academicians, professors, Vice-Chancellors welcomed the Emergency as a quick and effective solution to student trouble. The Vice-Chancellor of Bombay University actually introduced Indira’s 20point programme as a subject in the curriculum of the Law College. The industrialists, of course, thought of their profits and were grateful to Government for permitting them to make a quick buck with no questions asked, provided they subscribed to the Party funds which they did with lavish generosity. They had no money to pay their poor workers but they could not or would not resist the demands of the Congress leaders. The one class, I am proud to say, that showed courage and fearlessness, was the legal profession. Barring a few black legs, they either observed a sullen silence or tried to hold meetings and support the underground movement and the underground press. The legitimate Press, with one or two notable exceptions, was supine and, forgetting the part the American Press had played during the Nixon era, meekly submitted to the orders and directives of the censor. I must also make honourable mention of some of the judges of the High Courts, who proved themselves to be greater custodians of the citizen’s rights than the effete and subservient Supreme Court. I must not overlook the great work by voluntary organizations like Sarvodaya Sangh and Gandhi Peace Foundation. They helped to keep the spirit of the people up and in the encircling gloom were a flicker of light. Shri H.Y. Sharada Prasad, who was long time Principal Information Adviser to Indira Gandhi and Rajive Gandhi says: “Some of the officials who carried out the orders with seeming willingness at the time are now busy claiming that they were not collaborators at all but unsung heroes of resistance. Many journalists are making it out that they were lions, although they wore sheep’s

clothing then. The most vociferous of all are the university men, who always are custodians of personal freedoms. (The Book I Won’t Be Writing: H.Y. Sharada Prasad, pp 112-114)

ADM Jabalpur Case
In the early hours of June 26, 1975, numerous detentions had taken place all over India under the Maintenance of Internal Security Act. As a result, habeas corpus petitions were filed in various High Courts. The government had raised a preliminary objection in all these cases. It contended that in asking for release by the issuance of a writ of habeas corpus, the detunes were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law. This plea was available to them only under Article 21 of the Constitution. But since the right to move for enforcement of that right had been suspended by the Presidential Order dated 27 June 1975, the petitions were liable to be dismissed at the threshold. The preliminary objection, despite the proclamation of Emergency and the various presidential orders and ordinances that were being passed to keep ahead of the courts, was rejected by the High Courts of Madhya Pradesh, Allahabad, Bombay, Delhi, Karnataka, Punjab and Rajasthan for various reasons. The State Governments and the Government of India promptly filed appeals in the Supreme Court. On 1 September 1975, the Madhya Pradesh High Court had ruled in Shivkant Shukla versus Additional District Magistrate, Jabalpur, that habeas corpus as an instrument to protect persons against illegal imprisonment was written into the Constitution. Therefore, Parliament or the Executive could not abridge its use by the courts except by constitutional amendment. Some of the other reasons given by the High Courts for not accepting the government’s preliminary objections were: that a detune could challenge an order as ultra virus, that is, if, on the face of it, it had been passed by an authority not empowered to do so; or if it had been passed mala fide or for extraneous reasons or if the detaining authority had not applied its mind to the relevant reasons. They also held that the court’s jurisdiction included knowing the grounds of detention, although the Government, by two ordinances-retrospective at thathad sought to deny detunes (or the courts) any information regarding the grounds of their detention, and had sought to exclude recourse to the concepts

of natural justice and common law in detention cases. In some cases the High Courts granted certificates of appeal to the Supreme Court as they felt that the cases involved substantial questions of law, which the Supreme Court should decide. All the Government’s appeals against the habeas corpus rulings were clubbed together with Shivkant Shukla’s case and came to be known as ADM Jabalpur’s case. The Supreme Court Bar Association was full of rumours that Chief Justice Ray would constitute a ‘suitable’ bench. Telegrams were sent to him from all over the country requesting or demanding that the bench be constituted according to seniority. Members of the Bar were extremely agitated and in a most unusual gesture, C.K. Daphtary, a former Attorney General, called on the Chief Justice and suggested that he follows the seniority criteria. Chief Justice Ray was rather annoyed at this intrusion but did Constitute the Bench accordingly leaving Justice K.K. Mathew who was due to retire in January 1976. The hearing started on 15 December 1975. The case went on for thirty-seven days and the hearing concluded on 25 February 1976. On 28 April 1976 the judges held by a four to one majority that a detention order could not be challenged on any ground during the Emergency. In coming to this conclusion they obviously overruled all those High Courts which had decided in favor of the detunes. The bench of five included some of the brightest judges. They held that no citizen had standing to move a High Court for a writ of habeas corpus in view of the Presidential order dated 27 June 1975. They also held that detunes could not challenge a detention order as either factually illegal or mala fide in law and that the provision for not revealing the grounds of detention was valid. Further, they held that Article 21 was the sole repository of the right to life and personal liberty against the State, and this article had been explicitly suspended. However, Justice Chandrachud expressed ‘a diamond-bright diamond-hard hope’ that reported misdeeds of whipping, stripping, starving or even shooting detunes would not tarnish the record of Free India. And Justice Beg astoundingly pronounced that ‘the care and concern bestowed by the State authorities upon the welfare of detunes who are well-housed, well-fed and welltreated, is almost maternal. Even parents have to take appropriate preventive action against those children who may threaten to burn down the house they live in.’

Attorney General Niren De had argued that the rule of law existed only within the four corners of the Constitution and that natural rights did not exist outside it. Justice Khanna, referring to Article 21, which deals not only with liberty but also with life, asked him, if a policeman killed a person for reasons of enmity and not of State, was there to be no remedy? Niren De replied that, consistent with his argument, as long as the Emergency lasted, there would be no remedy, and added, ‘It shocks my conscience and may shock yours.’ However, Justice Khanna held that Article 21 could not be held to be the sole repository of the right to life and personal liberty. In fact, it was an essential postulate and basic assumption of the rule of law in every civilized society. He added that Article 226 which empowered the High Courts to issue writs, was an integral part of the Constitution and could not be bypassed by the Presidential order; and that rights created by statutes which were not fundamental rights could also be enforced during the period of Emergency. Further, there was no contradiction between the power of the government to detain a person under preventive detention and the power of the court to examine the legality of such a detention. Justice Khanna held that the suspension of fundamental rights puts the Indian citizen in no worse position than the citizen of the United Kingdom where there are no guaranteed fundamental rights or the citizen of British India before independence, and that an illegal or mala fide order of detention can always be challenged in a court of law, even during times of emergency. The key to Justice Khanna’s judgment is in his opening words: “The law of preventive detention, of detention without trial, is anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life.” Justice Khanna further held: “Even in the absence of fundamental rights, the State has got no power to deprive a person of his life or personal liberty without the authority of law. That is the essential postulate and basic assumption of the rule of law in every civilized society.”

It was left to a single good and courageous Judge, Mr. Justice H.R. Khanna, to dissent and to uphold the right to life and liberty. This certainly was not easy to do in the fear-filled atmosphere that prevailed at the time. In his dissenting note Justice Khanna wrote: “I am aware of the desirability of unanimity if possible. Unanimity obtained without sacrifice of conviction commands the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. As observed by Chief Justice Hughes, judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a court of last resort, to use his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct that error into which the dissenting judge believes the court to have been betrayed.” (Law, Men of Law and Education: Justice (Law, S.R.Khanna, pp 35-36) 35-36) Justice Khanna had been made to pay the price for his independence and intellectual integrity. He was passed over for the Chief Justiceship. The official reason given for the supersession of Justice Khanna was that he would have been the Chief Justice for five months only. It may be recollected that Justice J.C.Shah was appointed as Chief Justice although he was to hold it for only a month and half. When the Law Commission recommended that irrespective of seniority “the most suitable person” should be chosen the Chief Justice of India, they did not mean suitability from the view point of the executive. Their recommendation is in the following words: “For the performance of the duties of Chief Justice of India, there is needed, not only a judge of ability and experience, but also a competent administrator capable of handling complex matters that may arise from time to time, a shrewd judge of men and personalities and, above all, a person of sturdy independence and towering personality who would, on the occasion arising, be a watch-dog of independence of judiciary.

“In our view therefore, the filling of a vacancy in the office of the Chief Justice of India should be approached with paramount regard to the considerations we have mentioned above. It may be that the senior most puisne judge fulfills these requirements. If so, there could be no objection to his being appointed to fill the office.” Nani Palkhivala said; “If the qualities needed, according to the Law Commission, in the Chief Justice were to be the real criteria, there was the strongest possible case for not superseding H.R.Khanna. He yielded to none in sturdy independence and in his capacity to act as the watch-dog of the independence of the judiciary. As regards administrative experience, Khanna had already served with great distinction as the Chief Justice of the Delhi High Court.” Nani Plkhivala further said: “A judge who, only a few months before the question of his appointment to head the highest court was to arise, ruled in favour of the citizen detained without a charge, without a trial, and without even the authority of any law, was certainly not deflected by worldly ambitions. “While H.R.Khanna’s supersession must cause widespread public distress, for him personally nothing is here for tears, nothing to wail or knock the breast. Milton received ten pounds in all for Paradise Lost, and Mark Pattison’s comment was: ‘ Surely it is better so; better to know that the noblest monument of English letters had no money value, than to think of it as having been paid for at a pound the line.’ It is better to know that there are still judges in our midst who are true to the light within them.” Justice M.C. Chagla in his autobiography, “Roses in December” at pages 488-489 writes: Justice Khanna delivered the minority judgement in the habeas corpus case, holding that notwithstanding the suspension of Article 21, no illegal or mala fide order could be allowed to stand and the right of the citizen to challenge such an order by a writ of habeas corpus, could not be taken away the same any circumstance. Eight High Courts had taken the same view and yet his four collegues differed from all of them and denied to the citizen any remedy whatsoever, even if he was detained by Government by an order which was patently and palpably illegal or mala fide or passed for ulterior reasons. The New York Times

in a leading article asked the people of India to raise a monument to Justice Khanna and opined that the four other judges would be remembered only in infamy. I presided over a dinner which the Bombay Bar gave to Justice Khanna and I observed that we had not raised any monument to him in the shape of a statue or a bust, but he can carry with him the satisfaction that there will always be a monument for him in the hearts of the people and that was a much greater tribute than something made of marble. “The effect of these supersessions was most deleterious on the judges of the Supreme Court who were in the line of succession to the Chief Justiceship. Each eyed the other with suspicion and tried to outdo him in proclaiming his loyalty to the Government either in their judgements or even on public platforms. If a judge owes his promotion to the favour of Government and not to his own intrinsic merit, then the independence of the judiciary is inevitably lost.” In December 1978, Justice Khnna’s portrait was unveiled by the Chief Justice of India in the Supreme Court, the only living Judge to have been conferred this honour.

Emergency Verdict Erroneous
The Supreme Court admitted in December 2010 that a 1976 verdict by it on Emergency had violated Fundamental Rights of a large number of people. A Bench of justice Aftab Alam and Justice Ashok Kumar Ganguly in their judgment said: “A majority decision of a five-member Constitution Bench upholding the suspension of Fundamental Rights during Emergency in the ADM Jabalpur vs Shivkant Shukla was erroneous. “The majority opinion was that in view of the Presidential Order dated 27.6.1975 under Article 359 (1) of the Constitution, no person has the locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of Preventive Detention (MISA) on the ground that the order is illegal or mala-fide or not in compliance with the Act,” Justice Ganguly wrote in the judgment.

The judges pointed out that in the 4:1 ruling, it was Justice S.R. Khanna, who rightly gave a dissenting judgment by holding that under clause (8) of Article 226 under which the High Courts can issue writ of habeas corpus in an integrated part of the Constitution. The two Judges further said that no power has been conferred upon any authority in the constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of Emergency. The Judges recalled the comment of former Chief Justice of India Justice M.N. Venkatachalliah in the Khanna Memorial Lecture on 25.2.2009 that the majority decision in the Emergency case be “confined to the dust bin of history.” The Judges further said: “In fact, the dissent of Justice Khanna became the law of the land, which by virtue of the 44 th Constitutional Amendment, Article 20 and 21 (personal liberty) were excluded from the purview of suspension during Emergency.” (The Asian Age: 3.1.2011) The above judgment proves that there are still judges in our midst who are true to the light within them.

Shah Commission’s Indictment of the Emergency
In 1977, the Government of India appointed a one-man commission, headed by Justice J.C. Shah, a retired Judge of the Supreme Court, to inquire into all the excesses committed by the Indira Gandhi Government during the Emergency. Calling the Emergency a fraud on the President, a fraud on the council of ministers and a fraud on the people, the Shah Commission observed at the end of its report: “As borne out by the records of the Government and deposition of several responsible Government servants, dishonesty and falsehood became almost a way of official life during the Emergency. As Robert Frost said, ‘Most of the change we think we seek in life is due to truth being in or out of our favor.’ If the administrative machinery in our country is to be rendered safe for our children, the Services must give a better account of themselves by standing up for the basic values of an honest and efficient administration. That alone can resurrect the people’s lost faith once again in our Services. If a democratic

heritage is to be left for future generations, we should want the truth again to be enshrined in the legislative place in social, political and economic scheme of things in our country. There is nothing unattainable or profound in this. It is a simple human message.” The Report further said that the abuse of power and authority and assault on the constitution guaranteed Fundamental Rights were too naked and brazen to be draped in flimsy defences. The mid-night knocks and arbitrary arrests; censorship of the press; premature retirement or super-session of inconvenient officers, including the members of the higher judiciary; bulldozing of the slums; and forced sterilization of men-all these sullied the claims of the country to the virtues of toleration. If the result of the 1977 election, certified to the veracity of the excesses, the findings of the Shah Commission came as a judicial confirmation. As pointed out by Era Sezhiyan, in his book, “Shah Commission Report-the Lost and Regained:” “it is more than an investigative report; it is a magnificent historical document to serve as a warning for those coming to power in the future not to disturb the basic structure of a functioning democracy and also, for those suppressed under a despotic rule, a hopefull guide and to redeem the freedom by spirited struggle.” (The Hindu, dated 8.2.2011) The report of Shah Commission was virtually banned when Gandhi returned to power in 1980. Perhaps the best account of the events of 25-26 June can be found in Bishan N. Tandon’s PMO Diary, which was published twenty-five years after Emergency was lifted. Tandon, an outstanding IAS officer, was then a Joint Secretary in the PMO. He writes: “As I was leaving for the office, Sharada Prasad (the Prime Minister’s Principal Information Officer) phoned to say, ‘You must have heard. It is all over.’ He sounded very dejected. On reaching office, I went straight to Sharada’s room. He told me in detail whatever he knew. Last night the PM had summoned him and Prof. D.P. Dhar to her house at 10 p.m. Devkant Barooah and Siddharth Shankar Ray were already there. When Prof. Dhar and Sharada reached there, the PM. told them, ‘I have decided to declare an Emergency. The President has agreed. I will inform the Cabinet tomorrow.’ Saying this, she handed over the draft of the Emergency proclamation to Prof. Dhar. He and Sharada were stunned. They had only been summoned in order to be informed and for their advice on the propaganda to follow. She also told them to prepare a draft of her Indira

address to the nation. They were at the PM’s house till about 1 a.m. The Cabinet was to meet at 6 a.m. Not a single minister opposed the Emergency during the cabinet meeting. This is a very serious matter. According to the rules framed under Article 77 of the Constitution, a meeting of the Cabinet was necessary before the President could issue a proclamation of Emergency. But these rules also contain a provision that if the Prime Minister deems it necessary, he or she can take a decision without referring it to Cabinet. But the question here is whether a Cabinet meeting could not have been held to discuss the Emergency. The decision was taken by the PM alone. Why? The other question is: Why did the President accept the PM’s advice’ under these circumstances? He would not have acted unconstitutionally if he had told the PM that he wanted the advice and opinion of the entire cabinet on this matter. This is the first time in my knowledge that the President has taken such an important decision on the advice of the Prime Minister alone. The well-known journalist, D.R. Mankekar’s, book Decline and Fall of Indira Gandhi, provides some additional information complementing Tandon’s account. He notes that even Home Minister Brahmananda Reedy was kept in the dark about the Prime Minister’s decision. “As darkness fell (on June 25)”, Mankekar writes: ‘at about 8.30 pm Mrs. Gandhi accompanied by Siddharth Shankar Ray (who was not even a member of her Cabinet but the Chief Minister of West Bengal) motored to Rashtrapati Bhavan informally to intimate to the President her momentous decision to proclaim an internal emergency. At 11 pm, Reddy was summoned to the Prime Minister’s residence and told about her decision… With the exception of Om Mehta (Reddy’s Deputy in the Home Ministry), a ‘Palace confidante, none of the other Cabinet Ministers knew about it on that night. It was not until 6 o’ clock the next morning that the Cabinet was convened to be informed about the proclamation of Emergency in the country. The Cabinet meeting lasted just 15 minutes. The assembled ministers were shocked out of their wits. After a couple of minutes, Swaran Singh regained balance and tried to seek clarification. The external emergency was already on the statute book, he said. The Prime Minister tersely drew his attention to Jayaprakash Narayan’s speech, in the course of which he had reportedly threatened to gherao her house (to seek her resignation following the Supreme Court’s refusal to grant unconditional stay over the Allahabad High Court’s judgment disqualifying her from membership of Parliament)’.

Justice M.C. Chagla, in “Roses in December said: “She (Indira Gandhi) clung to her office, contrary to all political and democratic propriety. She toyed with the idea for a moment of resigning temporarily till the pliant Supreme Court cleared her of the charges of corruption. But a dictator knows the risk involved in giving up the gadi even temporarily. She therefore took the decision, the most disgraceful and dishonest in India’s history, of declaring an internal Emergency on 26th June 1975. Leaders of the Opposition were arrested at midnight and thousand others were marched off to prison. Press censorship was enforced – again, the most drastic in India’s history – and Presidential orders were issued suspending Articles 14, 21 and 22. The country did not know what had happened, the names of detenus were not published, their whereabouts were not known and the reasons for their detention were not disclosed and access to courts for writ of habeas corpus was barred. Darkness swept over the country and the long and terrible night of 20 months commenced without a flicker of light or hope Chagla further said: “What was the justification for the Emergency? There was complete peace in the country and no internal disturbance, which alone could justify the Emergency. Her Cabinet collegues were not consulted and she got the President to sign the declaration on the dotted line without so much as enquiring as to whether the Constitutional formalities had been complied with.”

Chagla continued
“Her public justification was that there was a conspiracy against her – not the country – and if she was thrown out. The country would be plunged into chaos. She was the deity incarnate, the indispensable leader, who should be worshipped and any criticism against her was sacrilege and treason. The only conspiracy was the demand of the Opposition leaders to her resignation in view of the judgment of the Allahabad High Court. Is it not a democratic right of every Government? But, she was not thinking of democratic rights, she was thinking of her own position as Prime Minister. She was in power and was determined to continue so, democracy or no democracy, and every obstacle to her

power was to be ruthlessly suppressed, and suppressed it was. What we were witnessing was not the rule of law but the rule of terror. The inhumanities practiced, the suffering of innocent people, the barbarities indulged in by the police, the gross abuse of power by ministers and officials often for personal gain, are gradually coming to light; but I do not think the full story has still been told in all its sordidness and brutality. An Oxford Professor David Selbourne (An Eye to India, the Unmasking of a Tyranny) has rightly described these 20 moths as a brutal and ignominious period in the history of the nation.” Dr. L.M. Singhvi in his first golden Jubilee lecture under the auspices of the Supreme Court Bar Association at the Indian Law Institute in the year 1999 said: “Permit me now to temper my commemorative panegyrics with sad and somber note for we must not forget or condone the Himalayan failure of the Supreme Court of India in the habeas corpus case of A.D.M., Jabalpur which put the nation’s diamond bright and diamond hard hope on human right and fundamental rights in an archival glass case. That was when freedom was on trial and our widely admired and much adored Supreme Court failed us. The grim tale tragedy of darkness at noon should never be forgotten. The court developed a strange amnesia schizophrenia in the majority judgment in that case and forgot its legal legacy of enlightened liberalism and in form of many judgments including that in Makhan Singh vs Punjab, (AIR 1964 SC 381) and in form of a case decided by a Special Bench of seven judges on which the Bench could have built. It forgot its mission and its trusteeship in the matter of fundamental rights. It ignored the resonant reverberation of Lord Atkin’s famous dissent in Liversidge vs Anderson (1942 AC 206). It remained for that solitary sentinel of time liberty on the qui vive at that troubled time in our history Mr. Justice H.R. Khanna to hold the flame heroically as did Lord Atkin, but in different society and a different combination of circumstances. That dissenting judgment is the glory of the Supreme Court’s jurisprudence and reminds us of the moving words of Chief Justice Hughes whom Khanna, J. also quoted: “A dissent in a court of last resort….is an appeal to the brooding spirit of the law, to the intelligence of a future date, when a later decision may possibly correct the error in which the dissenting judge believes the Court to have been betrayed.” Let our vigilant custodian never again be betrayed into enormity of such an error so that our mind is without fear and our head is held high. Let our vigilant custodian be a true trustee of that tryst with destiny on

which the constitutional pilgrimage of India embarked forty-nine years ago. (Democracy and Rule of Law: Dr. L.M. Singhvi, pp 219-20) At the world conference convened by Common Wealth Magistrates and Judges Association (1974) in Victoria, Zimbabwe, Dr. L.M. Singhvi elaborated upon the principles of Judicial Accountability in his inaugural address. He said: “Every legal system embodies the principles of judicial accountability but its nature, extent, form and manner in different countries disclose overlapping patterns of diverse proportions and combinations. Broadly speaking there are mainly the following eleven types and aspects of accountability often intertwined with each other: (a) moral accountability of the judge; (b) hierarchical accountability of the judge; (c) accountability to the intellectual constituency and the professional community of judges and lawyers; (d) disciplinary accountability of the judge; (e) civil liability accountability of the judge; (f) accountability of the State to pay damages with or without consequential recovery from the judge; (g) accountability in terms of criminal proceedings and penal sanctions; (h) accountability to the electing, co-opting, appointing or evaluating authority; (i) accountability in terms of removal provisions and procedures; (j) public accountability of the individual judge and of the judiciary as a class; and (k) constitutional and political accountability: (i) in terms of the powers conferred upon the judiciary and duties cast upon it in the legal system; and (ii) in terms of answerability to another branch of the Government. The moral accountability of the judge is primarily a matter of his intimate conscience. In the form of his conscience, a judge is accountable first and foremost to himself. His sense of right and wrong as an individual human being, as a citizen and as a judge guides him spontaneously, monitors his conduct, prevents him from going wrong and censures him when he goes wrong. A judge who puts to sleep that still small voice within him cannot easily be at peace with himself. The sense of moral accountability in a conscientious and enlightened judge makes him his own best watchman. It puts him on guard; it makes him see clearly when some extraneous factor might cloud his perspective or warp his objectivity; it gives him courage when courage is in short supply; and it gives him faith and fortitude even if he is alone in his innermost convictions. The moral conscience of judge is neither some ancient myth nor a magic incantation of words. It is the sense of the judge and the essence of judging. It is rooted in the nature of the judicial function. It is nursed by legal and judicial education and by the tradition and training of the judiciary. It flows from the oath

and the ethos of the judicial office. Written and unwritten rules ethics and judicial custom and usage provide a frame of reference and define standards of integrity which are at the same time meant to secure judicial independence. To judge without affection or ill will and fear or favour, a judge has to cultivate objectivity and detachment as a mental habit and attitude, and he must not judge if he is or appears to be or is likely to be interested in the parties or the subject matter in any way. Every legal system provides for excluding a judge from adjudicating a case on grounds of conflict of interest and incompatibility. Nemo Judex sua causa is an old principle with elaborate modern applications to ensure that justice is done and that justice shall not only be done but shall be seen to be done. (Democracy and Rule of Law: Dr. L.M. Sinhgvi, pp 182-84) Justice Chandrashekhar Dharmadhikari is an embodiment of all the qualities and expectations enumerated by Dr. L.M. Singhvi.

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Second Freedom Struggle
Freedom became one of the beacon lights of my life and it has remained so ever since. Freedom with the passing of years

transcended the mere freedom of my country and embraced freedom of man everywhere and from every sort of trammel---above all, it meant freedom of the human personality, freedom of the mind, freedom of the spirit. This freedom has become the passion of my life and I shall not see it compromised for bread, for security, for prosperity, for the glory of the state or for anything else. Jayaprakash Narayan

In his introduction to the first volume of the Selected Works of Jayaprakash Narayan, its editor, Professor Bimal Prasad, says that J.P. acquired a stature in public life next only to Jawaharlal Nehru’s. That would make him the third most important Indian of his time and century. The fact, that among the three most important persons in the land only one had held office, is itself remarkable, for it rarely happens in other countries. In our history the rishi has always commanded more respect than the raja, the ascetic than the emperor. Gandhi is unique in that among all those who led their people in an anti-colonial struggle, he alone declined to wear the clock of office once freedom had been won. Jayaprakash Narayan chose to emulate his master rather than the man he called his ‘elder brother’. As is well known, Jawaharlal Nehru invited him more than once to join the government and strengthen his hands but J.P. refused. It was widely believed that he would succeed Nehru as Prime Minister. Without doubt he was of that quality. The left wing of the Congress felt disappointed by his reluctance. It felt he had let the team down. The right wing as well as communists taunted him over it, depicting him as a talker and not a doer. But politics had a different meaning for him. He saw it not as the acquisition and exercise of power but as a means of ensuring that power was used for the people’s good and not for harassment. If you are inside a government you have to defend it even when it does wrong, for it is the nature of governments to make their authority felt. As an outsider you can speak out against misuse of authority and miscarriage of justice.

Eventually JP became the conscience of the nation and not its chief constable. People felt that he was criticizing the government not in order to come to power but in defence of freedom – ‘freedom of man everywhere and from every sort of trammel… freedom of the human personality, freedom of the mind, freedom of the spirit.’ The words quoted are from J. P. himself. He announced total retirement from politics but returned to it in order to eject the Congress government first in Gujarat and then at the centre through ‘total revolution’. This gave Indira Gandhi the ostensible reason to proclaim the Emergency. When she was defeated in the general election in 1977 it was largely his earnest pleading and moral authority that resulted in several opposition parties shedding their separate identities and forming a Janata Party. A man who had deep reservations about communal politics had become instrumental in sanitizing the Jan Sangh and giving it a share in power. Through most of 1950s and 1960s, he devoted himself to non-political social service of various Gandhian organizations, occasionally making vital contribution to the efforts to resolve national issues such as in Kashmir and Nagaland. He was disillusioned with Nehru’s Fabian Socialism. He was deeply suspicious of Indira Gandhi’s Garibi Hatao slogan, believing it to be politically motivated gimmick lacking any real conviction. Above all, he could not tolerate the growing stench of corruption in the Congress Governments at the Centre as well as in the States. The public curiosity about the irregularities in the Maruti car project was proving to be uncomfortable for the Prime Minister. The Reserve Bank of India, several other Banks and the then Congress Government in Haryana had bent many rules to favor this questionable project. Later it was revealed that the Officers collecting information on Maruti Project were being watched by the police to ascertain whether it was they who were providing information to the Opposition leaders. Once a reporter asked Jayaprakashji: “The Prime Minister has said that she also wants to fight corruption. What is the difference between your method of combating corruption and hers? His answer was pithy: “She is probably concerned about corruption at the bottom. I want to fight it at the top.” Jayaprakash Narayan was convinced that corruption in high places cannot be fought by pleading and petitioning a callous and collusive Government. While J P was leading one of the many protest marches in Patna on 4

November 1974, the police started an indiscriminate assault on the participants and their leaders, in which he received lathi blows and collapsed to the ground. He was saved, from a more serious injury by Nanaji Deshmukh-a Jan Sangh stalwart, who immediately provided a protective cover for him and took subsequent lathis on himself. “I have never been manhandled like this before. I do not know if Mahatma Gandhi was ever tear-gased. But I had the experience of both for the first time.” said J P On 18 November, 1974 a protest rally was organized under J.P’s leadership at Patna’s Gandhi Maidan, in which nearly a million people participated. The rally was a clear indicator that the J.P. movement was no longer confined to Bihar, but had the potential to change the political agenda of the nation. This was also clear from the new goal of Sampoorna Kranti (total revolution), which J P placed before the country. Balasaheb Deoras, the third Sar Sangh Chalak of the R.S.S. said at a rally in Delhi on 1 December 1974: “J P is a saint, who has come to rescue our society in dark and critical times.” During the course of his movement, J P became convinced that neither nonpolitical student-youth organizations nor any single non-Congress party could fight the menace of corruption and authoritarianism. This realization prompted him to start a dialogue with all the opposition parties to create a common prodemocracy and anti-corruption front. On 6 March J P gave a call for a protest march to Parliament, to mark the completion of one year of the Bihar movement. It was a resounding success. J P had insisted that all the participating political parties, come under one banner, without carrying their individual flags. His speech was stern: “The conditions such as those in India would have easily sparked off a violent revolution in any other country. But here, even after persistent betrayal of the trust of the people by Congress rulers, only peaceful mass action is being staged. This is good for the future of Indian democracy. However, I hope the Prime Minister cares to read the message of this march to Parliament. I say to her: “Mend your ways in time, otherwise the already impatient people will throw you out.” “To a large number of people in the country the Emergency was a watershed, the equivalent of the Quit India Movement. In their view, those who were imprisoned struck the same kind of blow for freedom that the Quit India detainees did, with Jayaprakash Narayan playing the same role that Mahatma Gandhi did when he gave the battle cry of ‘Do

or Die’, and Indira Gandhi letting loose the same kind of leonine violence as the British in 1942. Towards the end of 1976, Indira Gandhi began to realize that she was getting increasingly isolated. The Emergency Rule, she knew could not be sustained indefinitely. The term of the fifth Lok Sabha had already ended in mid 1976. Through a constitutional amendment, the Prime Minister had the life of the Lok Sabha extended by one year, allowing herself to rule by decree till the end of 1977. She had three options: (a) To further prolong the Emergency Rule and also the term of Parliament beyond 1977; (b) To hold fresh Parliamentary elections in conditions of the Emergency; and (c) Relax some of the harsh provisions of the Emergency, release political opponents from jail, hold Parliamentary elections quickly, get re-elected and continue the authoritarian rule in a new form. She reposed her confidence in the last option, reckoning that since the opposition parties were out of action since mid-1975, she would easily romp home, if she held elections in early 1977. Like all dictators, she allowed herself to be swayed by the relentless propaganda being carried out by her own Government-controlled media about the success of her 20 point programme, to which Sanjay Gandhi had added his 5-point programme. Her sense of invincibility was further boosted by the coterie of yes-men, she had surrounded herself with. The Indian Express carried a lead story on 6 January that the Lok Sabha polls are likely to be held by March end or April beginning and that a formal announcement to this effect may be made on the opening day of Parliament’s next monsoon session. Sure enough, two days later, on 18 January 1977, Prime Minister Indira Gandhi announced the dissolution of Lok Sabha. Political developments in the country moved at a lighting speed thereafter. On the day of the announcement of fresh elections, Jayaprakash Narayan declared the formation of Janta Party and named a 28 member national Executive Committee with Morarjee Desai as its Chairman and Charan Singh as Vice Chairman. Its members were drawn from the four constituent parties namely Jan Sangh, Congress (O), Socialist party and Lok Dal-which had merged to give birth to new party. The birth of Janta Party electrified political situation in the country. It was as if a colossal and benign force was releasing India from 20 months tyranny. Even though elections were several weeks away, and the people were yet to give their verdict on the Emergency, there was a sense of the spirit of victory of

democracy over dictatorship in the air. India, as if, was standing at the cusp of dramatic transformation, denoting the end of an era and the beginning of a new one, something that could be compared only to the epochal transition that India experienced in 1947. Surely, a Second Freedom Struggle had been won in India. (My Country My Life: L. K. Advani, pp. 262) “J.P. spoke at Patna, Calcutta, Bombay, Chandigarh, Hyderabad, Indore, Pune and Ratlam. Everywhere he warned the audience that this is the last free elections if the Congress is voted back to power then nineteen months of tyranny shall become nineteen years of terror”. He further warned that this election might be their last chance to choose between democracy and dictatorship. The 1977 Lok Sabha poll was nothing short of a silent and peaceful ballotbox revolution carried out by India’s humble voters. One of the greatest lessons in democracy is: Never underestimate the common people’s political understanding or their commitment to democracy. India’s voters may be illiterate or semi-illiterate; sometimes they may even be swayed by caste, and religious considerations, but when it is time to defend big ideals like democracy, or freedom, the multitudes rise like a mighty, united force. This was resoundingly proved when the results of elections were declared on 20 March 1977. The Congress was defeated for the first time since independence. The Janta Party won a clear majority by securing 295 seats in a House of 542 seats. The Congress tally was abysmal- only 154 seats. For ruling party, the defeat became more humiliating when news spread that Indira Gandhi was defeated in Rai Bareli and her son Sanjay was trounced in Amethi, both being their own constituencies. Morarjee Desai became the first non-congress Prime Minister of India. Emergency was officially lifted on 23 March 1977. With that ended the darkest period in the history of the Indian Republic. The greatest responsibility of ensuring unity, cohesion and consensus in the Janta Party rested on the frail shoulders of Jayaprakash Narayan. Detention during the Emergency had taken its toll on his health. His kidneys had failed and he was saved by a timely operation at Jaslok Hospital of Bombay in November 1976. He was on dialysis for the rest of his life. Even in the critical condition, he had put his moral weight behind the Janta Party’s election campaign. He was convalescing in Bombay when the election results were announced. Although he was the principal architect of the Janta Party’s triumph, he was never in the race for power. Like Mahatma Gandhi, whose ardent follower he was, Jayaprakash

Narayan had renounced power politics. This had further enhanced his moral stature in the country. He was received as “Second Mahatma leading India’s Second Freedom Struggle. However, he had to endure the agony of seeing the Janta Party disintegrate but he did not live to see it defeated by the very same Indira Gandhi. “One thing Indira Gandhi did achieve by the Emergency: she ensured that no future Prime Minister would be tempted to resort to it.”

Tributes
L.K. Advani says: “J P was the greatest among the tens of thousands of prodemocracy activists who were arrested when the flame of democracy was extinguished by Indira Gandhi. In detention, his health suffered badly, but, in spite of his weak body and failing kidney, he had continued his crusade and succeeded in giving the Emergency regime a befitting burial. Finally, this conscious keeper of the nation breathed his last on 8 October 1979.” Perhaps the most moving tribute to JP was paid by Shri Atal Behari Bajpayee: “J P was not merely the name of one person; it symbolized humanity. When one remembered him, two pictures came to one’s mind. One was reminded of Bhishma Pitamaha lying on a bed of arrows. There was only one difference between Bhishma Pitamaha and JP; while the former fought for the Kauravas in the Mahabharata battle, the later fought for justice. The second picture was one of Christ on the Cross and JP’s life reminded one of Christ’s sacrifice.”

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3 Cs Cost, Corruption and Caste
Senior lawyer Shri Fali Nariman, in his speech, on the occasion of 125th Anniversary of Bombay High Court, said that judiciary is suffering from three C’s, that is Cost, Corruption and Caste. This appears to be a very telling and bold but unfortunately a true statement.

Delay (Cost)
As Justice Dharmadhikari sat on the Bench, the one thought that came to his mind was the delay in the disposal of cases. This thought had been upper most in his mind throughout his judicial career. This feeling, made him at times, some what impatient, but he saw to it that no good point was ever lost in his court and no bad point ever won. Delay in disposal of cases is a standing stigma on our judicial system. Not only ordinary cases but even those which call for prompt and speedy disposal linger on in courts for years. This understandably creates disenchantment and causes anguish to all those who knock at the doors of the court to seek prompt relief. Justice delayed in a large number of cases is as good or bad as justice denied. Where is the justice if a young wife or husband seeks matrimonial relief and gets it after ten or fifteen years by which time the period of prime youth

becomes a matter of the past? Of what avail is the acquittal of a person who has to spend years as an under-trial prisoner in jail? Instances like these can be multiplied ad infinitum. “The greatest drawback of the administration of justice in India is Delay. There are inordinate delays in the disposal of cases. We as a nation have some fine qualities, but a sense of the value of time is not one of them. Perhaps there are historical reasons for our relaxed attitude to time. Ancient India had evolved the concepts of eternity and infinity. So what does it matter if thirty years are wasted in a litigation against the backdrop of eternity? Further we believe in reincarnation. What does it matter if you waste this life? You will have many more lives in which to make good.” (We the Nation: Nani Palkhivala, pp 215-16) Shri Soli Sorabjee says: “There is no limit to the stratagems’ employed to delay and defeat a just claim and tire out an honest litigant. There is no trace of any compunction about telling a deliberate lie to the court for getting an adjournment for personal convenience or to further harass the opposite side. It is a measure of steep decline in professional ethics that today it is almost universally believed that a lawyer is a liar….Dr Johnson’s famous defense of the lawyer to Boswell would appear fanciful in the present context. Worse, Dick, the butcher’s resolve in Shakespear’s Henry the Sixth, ‘The first thing we do, let us kill all the lawyers,’ may not remain a theatrical flourish for long.” Centenary Silver Jubilee of Bombay High Court, pp -114-15) Do you know what Pol Pot did in Kampuchia in his dictatorial barbarity was to wipe out all lawyers and many judges. They had a legal system but all the lawyers being bourgeois, according to Pol Pot were wiped out all together. The administration of justice has become so obsolescent that most people regard the law as an enemy rather than as a friend. The law may not be an ass but it is certainly a snail; the operation of our legal system is not merely slow but is susceptible to the most shameless delaying tactics, and resort to the courts has become a costly lottery which takes years in the drawing. (We the People: Nani Palkhivala, p 354) The Guinness Book of World Records gives its longevity award to a suit that was filed in Pune in 1205 A.D. and was not settled till 1966. When editors of Guinness made an inquiry from the officials in New Delhi, they were told that there was no record of this extraordinary litigation, but it was admitted that in our High Courts we have more than 500000 cases pending which are ten to thirty years old. If litigations were to be included in the Olympics, India would be (Post

certain of winning at least one gold medal. In the present adversary judicial system one side always wants to delay because that helps to protect and preserve his vested interests. Today the Court is not for the poor. One often hears the rich saying to the poor that he would drag him to the Court and torture him - Tujhe Adalat Men Khich Kar Tang Karunga. Rich people some times use the court as their means to achieve their goal to harass the opponents. “Therefore” Justice Dharmadhikari says, “it is necessary to have participatory judicial system instead of adversary judiciary system.” The problem of delay and huge arrears scares all and unless the judges and the lawyers, can do something about it by putting their heads together, the whole judicial system would get crushed under the weight of it. For, the patience of the people have been taken for granted. The need today is for some effective and radical measures consistent with demands of justice, equity and fair-play. (Law, Men of Law and Education: Justice S.R. Khanna, p 19)

Ray of Hope
The Chief Justice of India Justice S.H.Kapadia at a meeting in Delhi said: “For years, I have been listening speaker after speaker in Vigyan Bhavan slamming the judiciary for mounting arrears. They must know filing a case today becomes a pending case tomorrow. But is that not an arrear? Statistics reveal that 60 % of the cases pending in trial courts were less than one year old. So if we take a realistic look at the arrears and exclude those pending for just one year, then the arrears are only one crore cases.” Justice Kapadia, however, conceded that arrears of one crore cases were not a small figure and unveiled a three-track mechanism to deal with them. Track one would comprise “sticky cases” involving complex questions of law; Track two would include “subversive” cases, where one of the parties always tries to delay the hearing; Track three cases would be those which have been delayed due to delay in serving of notices. Smt. Pratibha Patil, the President of India, at the same meeting took the account of Chief Justice of India’s method of calculating statistics and said: “Now, as the Chief Justice of India has talked about the difference between arrears and pending cases (which she quoted as

40 lakhs cases in High Courts and 270 lakhs cases in subordinate courts), we will have to review these figures.” But she went on to say: “While a litigant has one life, litigation transcends generations. Towards curtailing waste of precious time, we must reengineer and simplify court procedures, which otherwise tend to make litigations unduly slow. Frequent demands and liberal grant of adjournments and filing multiple suits make judicial productivity sluggish. Timely pronouncement of judgments and quick execution of decrees would be beneficial.”

Three-tyre Case Management
The Law Ministry of the Government of India headed by Veerappa Moily proposed an enactment of law under which every citizen of the country will have time bound justice ensuring right to acquittal if trial does not commence within a specified period. The ministry is also planning to propose that the courts deal with similar cases as bunch matters and also fix a tailored time-table, taking into account the claims of the parties and time required to settle each law point. A three-tyre case management system which is in offing will provide for increase in the jurisdiction of small claims courts, new fasttrack courts for certain types of cases and a new improved multi-track system for other types of cases. In case the proposed measures are implemented effectively, the delay will be considerably reduced. Earlier, the Chief justice of India, in his address on 12 th December 2009 at Banglore said: “The people will revolt if the serious note of the delay occurring in the delivery of judgment is not taken. As a result, the whole judicial system will collapse.” The Chief Justice further said: “People have faith in judiciary. They feel that if not today, some day they will get justice. But the million dollar question is how long they should wait? The State Governments do not seem to be taking initiative in this respect. Giving the example of China, he said that in China, only 20 % disputes reach the courts. 80 % disputes are settled through negotiations and arbitrations. In India,

although the exact figure is not available but not more than 5 % disputes are settled through negotiations and arbitrations.” People take law into their own hands, because of the inordinate delay. To get quick justice, people take shelter of goondas/mafias, who somewhere in the chawls hear the disputes and give their verdict, which is instantly accepted as it takes place in one sitting. Such Darbars of mafias are gaining momentum. Justice Dharmadhikari says: “Today, judiciary is criticized from all quarters. I welcome this criticism. Because people criticize only those from whom they have hopes and expectations. There is no use of criticizing the system, which is hopeless and beyond repair. It is true that there is delay in getting justice. Are the courts alone responsible for delay? In Adversary system of judiciary, one party always wants delay. In the disputes between employer and employees, the employer wants delay. In the dispute between house owner and tenant, the tenant wants delay. The various methods are invented for this with the knowledge of lawyers. “We do not want to build up social structure based on justice, although the constitution has made certain provisions in this respect. We do not want to set up judiciary, which has roots in the soil of land. The works of the men in power and established ones are easily done outside the courts. So they find courts hindrance in their way. “The cases which are filed or are pending in the Supreme Court and High Courts, the Government is invariably one of the parties. The largest number of cases are against the Government. The Government party is responsible for delay. But the same is in the forefront to criticize the judiciary. The Government attitude is: “We will not do anything. We will not make the appointments of judges well in time. We will not bring desired changes in the judiciary. We will not provide adequate facilities. We will not extend cooperation and assistance and yet we will mount one-sided criticism and adopt all sorts of avenues to malign/spoil the image of the judiciary. We will create an atmosphere to show that the judiciary is a blocked in the way of development. The Government policy seems to place the judiciary in the dock.” Justice Dharmadhikari is emphatic in saying that the courts are used by wealthy people as a weapon of exploitation. Four Ms. Money,

Muscle, Mafia and Media are more powerful than the rule of law. He believes that unless we have a participatory, decentralized, speedy and affordable judicial system, right from the grass root level, a poor man can never get justice in the true sense of the term. A Bench consisting of Justice G.S. Singhvi and Justice A.K. Ganguly of the Supreme Court in January 2011 said: “No Government wants strong Judiciary. Budgetary allocation to judiciary is less than one percent by the Government. This shows their commitment towards judiciary. The remark from the bench came when it was told that only one witness has been examined in the last four years in the Amarsingh phone tapping case, which has been marred by adjournments. The bench further said: “The system has already become sick. What can be the expectations of the common man for the speedy justice? Even in the Supreme Court a Special Leave Petition takes eight years to reach final hearing. “We all give sermons. We go to National Judicial Academy and give lectures to judicial officers asking them to speed up disposal of cases. But where is the infrastructure? They are already under heavy burden. There are only lectures, committees and commissions, but no solutions.” It is said that in the tenth Five Year Plan (2002-2007), the allocation for judiciary was Rs. 700 crores, which was 0.07 %. Most of the States provide for less than one percent of the budgetary allocations and have not implemented the Supreme Court approved salary hike for judicial officers. Seven years ago the Chief Justice Justice R.C.Lahoti said: “The Governments are under no obligation to provide an adequate machinery for justice, to appoint more judges and to give them better emoluments and facilities, to build more court houses, to enact better laws, to devise better dispute resolution procedures, and to administer more effectively rather than to blame lawyers and judges for the increase of litigation.” (Times of India: 12th June 2011) Justice Dharmadhikari says: “There is a general clamor about the procedural delays. Improvement in the procedure can be of two types. (1) Improvement in the existing procedure and (2) Better utilization of the existing procedure. A considerable amount of judicial time is wasted in granting

adjournments. It is also wasted in ascertaining the preliminary requirements, such as filing of pleadings, affidavits of documents, inspection, etc. This judicial time can be saved for the judicial work if the correct procedure is followed eliminating or reducing such as application for adjournment etc. In the subordinate courts procedure will have to be evolved for ascertaining as to what time will be required for hearing the main matters so that the boards can be arranged accordingly. Many a times much of the time is consumed by the interlocutory application and suit never reaches for final hearing or adjudication. For this procedural law will have to be suitably amended. But this will not be the only solution. So far as we are concerned we will have to find out as to whether the existing procedure can also be correctly utilized for reducing the delays. For example the rule relating to the pleading can be strictly enforced and the lawyers should be trained in the art of pleading so that it becomes clear from the pleading as to which facts are admitted, which facts are denied etc. Lawyers can be compelled to follow the procedure of discoveries and inspection of the documents. They can also be asked to deliver interrogatories in order to eliminate unnecessary evidence on the points which are not at issue. We are forgetting that under the procedural law there is something like a settling date. “Further so as to relieve the pressure on the courts the extra judicial forums can be set up for conciliation or settlement of the disputes, though they are not substitute for the regular courts. They might provide machinery for mediation which may be usefully availed of by the disputants, which will reduce the pressure of the court work. In matrimonial matters conciliation between the parties is made a must but the said procedure, many a times is followed as mere formality. In this context a reference can also be made to the provisions of the Maharashtra State Legal Aid and Advice Scheme which provide for constitution of conciliation cell. Rule 9 of the said scheme contemplates that a court or authority before whom any legal proceeding is pending may, if it so thinks fit, refer the disputes forming subject matter of the legal proceedings, to the relevant conciliation cell for the purpose of bringing about settlement between the parties. This procedure is also hardly followed. Justice Chandrashekhar Dharmadhikari further says: “To improve judicial system we will have to think of establishing Arbitration Boards, which a common man can afford. It will have to be accepted as principle that before a litigant is permitted to go to the court of law he must approach the Arbitration Board for settlement of the dispute. Therefore some pre-litigation machinery is a must, if

we really want to solve the problem of arrears and lesson the burden on the judiciary. Hence the conciliation and Arbitration should occupy special place in our judicial system. In this context the Government which is a welfare State should become a model and should try to settle disputes between the Government and the citizens by constituting a special cell for that purpose at the Government level. Soli Sorabjee an eminent lawyer says: “If the raison d’ etre, the very etre, purpose of the courts, Judges and lawyers is to provide speedy, effective and inexpensive justice, then the system has miserably failed to deliver the goods. Indeed it has started cracking and the cracks are pretty visible.” Soli Sorabjee in his key note address delivered on the occasion of the celebrations of 125 years of the Bombay High Court said: “The time has long past for compiling statistics of arrears in Courts and setting up Commissions to go into this problem. A parallel extra legal or paralegal agency, whose first tenet is contempt for the rule of law and judicial process has been set up and is doing well. It is notorious fact that the common man has become utterly cynical, almost contemptuous about Courts and administration of justice. He prefers to seek justice by taking the law in his own hands or relying upon socialized agencies which promise prompt results by recourse to extra-legal means. Forcibly dispossession of persons from premises has become a sophisticated art. The reason is the unbearable burden of litigation, the excruciating delays, the crushing cost and the general harassment involved in ‘going a–lawing.” Soli Sorabjee further said: “Two instances come to my mind. The owner of a flat in Bombay had gone abroad for two years for further studies. During the period of his absence from India he had obliged a friend of his by permitting him to stay in his flat on the clear understanding that when he returned to India he would have the flat for his own occupation. He did not charge any amount to his friend except out of pocket expenses for maintenance of the flat. After completing his course of studies he returned to Bombay. He had given previous intimation of his return to his friend. On his return he was assured by his friend that he would vacate the flat in a couple of weeks. This couple of weeks became a couple of months. In the meanwhile the owner of the flat stayed for the first two weeks with the members of his family. Then he stayed in a hotel. Thereafter he stayed in a sanatorium. After that he consulted me about the legal prospects of success. I told him that he had a clear-cut case and there would be no difficulty in obtaining a decree for ejectment. Then he asked me the question: How long will it

take? I told him, optimistically speaking it would be at least a couple of years. Then he left. After sometime I met him and asked him what he had done in the matter. He said that he had no confidence in the legal system and was not at all sure whether the whole thing would be over in two years. Since the other person had behaved in a dishonorable fashion he had every moral right to occupy the flat which he did forcibly leaving the other person to take legal proceedings which could go on at a leisurely pace. Mind you, this person was a law-abiding citizen but the enormity of the situation was too much for him to bear. “The next instance took place in Delhi. What happened here was that my friend, whom I shall refer to as ‘A’ allowed a friend of his to occupy his son’s flat as a gesture of friendship. The licensee thereafter went abroad and has been abroad for two years. Despite repeated requests he has not vacated. The flat is lying vacant and A’s son who wants to come and settle down in Delhi and get married is unable to do so. Whenever he comes to Delhi he has to stay with his friends. ‘A’ also decided not to take recourse to usual legal remedies because of delays, uncertainties and took law in his own hands. These two instances are symptomatic of the ineffectiveness of the system and are ominous of the state of future events.” Sorabjee concludes: “Delay in the disposal of criminal appeals and the continued incarceration of the appellants because the Court has no time to hear their appeals is a hideous mockery of justice. When the person succeeds how is he to be compensated for the slice of his life taken away from him? The monstrosity of the situation is evident yet we have got so used to it so as to become apathetic and indifferent.” (Post Centenary Silver Jubilee of Bombay High Court, pp 113-14) Speaking of litigation, Smt. Leila Seth writes: “Shaw Wallace & Co. at one time owed Primo (her husband) a substantial sum of money and were not paying, despite repeated reminders. He was angry and wanted to sue them. I begged him to settle. I said: ‘Take half, take one-third, even take one-fifth, but settle. You have a good case, but if you take them to court, you certainly won’t get anything now; if you have grandchildren, they might. Apart from that, you will lose sleep and get high blood pressure when you hear lies being treated as truth and frivolous adjournments being taken by the other side to delay the matter. I know that I will have to bear the brunt of it, as you will keep telling me what a frustrating and useless exercise the whole process is’. I badgered him to settle and settle he did. It was over in a few days and, though he got a mere fifth of

what he should have, he had it to call his own. It was practical, ‘tatkaal’ justice-if justice-if very imperfect.” Smt. Seth further writes: “I often think about how litigation or the threat of litigation affects people. It takes over one’s whole life. The fear of the lawyers and the courts, the delay, the tension when you have to appear and-all too often-the complete lack of reasonableness of the prosecutor or opponent is horrible realities. It is time-consuming, expensive and never-racking. And the result is so unpredictable. You can be called upon to pay damages even for something for which you are not responsible. If that is what I faced as a judge owing to an obdurate bureaucracy, if that was what I, as a Judge, advised my husband to do rather than battle an obstructive large company, what must be the lot of the common man, who is totally bewildered by the language and trappings of the law, has no access to the levers of power or even the ears of the influential, has little to fall back on during the years of expense and delay, and lacks even the knowledge of what he should do or to whom he should go in order to redress an injustice or assert a just claim.” (On Balance: Leila Seth pp, 349) As a common man, I think, we are all responsible for this. Khalil Gibran had said: “As a single Leaf turns not yellow but with the silent knowledge of whole tree.” This is true about our judicial system. As a common man, I fail to understand why Judges speak about changing the system only after retirement. Are not those who speak about the system, not responsible for this malady? And what they are doing to improve the system? It is easy to speak and advice, because advice is meant for others only.

Corruption
Justice Dharmadhikari says: “The corruption existing in the Courts cannot be justified by clever arguments. There is a dictum in Sanskrit: vU; {ks=s d`ra ikaie iq.;{ks=s fou’;fr iq.;{ks=s d`ra ikaie otzysiks “fo";rh AA Annya Kshetra Kratam Papam Punnya Kshetre Vinayashati Punnya Kshetre Kratam Papam Vajralepi Bharishyati.

Means: “If you commit a sin anywhere else, it can be washed in the holy land, but if you commit sin in the holy land itself, it is stuck diamond-hard-where will you wash it?”

Justice Dharamadhikari further says: “The question of corruption is not limited to lower courts only, but the higher courts are also infected by it and the very prestige of judiciary is vanished into thin air. It is said that corruption is a global phenomenon. If the very spring and the soul is defiled how can we expect pure water from it? Judges connive at corruption by accepting it as inevitable evil. They say that the corruption is present in social life, it is trickling in judiciary too. To say such a thing is to shirk responsibility.” Justice Dharmadhikari is profoundly grieved to see that corruption has become a fashion and our conscience has become insensitive. With regard to the appointments in the judiciary Dharmadhikari says: “While making appointments in the judiciary, we do not appoint any Tom, Dick or Harry. It is said that these appointments are made by selecting persons from the cream of society. The milk gets spoiled but the cream rarely gets spoiled. It is earnestly believed that a Judge is the ideal before society. If his hands are unclean, where can society look to find an ideal? If corruption is excusable, because it has become very common and if such an impression is created, then the money earned by corrupt means could be treated as white. It is indeed a matter of great frustration that no one seems to give any serious thought to it.” Another argument is put forth that good and capable people are not attracted to judiciary because the salary paid to Judges is too low for decent standard of living. This gives scope for corruption. It is quite surprising, painful and unjust to say that in a country where 83 crores and 60 lakhs that is 87 percent people live below poverty line, 27 percent of which live under the sun wherever they find place, the salaries of Judges should be considered low. Today a High Court Judge gets about, Rs. 100000/- per month (inclusive of allowances). Besides this, a chauffeur driven car is provided free. Expenditure to the tune of 250 liters of petrol is borne by the government. Rent free furnished bungalow admeasuring 3200 sft. is provided. Expenses on telephone, electricity, water, medicine, health service are also at government cost. T.V. computer, lap top are provided by the government. Twice a year traveling expenses by air for his entire family are borne by government. This is termed as leave travel concession. There are Judges, spending more than their yearly basic salary, by charging additional traveling allowances, through this leave travel concession. Added to this, servants are available at government cost. If all this is calculated at market rate, the figure will reach around Rs. 2,50,000 per month. “If this is considered as low income,”

Justice Dharmadhikari says, “we will have to think about the integrity of those who enter judiciary keeping an eye on the salary. “ In a recent annual meeting of the Judges of the Supreme Court and Chief Justices of the High Courts, two main demands were made, one of them was increase in salary to the extent of Rs. three lakhs per month and increase in the retirement age. This is mind boggling. In earlier days, the salary of the High Court Judge was between Rs. 3000 to Rs 4000 per month. The car was shared by 2-3 Judges, which was their own. The other facilities which are provided today were not then available. With all this, they laid the foundation of judiciary on sound footing. Their judgments were considered as classic in the English literature. They were conscious that they are occupying the Chairs once occupied by King Vikramaditya and Ramshastri Prabhune and tried their best to come up to their level or stature. During discussion relating to the Federal Court of India, Gandhiji observed before the Federal Structure Committee, “so far as the salary is concerned, you will laugh, naturally, but the Congress believes that it is an impossible thing for us who, in terms of wealth, are a nation of dwarfs, to vie with the British Government, which represent today giants in wealth. India, whose average income is 3 shillings per day, can ill afford to pay the high salaries that are commanded here. I feel that it is a thing which we will have to unlearn if we are going to have a voluntary rule in India. It is very well so long the British bayonet is there to squeeze out of the poor people, taxes to pay the salaries of Rs. 10, 000 a month, Rs.5, 000 a month and Rs. 20, 000 a month”. When the question was raised that competent people will not be available on low salaries, Gandhiji said: ‘I do not consider that my country has sunk so low that it will not be able to produce sufficient men who will live somewhat in correspondence with the lives of millions and still serve India nobly, truly and well. I do not believe for one moment that legal talent has to be bought, if it is to remain honest.” In this connection Mahatma Gandhi made a mention of Motilal Nehru, Chittaranjan Das, Manmohan Ghosh, Badruddin Tyabji and said that these persons earning lakhs of rupees, for the sake of National Work, honestly and without the least expectation, offered their services. At the call given by Gandhiji, when these senior lawyers earning lakhs of rupees left practice and participated in freedom movement, what did they get except imprisonment and distressing and miserable conditions?

Gandhiji could never believe that good men can be purchased with money, nor money can make people good. Referring to the colossal expenditure on courts, Gandhiji observed about the entire system of judiciary: “There is something sinful in the system. It is an expensive luxury.” Here is an observation from Oscar Wilde – “Cynic is a person who knows the price of everything and value of nothing”. Justice Dharmadhikari says: “I can tell you with my own experience, that the salary and perquisites are adequate. Of course only if you don’t have luxurious habits: addiction for races, squandering money on drinks or holding parties in clubs or five star hotels. It would be inhuman if all these luxuries and habits are gratified only at public and government money. There are two words ‘need’ and ‘greed’. Salary is for fulfillment of need. Greed is never satisfied.” Smt. Leila Seth in her autobiography, “On Balance” writes: “…….There has for some time past been a nagging feeling that corruption is slowly creeping into the higher judiciary. Though it is difficult to find absolute proof, circumstantial evidence is often clinching. But the process of the removal of a Judge by something akin to impeachment is so difficult that it has just not happened. “Recently I saw on the front page of a number of newspapers the picture of a Delhi High Court Judge (who had just resigned) being arrested, and read that the Judge’s files had been found in the house of a private person, I was shocked. I read that his house had been searched and was horrified when I discovered that it was the very house that had been allocated to me when I was a member of the Law Commission. I was also stunned when I learnt that a Judges’ committee had found that another Judge, Mr. Justice Arun Madan, had been soliciting a woman doctor in return for a judicial decision in her favor. Though everything was not perfect at the time that I was a Judge, this was certainly a far cry from those days. “The cases appear to me to be the result of the faulty system of appointments. If there were transparency in the process, Mr Madan certainly would not have been appointed. The Bar as a whole was aware of Mr. Madan’s misdoings and misconduct as a lawyer, and brought it to the notice of the judiciary, but powerful connections prevailed and he was duly appointed. What is devastating is that a few rotten apples are spoiling the whole image of an otherwise basically honest and fair higher judiciary. I hope that the National Judicial Commission, if and when it comes into existence, will be more

transparent in its process of selection. I think it will be a better method of appointing a Judge, rather than leaving it entirely to the senior most Judges and the politicians. But the constitution of the commission must be a matter of careful consideration: “Who will appoint the appointers?” “There are many kinds of corruption, and the Bar is no less to blame. When I started off as a lawyer in Patna, a number of sons, brothers, nephews and other relatives of Judges were also practicing there. I heard people talking about ‘Uncle Practice’ and ‘Lal Jhanda’. I wondered what all this was about. I learnt that, since a son was not permitted to practice in his father’s court, if you did not want the matter to be heard by that court, you briefed the son and thus stopped the matter from going before the father; you had put out a warning ‘Red Flag’. This misuse of a rule that had been incorporated to prevent partisan decisions was apparently quite prevalent, and some young lawyers even managed to make a living out of it. It was also rumoured that certain Judges favoured the sons of their brother Judges, and so the ‘Uncle Practice’ thrived.” Smt. Leila Seth suggests that both the Bar and the Bench have to make a conscious and consistent effort to change their ways, and to wipe out corruption. It is the impartiality with which a matter is heard and decided that is the foundation of justice. (On Balance: Leila Seth, PP 409-411) justice. A sad incident is quoted by Justice V.R. Krishna Iyer, while describing how he refused to budge an inch though tremendous pressure was sought to be built upon him, by none else than the then Law Minister late Shri Gokhale who himself has had a brief stint as a Judge in Bombay, to pass an absolute order to stay on the judgment of Allahbad High Court in the case of Indira Gandi Vs. Raj Narain. In the words of Justice Krishna Iyer himself: “When Indira Gandhi found the High Court of Allahabad holding her election void, she came up in an appeal to the Supreme Court. Unless an absolute stay of the order voiding her election was secured, she might lose her membership of Parliament and, perhaps, also her high office as Prime Minister. So the then Minister for Law and Justice Mr. H.R. Gokhale moved an interlocutory application for an absolute ad interim stay. I was the Vacation Judge but declined to receive him at my residence and directed him to file the petition before the Registry. This was a surprise to him because these days judges oblige influential and powerful litigants by hearing them even at night or on holidays – a privilege which the poor

do not enjoy. Access to justice is sometimes not equal. But on my declining to receive him with a stay petition, the Law Minister filed his petition in the formal way in the court. I had heard the case the next day and eminent counsel on both sides made powerful presentations. I declined absolute stay but granted conditional stay of the order of the High Court.” Justice Iyer gave lengthy reasons for the step he took. Alas! The same night a national emergency, extraordinary for our democracy, was promulgated. Justice V.R. Krishna Iyer also narrated the following incident which underlines a lesson to be learnt: “By way of a distressing deviation, I may mention an anecdote of a few years ago. A vacation Judge was telephoned by an advocate from a five star hotel in Delhi. He mentioned that he was the son of the then Chief Justice and wished to call on the vacation Judge. Naturally, since the caller was an advocate, and on top of it, the son of the Chief Justice, the vacation Judge allowed him to call on him. The ‘gentleman’ turned up with another person and unblushingly told the vacation Judge that his companion had a case that day on the list of the vacation Judge. He wanted a ‘small’ favor of an ‘interim stay’. The Judge was stunned and politely told the two men to leave the house. Later, when the Chief Justice came back to Delhi after the vacation, the victim Judge reported to him about the visit of his son with a client and his ‘prayer’ for a stay in a pending case made at the home of the Judge. The Chief Justice was not disturbed but dismissed the matter as of little consequence. ‘After all, he only wanted an interim stay’, said the Chief Justice, ‘and not a final decision’. This incident reveals the grave dangers of personal visits to judges’ residences under innocent pretexts. This is the way functional felony creeps into the judiciary. A swallow does not make a summer may be, but deviances once condoned become inundations resulting in credibility collapse of the institution.” Dr Manmohan Singh, the Prime Minister of India at a recent conference of the Chief Ministers and Chief Justices of the States held at Delhi said: “Corruption is another challenge that we face both in the Government and the Judiciary.” Supporting a call from the Chief Justice of India to set up designated Special Courts for trying cases under the Prevention of Corruption Act, Dr. Manmohan

Sing said: “I agree that there is urgent need to do so. This will instill greater confidence in our justice delivery system at home and abroad.” Justice Dharmadhikari says: “Sins of a person can be washed in the holy Ganges. But if the Ganges itself becomes polluted, where can one wash the sins?” Recently Shri Shanti Bhushan, the former Law Minister of India has challenged the appointment of Justice Ashok Kumar, who was elevated as permanent Judge of the Madras High Court in February 2007. Justice Kumar had served as an additional Judge of the Madras High Court. It was alleged by Shanti Bhushan that in this case too the Chief Justice did not consult the rest of the Judges of the Apex Court Collegium. Justice Kumar is said to have been appointed by the Union Government disregarding the procedure as set out in their Office Memorandum (O.M.) highlighted in February 2007, when he was elevated as a permanent Judge of the Madras High Court-the two senior Judges of the Apex Court, Justice B.N. Agrawal and Ashok Bhan, were never consulted. It is also alleged that a large number of High Court Judges were made permanent Judges without the consultation of the Apex Court and their appointments were sought to be quashed. However, the Supreme Court said that they will look into future cases only and not the past cases. Judges are made permanent even without consulting the Collegium. As a matter of fact that is the best stage when an unworthy and incompetent Judge could be weeded out, so that permanent damage could be avoided. The U.P. Police recently sought permission of the Chief Justice of India for enquiry against one Supreme Court Judge, four High Court Judges and 25 District Judges for charges of corruption. This speaks for where the image of judiciary is going. Political friendship has become a convenient short cut, almost a password for achieving personal ambitions like appointments, transfers and promotions. Why read Seervai on the Constitution, if an out-of-court friendship with some one in the corridors of power, can fetch you a seat from where you can deliver sermons on the Constitution without knowing what that great document means and contains? (Extract from the speech of Former Chief Justice of India Justice Y.V. Chandrachud) In his address at the Golden Jubilee celebration of Jammu and Kashmir High Court way back on May 25, 1978, Justice S.R. Khanna said: “….We have for long taken for granted the respect of the people. There is astir today a spirit of skepticism and so some extent of iconoclasm.

There is much great awareness of rights and the people are acquiring a new consciousness of the strong points and short comings of the different human institutions. Many of us in the world of law have so far been unduly allergic to criticism. There is, perhaps need today for change in our mental attitude. If weaknesses have crept into the system, they cannot be wishfully brushed under the carpet nor can criticism be silenced even by threats of contempt. Contempt of court is no answer to genuine criticism of the functioning of our courts. Reverence for the courts, in order to be real and spontaneous, has to be earned through the test of truth. If weaknesses and drawbacks have crept into the system, they have to be set right.” ( Law, Men of Law and Education: S.R. Khanna, p27) Powers that be will have to give serious thought to what Justice S.R. Khanna said before it becomes too late. The rot in public life began after the death of Lal Bahadur Shastri and has been increasing at a galloping rate. It has spread so far as to contaminate the higher judiciary which is the soul of any democracy. Judges are the indispensable servants of society: without them, its most fundamental equilibrium cannot be maintained. Evil is more infectious than AIDS and, if unchecked, progresses with an inevitable momentum of its own. It is but one step from forsaking intellectual integrity to forsaking financial integrity. A Judge who decides wrongly out of motives of self-promotions is no less corrupt than a Judge who decides wrongly out of motives of financial gain. The slide on the inclined plane had been rapid and unmistakable. In the first two decades of our republic it was the compulsion of veracity, not the fear of the law relating to contempt of court, which was responsible for the fact that no charges of corruption were leveled against the judiciary. Now the compulsion of veracity dictates such charges in defiance of the Contempt of Courts Act. The question is – which is the best way of dealing with a corrupt Judge in the higher courts without creating a crisis of public faith in the judiciary? The greatest illusion of our people is their infantile belief in the legal solubility of all problems. In the wise words of Lord Hailsham, the former Lord Chancellor of the UK, “We might do well to remember that in the whole realm of human relations there is no field more vulnerable to corruption, dishonesty, chicanery, and sheer quackery and charlatanism than contested litigation,

criminal and civil, commercial, matrimonial, testamentary, or resulting from personal injury, real, imagined, or invented. We might also do well to consider that few of the safeguards we have achieved against these evils have been achieved by Government interference or by Parliamentary legislation. They have been brought about by the steady application of self-regulatory procedures and disciplines….” (We the Nation: Nani Palkhivala, pp 219-20)

Caste
“After having taken into consideration the experience of the last few years,” Justice Dharmadhikari says: “I am compelled to say that judiciary has been infected with unfair prejudices of caste, creed, language and regionalism. These have spread all over and are tending to spread further. Nobody will say that while appointing the Judges, due consideration should not be given to scheduled castes, scheduled tribes or backward classes. But I call it corruption, if an appointment of a person is made only because he belongs to a particular caste or to a ‘ruling race’ or is “convenient” for persons in power; in spite of dubious merit, character and honesty. By selecting doubtful persons from this class, misunderstanding is being created that there are no honest persons in this class or caste. This is part of wider conspiracy. A religious rabid fanatic had observed that ‘Gandhiji may be religious, may have a noble character and possess virtues, but even a characterless Muslim would always be greater than Gandhi only because he is a Muslim and Gandhi is a Hindu. I am afraid that similar attitude is adopted with reference to caste as well.’ “To select persons, with such extreme prejudices is virtually to destroy the institution itself. The thought to caste, creed or political affiliation or affinity should be totally unacceptable for appointments in judiciary. During the last few years, stress on these considerations has brought about deterioration right from lower courts to the entire system of judiciary. Corruption is now rampant in the sacred precincts of judiciary. Merit has been banished. Such spineless judiciary playing to the tune of those in power and authority can never uphold the moral uprightness of the goodness of justice.” There have been complaints, more frequent of late, that some High Courts when dealing with the subordinate judiciary-nay, that some Judges when even deciding cases-act on the basis of caste, to sub-serve parochial interests. Many years ago Lord Davey said of English Judges that though they were all impartial not all have the power of divesting themselves of prejudices. So with some of our

Judges. We must be aware of, and then beware of these trends, if we mean to plan for the survival of the Bombay High Court as a great and prestigious institution of democracy.(Extract from F.S. Nariman’s speech) democracy.(Extract Smt. Leila Seth former Chief Justice of Himachal High Court reveals startling facts with regard to the appointment of Smt Fathima Beevi to the Supreme Court. In her words: “Justice Fathima Beevi had been in judicial service since 1958 and had been elevated to the Kerala High Court in 1983. She had retired in April 1989 at the age of sixty two. Since she had retired more than five months earlier, it was quite unusual-perhaps unique-that her name should have been put up for the Supreme Court. A couple of Supreme Court judges told me that she had lobbied for the position on the grounds that she would be the first Muslim woman in the world to be a Judge of a Supreme Court, and that there was at the time no Muslim Judge in the Supreme Court of India. When it was pointed out to her that Justice Ahmadi was a Supreme Court Judge, she had responded that he was not a Muslim, merely an Ahmadi-and that even Pakistan did not treat Ahmadis as Muslims.” Smt Leila Seth further says: “Many people knew that her brother-in-law (Fathima Beevi) was a prominent local politician and believed that the Congress government had been assured that they would get the Kerala Muslim votes in the forthcoming elections if she were made a Supreme Court Judge. The Law Minister at the time, Mr. Shankaranand, had been pressing for either Justice Fathima Beevi or Justice Padma Khastgir for some time. Chief Justice Pathak had written back to him to say, ‘I find myself un-agreeable to their appointment to the Supreme Court, and that I was the appropriate choice among the women judges of the High Court at that juncture. “Though I had heard some stories and gossip about Justice Fathima Beevi being appointed to the Supreme Court, I didn’t give them much credence. As a result, when her appointment was actually announced and she was sworn in on 6 October, I felt terribly upset, both for the system and for myself. It showed that lobbying worked. It showed that politics worked. It showed that the misuse of religion worked. Above all, it showed that every decent convention could be broken and that merit was no consideration.” Smt. Leila Seth continues: “Fathima Beevi’s judicial record was quite ordinary. When some people pointed this out to Chief Justice Venkataramiah, he openly stated that she was going to be very junior in the Supreme Court, would retire in two and a half years and would therefore not be heading a bench, so it

didn’t really matter. When his words were reported in the newspapers, lawyers and Judges were shocked. Women lawyers were particularly dismayed, as she was the first woman Judge of the Supreme Court and this was adding insult to injury- first by appointing a retired and not so competent woman Judge, and secondly by making such disparaging remarks.” (On Balance: Leila Seth, pp 31618) Chief Justice of India Justice R.S. Pathak had asked Chandrashekhar Dharmadhikari whether he would accept the Chief Justiceships of Bihar High Court, if offered. Dharmadhikari told Pathak that his name will not be acceptable either to the Government of India or to the Bihar Government, because of his intimate family relations with Shri Jayaprakash Narayan. And also his Brahamin caste will come in his way. Besides, his father Dada Dharmadhikari had vehemently opposed the Emergency. His elder brother Babanrao had tendered his resignation as the Advocate General of Madhya Pradesh, on the day Emergency was declared. Even then Justice Pathak recommended his (Dharmadhikari) name and as expected it was not approved. Justice R.S. Pathak then recommended Dharmadhikari’s name for the Judgeship of the Supreme Court. Leila Seth in her autobiography writes: “Chief Justice Venkataramiah before he left, wanted the six existing vacancies on the Supreme Court filled. The names that had been sent up by Justice Pathak and not cleared by the Executive for a long time were now set aside and an entirely new list prepared. “Instead of the two Reddys, there were now two Ramaswamis, instead of S.C. Agrawal there was N. M. Kasliwal, and instead of Dharmadhikari there was M.M. Punchi. Fathima Beevi had replaced me. “Justice Sabyasachi Mukharji became Chief Justice in December 1989. Two months later, Justice K.J. Reddy, S.C. Agrawal and Ram Manohar Sahai were brought to the Supreme Court; and so was the other Reddy, Justice Jeevan Reddy, a little later. Justice C.S. Dharmadhikari had retired in November 1989. The only person left out from the two lists was myself as it was felt that the Supreme Court now had its token woman. (On Balance: Leila Seth, p 318) It is widely rumoured and I wish and pray that it is only a rumour and not a reality, that one young lawyer who was son of one of the Chief Justices of India was appointed as High Court Judge setting aside his seniors in age and competence. The then President of India was not inclined to sign his appointment C.S.

order, but he was persuaded to do so, which he reluctantly did saying that he knows that he was signing the warrant of the future Chief Justice of India. As a result of this, competent and senior in age lawyers declined offer for Judgeship. What a tragedy for judiciary? During the tenure of Shri P.V.Narsinha Rao as Prime Minister, the caste considerations had become so acute that it was said that three ministers of his Cabinet said “No” to any Brahmin for appointment even to the post of a Judge of the Supreme Court. This was disclosed by Shri Narsinha Rao himself to Justice Dharmadhikari in a private talk at Hyderabad. What a pity that the Prime Minister was made helpless by his powerful anti-Brahamin collegues.

Legal Aid Committees
The important task of Legal Aid Committee is to make legal advice available to those who cannot afford to pay for it, so that they may become aware of their rights and obligations without getting embroiled in litigation. Litigation is quite often the least efficient of the methods by which rights under the law can be secured. Proper legal advice can help in eliminating unnecessary litigation. The members of the Bar, it has been further suggested, should take upon themselves free work in about one-third of cases entrusted to them along with other cases for which suitable payment would be made. Those members of the Bar who cannot render free service on account of their busy practice may make contributions towards the legal aid fund. Other sources for augmenting the fund would be contributions and donations from the public, fees received from partially aided persons and the cost awarded to persons to whom legal aid is given. A danger of which we must beware is that the scheme of legal aid should not result in increase of unnecessary litigation. Legal aid committees should not merely help needy persons seeking redress for the wrongs done to them by enforcing and protecting their rights, such committees should also play an effective role in preventing unnecessary litigation. Otherwise the result would be only to increase the work load of the courts without much corresponding advantage. Properly administered scheme of legal aid has to guard against frivolous and vexatious litigation or unnecessary contest of cases. It

may be apposite to refer in this context the note of caution sounded by Lord Hailsham, the then Lord Chancellor, while deprecating the tendency of the accused because of availability of legal aid, to contest even those cases wherein he would normally plead guilty. (Law, Men of Law and Education: Justice S.R.Khanna, pp68-71) Justice V.R. Krishna Iyer considers the legal aid programme as an arm of the war on poverty. His Report on Legal Aid (1973) identified ten categories of people deserving legal aid service. They are listed as (i) geographically deprived living in distant islands and high mountain, who are mostly governed by customary laws without legal aid services fashioned to suit geo-social conditions; (ii) villagers living in the rural areas who have been victims of feudal lords, who may need assistance to secure legal benefits and entitlements and to avoid legal tyranny based on social prejudices; (iii) vulnerable artisans and agricultural labour who are denied benefits under welfare laws and are forced to distress sales of land; (iv) industrial workers denied social security and fair conditions of work sometimes trapped in protracted litigation by their employers; (v) women who are victims of legal inequity and gender-based discrimination as well as violence; (vi) exploited children; (vii) socially discriminated Harijans; (viii) religious and linguistic minorities; (ix) persons incarcerated in prisons; (x) the disabled persons, the refugees, the HIV infected people and victims of disasters. Clarifying his idea of legal aid justice Iyer in his report writes: “The spiritual essence of a legal aid movement consists in investing law with a human soul. Law and justice can no longer remain distant neighbours if the increasing deficiencies and distortions of the legal system and the challenge to the credibility of the judicature are to be adequately met. The lawlessness of the old law, judged by the new dharma, can be corrected either by radical reform or by surrender to direct action. The choice is obvious.” He finds the constitutional justification to conceive legal aid in such broad and militant terms. An activist technology and multi-form legal aid is envisaged by the constitution. Justice Iyer says: “The Bar must consist of service-minded technicians working at low maintenance cost. Groups of lawyers must be encouraged to band together into public interest firms or service

cooperatives, whose primary business is low-cost or moderately priced service to legal aid clients.” Justice Iyer further says: “The Indian poor are the forgotten clients of the All India Bar. If the Indian Bar currently living in twilight has lost some of the luster it gained during the fight for independence, legal aid is clearly a movement which will regenerate its sense of purpose.” Justice Krishna Iyer advocates the revival of Naya panchayts as a measure aid to poor. For him, there can be no National Plan for Development without legal services being part of it. The legal system to ring true, must tune itself into the wave-length of social justice and befriend the lowly and the lost. Such a transformation is difficult unless our judicature radicalizes itself out of laissez faire legal values, our Bar and Bench reform themselves in professional orientation and court methodology and our law schools vitalize their sylabii through clinical legal education with accent on poverty and backwardness. This operation overhaul is part of the task of legal aid. Such is the vistaramic view of our judicature undertaking offered as a humble homage of the Nation to its noblest law-breaker – lawyer and Father whose ambition was to wipe every tear from every eye and whose mission was social and political justice.” (Dynamic Lawyering: Justice Krishna Iyer, pp 22-24) Justice Chandrashekhar Dharmadhikari gave Philip to the legal aid committees in the State of Maharashtra.

Arbitrators and Tribunals
Arbitrators and members of Tribunals perform essential judicial functions. Though they may not be judges stricto sensu, it is necessary that they are fully socialized into the ethos of independence and impartiality. Some of them possess specialized technical expertise; others may be civil servants or lawyers or retired judges. Some of the tribunals and boards are courts in a full-fledged functional sense. Many of them enjoy vast powers. If they are not independent or impartial in any system or if they are not perceived to be independent impartial by the public because they do not enjoy security of tenure and other forms of protection for their independence, grave jeopardy to individual rights may occur. Administratively and quasi-judicial tribunals have a great

potential

for

performing

important

adjudicating

tasks

but

it

is

necessary to impart a modicum of judicialisation to them to the extent consistent with the functions they perform and with the impact of their powers and functions. Constitution bench of Supreme Court of India had occasion to judicially review Administrative Tribunals Act, 1985 enacted in pursuance of the newly inserted Article 323 A of the Constitution of India.(S.P.Sampath Kumar vs Union of India (1987) 1 Supreme Court case 124). The Court held that the Act would not be rendered unconstitutional if certain amendments were carried out. The amendments thus mandated, though indirectly (under the pain of declaration of invalidity) were to the effect that the Chairman of the Tribunal shall be a sitting or a former Chief Justice or a senior judge of a High Court of proven ability that in the appointment of Vice Chairman there shall be no particular weightage to the Service and no “value-discounting” of judicial members, and that the appointment of Chairman, Vice Chairman and Administrative Members shall be made by the Government only after consultation with the Chief Justice of India. The court also ruled out “such consultation must be meaningful and effective and ordinarily the recommendation of the Chief Justice of India must be accepted unless there are cogent reasons, in which event the reasons must be disclosed to the Chief Justice of India and his response must be invited to such reasons” alternatively, “a high powered Selection Committee headed by the Chief Justice of India or a sitting Judge of the of the Supreme Court or concerned High Court nominated by the Chief Justice of India may be set up for such selection.” The court also directed the Government to set up a permanent bench, and if that is not feasible having regard to the volume of work, then at least a circuit bench, of the Administrative Tribunal wherever there is a seat of the High Court. The court held that these amendments were necessary to insulate the administrative tribunals, which were akin to judiciary, from all forms of interference from the coordinate branches of Government. In this case, the court also reiterated that the independence of the judiciary was a basic feature of the constitution (and by that token, un-amendable and unbridgeable). This may well be described by some as Government by judges but in India the judgment was generally well received and has not been

subjected to much criticism. (Freedom on Trial: L.M.Singhvi, Vikas Publishing house Pvt. Ltd. pp203-4)

Appointment, Transfer And Impeachment
Methods of Appointment of Judges
There are different methods of appointments (recruitment) to the judiciary in different countries. Broadly speaking, there are four methods of judicial appointments: 1. Appointments by direct selection – inter alia, by means of competitive examinations and promotions from the cadre of career judiciary. 2. Appointments from the legal profession. 3. Ad mixture of (i) and (2). 4. Elections. Each method has its strong points and shortcomings. A system of election puts a premium on democratic and periodic accountability but suffers from insecurity and uncertainty of tenure. A judiciary constituted by public examination tends to be cast in the mould of a civil service aloof from the community of lawyers and without the outlook of an independent profession. A judiciary drawn exclusively from the practicing Bar tends to be more accountable to the Bar than any other segment of the society, although it does help to ensure their (judges) independence of mind. These different methods and models are mostly a product of history and habits of mind and cannot easily be replaced. The basic principle which meets with universal approval is that candidates chosen

for judicial office shall be individual of integrity, ability and sound legal training. In the case of lay judges and magistrates, however, legal qualifications are not required, although a course of instructions can be of great value for them. It is axiomatic that judges should be appointed or elected on relevant, proper and intensive considerations. Nepotism, favouratism and partisanship and ignoring professional merit in the matter of making judicial appointments would undermine the professional ethos and moral of the judiciary. There are some countries where judges are appointed by or in effective members consultation of the with judiciary itself In or by Judicial Service Commissions which consists wholly or predominantly of judges and the legal profession. most countries, however, appointments are made by the Executive of the Legislature, after some consultation with judiciary below the High Court fall in the domain of the High Courts, appointment to the High Courts and the Supreme Court are made on judicial advice and in consultation with Chief Justice, and the appointment to the office of Chief Justice, ordinarily, goes by seniority. The system is so modeled as to maximize judicial autonomy and noninterference; in practice, however, the executive does have a large say without always being able to have its way. ( Freedom on Trial: L.M. Singhvi, pp159.62)

Present System in India
The present system of the appointment of judges of the High Courts and Supreme Court was evolved after two constitution Bench ruling of the Apex Court in 1993 and 1998. Through the 1993 ruling, the Supreme Court vested primacy in the Chief Justice of India, while earlier the President of India used to appoint the judges of the High Courts and Supreme Court in consultation with the Chief Justice of India. In the 1998 ruling. The Supreme Court said that the entire appointment process would be controlled by the Collegium System. The collegium headed by the Chief Justice of India and comprising four senior most judges of the Apex Court, has the sole prerogative to

select and recommend to the Government for their appointment of higher judiciary. This judges appointing judges system has been criticized time and again by jurists, including some retired Supreme Court judges who were part of the Benches behind the two rulings. Justice V.R. Krishna Iyer’s views in this respect are as given below: “An innovative instrumentality for nomination of appointees to the higher judiciary by a pro tem collegiums composed of the senior most Supreme Court judges; An egregious fabrication, a functioning anarchy. A frank, sad, but the respectful reflection is that a highpowered appointing authority has been hijacked from the Prime Minister by a Constitution Bench. This has led to an odd imbroglio in Judicial Appointment Jurisprudence. “Judiciary corrects the executive when in error, excess or arbitrariness, without fear or favour. The Legislature enjoys a lawmaking function and national inquest obligation, but, when it acts beyond constitutional counters or restraints, the court has the authority control or quash, the ultimate test being the mandates of the Supra Lex “Therefore, the power to appoint the members of the lofty office is of critical moment and supreme significance. So who appoints the judges, invigilates their behaviour and performance and determines their destiny in cases of proved delinquency holds the Everest of State power. “To be a judge is not a substitute for versatile genius. It violates all neosis of commonsense to empower a lay collegium which has no constitutional foundation except a self-serving ruling. The court is under the constitution and not over it and cannot invent institutions and vest constitutional authority on itself by a Bench majority. “Never in the past anywhere in the democratic world has the high judiciary been empowered to make the final choice of the members of the Superior Courts, wresting this power completely from the Executive. “A specious ratiocination has prevailed with a nine-judge Bench which has ruled, based on a paper thin five….four majority, that the independence of a judiciary is a sacred (superstitious) constitutional principle that this inviolable doctrine will be breached if the Executive

wields the power to appoint judges. That is the discovery of the court which held that a collegium of the highest judiciary shall exercise this great power all by itself.” Justice Krishna Iyer asks: “Who gave the court this supreme power, almost the highest under the constitution especially when the issue had specifically been raised in the Constituent Assembly and Dr. B.R. Ambedkar, the architect of the Drafting Committee had categorically clarified that this power would not be parted with in favour of the Chief Justice who would be consulted but whose concurrence would not be made imperative? In this background, it may not be unreasonable to contend that the Supreme Court has usurped from the Cabinet what does not belong to it. Is the independence of the judiciary rendered vulnerable by the highest Executive becoming the appointing authority? No, perhaps with rare exceptions. “It is outrageous to dismiss, as a casualty judicial independence on the score that the Prime Minister had a decisive voice in appointing them. “The ruling in AIR 1965 SC 745 is in my humble view a grave error, a grievous blunder with all respect to the great judges in the majority who thought so exultingly about judicial independence. This doctrine of independence as a ground for seizing the authority to nominate members of the High Bench is a baloney. “Independence of judiciary is a great guarantee and shall be transcendentally kept beyond the sole power of either the Cabinet or the Apex Court. So it is an imperative that an independent Council of Commission shall be created to advice the Rashtrapati on the selection and appointment of high judicial echelons. “The Constitution in the wisdom of its Founding Fathers has vested the power of appointment of the judges of High Courts and Supreme Court in the President of India. The President, governed by the long standing conventions of Westminster vest in Council of Ministers. “Judges have large of powers and must therefore be accountable as trustees to the people in the discharge of their duties. Even their appointments must have a democratic dimension. One may recall an old Roman adage: “Whatever touches us all should be decided by all.”

(Dynamic Lawyering: V.R.Krishna Iyer, Universal law Publishing Co. pp15-20)

Appointments of Additional Judges
Article 216 of the Constitution of India reads: “Every High Court shall consist of Chief Justice and such other judges as the President of India from time to time deem it necessary to appoint.” This Article implies a constitutional obligation on the President to ensure that the High Court is fully constituted. Incalculable injury to the cause of public justice would ensue if the High Court is insufficiently manned to cope with the normal workload. When the normal workload in almost all the High Courts is increasing at a alarming rate, quite obviously the remedy lies in increasing the strength of the permanent judges. Article 224 (1) of the constitution makes it clear that Additional Judges can be appointed only when it is necessary to increase the number of judges for the time being, by reason of any temporary increase in the business of a High Court or by reasons of arrears of work therein and appointment has to be made for a period not exceeding two years. It is unarguable that Additional Judges can be appointed to cope with permanent increase in the normal workload of the High Court. Yet, ever since the power of appointing Additional Judges was conferred upon the Government in 1956, that Article has been blatantly misused and the constitutional scheme has been distorted. Almost everyone has been appointed first as an Additional Judge and then confirmed as a permanent Judge. Nothing could be better calculated to destroy the sanctity of the constitution than the continuation of the practice which is dead against both the letter and spirit of the constitution. By any rational standard, the various High Courts are grossly undermanned. It is a matter of great public regret that the Supreme Court did not issue a direction restraining the Government from appointing any Additional Judge, till at least the vacancies in the sanctioned strength of permanent judges had been filled up.

Law Minister’s Circular Letter

On March 18, 1981, then Law Minister of the Government of India issued a circular letter addressed to the Chief Ministers of different States in which he requested them (a) to obtain from all the Additional Judges of the High Court in the State their consent to be appointed as permanent judge in any other High Court in the country, and (b) also to obtain similar consent from those persons who have been, or in the future are to be, proposed for appointment as Judges. The letter also carried a request to obtain from the Additional Judges and the proposed appointees names of three High Courts in the order of preference to which they would like to be appointed as Judges or permanent Judges as the case may be. The circular letter was issued at a time when politicians in the high positions had been indulging in a campaign of denigrating the higher judiciary, treating every court decision adverse to the Government as a deliberate and motivated attack on the executive. A Chief Minister of a prominent State had talked of the “Dictatorship of the Court,” while the Cabinet Minister in the Central Government had bracketed the Judiciary with the opposition parties. The above circular was challenged in the Supreme Court on three grounds: (1) Whether the Law Minister’s circular dated March 18, 1981, seeking the consent of Additional judges to be appointed in other States was valid; (2) Whether an Additional Judge could be dropped without giving him an extension, despite mounting arrear of work; (3) In what circumstances could a High Court Judge be transferred to another High Court. Justice Bhagwati, expressing the majority view upheld the circular on the ground that ‘it has no constitutional or legal sanction behind it” and that “it is a document without any legal force.” Commenting on the majority view, Nani Palkhivala said: “If this reasoning is right, the Court must also uphold a circular letter which communicates each Judge through the Chief Minister that “the Government of India thinks very highly of those ‘value-packed judges who never rule against the Government, and will consider favourably their promotion to the Supreme Court.” Palkhivala further said: “Practical knowledge of human affairs would leave no doubt that a

circular

letter

from

the

Law

Minister

can

undermine

judicial

independence or legal sanction behind it.” Justice Gupta, Justice Tulzapurkar and Justice Pathak in their minority judgment expressed that the law minister’ circular letter was invalid. Nani Palkhivala held that the circular letter was unconstitutional for three reasons: 1. It was calculated to have a coercive effect on the minds of the

sitting Additional Judges by implying a threat to them that if they did not furnish their consent to be shifted elsewhere they might not be continued or made permanent. 2. Article 222 of the Constitution provides that “The president

may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. Transfer on a wholesale basis which leave no scope for considering each particular case and which are based on the executive’s one-sided policy are outside the purview of Article 222. tulzapurkar, J, used the language of studied moderation when he called the circular letter an attempt to circumvent the constitutional safeguards by resorting to transfers of sitting Additional Judges under the garb of making fresh appointments on the expiry of their initial or extended term.”

3.

An official of the Law Ministry filed an affidavit which carried

the clear implication that the refusal of an Additional Judge to give his consent to serve in another State would be a relevant but not conclusive factor against him when the question arises of the extension of his term or his appointment as a permanent judge. The affidavit said: “It is not, however, the intention of the letter that a permanent or further appointment will be denied to a Judge only on the ground that he had not given his consent. By no stretch of construction or from the facts and circumstances existing can it be sought to be inferred that failure to give consent would necessarily involve an Additional Judge ceasing to be a Judge.” Thus, invidious discrimination between Additional Judges who give their consent and those who do not was writ large on the face of

the circular letter and that made the circular letter violative of Article 14. in this context it is necessary to remember that High Court Judges do not constitute a single all-India cadre. The refusal of the majority of the Supreme Court to strike down the circular must be regarded as the high watermark of a abdication of judicial power. ( We the People: Nani Palkhivala, pp 226-229)

Transfer of Judges
Although Article 222 of the Constitution provided for the transfer of Judges, this was rarely done. From 1950 to 1975 there had been only 25 transfers, in each case with the concurrence of the Chief Justice of India and the personal consent of the Judge concerned. This had developed into a convention and in 1963, the Law Minister Ashok Sen had given a solemn assurance to Parliament that this convention would be continued. In 1974 annual joint conference of the Chief Justices of the High Courts and Judges of the Supreme Court, it had been resolved to recommend the preservation of this convention. But suddenly in May and June 1976 sixteen High Court Judges were transferred in quick succession and Mrs. Indira Gandhi, who was then Prime Minister announced national integration as a reason. In reality, the policy of transfer of judges was calculated to accomplish disintegration of judicial independence rather than national integration. According to Nani Palkhivala: “Transfers on the wholesale basis which leave no scope for considering each particular case and which are based on the Executive’s one-sided policy are outside the purview of Article 222.” In the case of Justice Sankalchand Seth (AIR 1977 SC 2328) Justice Chandrachud observed: “There are numerous other ways of achieving national integration more effectively than transferring High Court Judges from one High Court to another. Considering the great inconvenience, hardship and possibly a slur which a transfer from one High Court to another involves, the better view would be to leave the judges untouched and take other measures to achieve that purpose. If at all, on mature and objective appraisal of the situation, it is felt that there should be a fair sprinkling in the high Court judiciary of persons

belonging to other States, the object can be more easily and effectively attained by making appointments of outsiders initially”. Justice M.C.Chagla said: “With the efficiency with which the Emergency was being administered, the judges were transferred. In some cases their appeal to postpone their transfer as they had a long part-heard suit going on before them was ignored. An order was an order and had to be obeyed. Considerations of humanity were foreign to the regime of which Gokhale was a member. One judge of the Bombay High Court, Mukhi, a popular and independent judge suffered a fatal heart attack as a result of the order transferring him to the Calcutta High Court. He was one of the victims of the Emergency and his death can be squarely laid at the door of the Law Minister. (Roses in December: M.C.Chagla, p 490) A second batch of transfers was proposed. It was no secret that the largest number was from the Bombay High Court. The second batch was again approved in consultation with the Chief Justice of India. They were Judges whose decisions irritated one or another influential politician. It is now acknowledged that if this batch of transfers had gone through, it would have destroyed the judiciary. It is not widely known-though it is no secret- that the second batch of transfers was stopped not at the instance of judiciary, but at the instance of Prime Minister Mrs. Indira Gandhi. She got the feed back that it was politically unwise to push through these transfers. It was Justice P.B. Gajendragadkar, a distinguished Judge of Bombay High Court, later Chief Justice of India, who played no small part in influencing the Prime Minister. He was then Chairman of the Law Commission of India. The famous and fearless jurist H.M. Seervai said: “It was the Supreme Court which in the supreme moment failed to discharge its duty. It delivered a judgment which in substance said that any one of us could be picked up and shot, and our widows may have the comfort of filing a criminal prosecution for murder after the emergency was over!” That judgment has few defenders now. Two of those who wrote it are heartily ashamed of it, and one has said that the order was incorrect and did not conform to the judgment. (Post Centenary Silver Jubilee of Bombay High Court, p 49) In 2002, the Report of the National Commission to Review the Working of the Constitution of India [“NCRWC”], chaired by former Chief Justice M. N. Venkatachaliah, drew a distinction between misbehaviour warranting

removal and deviant behaviour attracting disciplinary measures short of removal, primarily judicial transfers. Such transfers, the NCRWC Report contended, should be made only by an independent National Judicial Commission with mixed judicial executive membership to ensure both accountability and independence. In January 2006, the 195th Report of the Law Commission of India, responding to a reference made by the current Union Law Minister on a new legislative proposal to devise a mechanism to replace the Act of 1968, made a strong pitch in favour of “minor measures” to discipline judges without impeaching them outright. In the last few years, there have been a series of judicial controversies that have been inconsistently met by the internal ‘minor measures’ method. In Karnataka, three judges accused of a sex scandal were absolved of all guilt after an internal judicial inquiry whose report was never publicly released. In Punjab, the entire High Court struck work for the first time in judicial history to protest the Chief Justice’s stand on receiving gifts from litigants; ironically, the Chief Justice was transferred. And in Rajasthan, an internal committee recommended the removal of a sitting judge accused of soliciting sexual favours. Since the adoption of the Constitution, judicial independence has preoccupied both the judiciary and the executive, for different reasons. The Constituent Assembly in 1947–1949, the Joint Committee of 1966, the NCRWC Report of 2002 and the Law Commission in 2006, amongst many others, have steadfastly underlined the importance of judicial independence. The Supreme Court has repeatedly held that judicial independence is a part of the “basic structure” of the Constitution. However, the frequent use of the transfer of judges’ power, contained in Article 222 of the Constitution, has been exercised by the executive to undermine judicial independence. Both the Report of Justice Fazal Ali’s States Reorganisation Commission in 1955 and the 14th Report of the Law Commission saw the transfer power as a desirable means of consolidating ‘national integration’ by maintaining in all High Courts a certain proportion of ‘outsider’ judges. This policy turned on consent. Indira Gandhi used the transfer power to notorious effect during the Emergency of 1975–1977 to effect punitive transfers of judges who were critical of her government or who ruled against arbitrary detentions. However, even after the Emergency obliterated the consent rule, the principle of transfers without consent has been kept alive in varying measures. In the last decade or so, there has been revival of the policy of transferring controversial judges for punitive reasons, usually to courts in north eastern India that suffer as a result. However, shuttling judges around the country

has not and cannot be an effective substitute for judicial accountability. Punitive transfers have sometimes been forced by, and met with, protests to create messy situations. This lynch culture precludes due process and thwarts meaningful accountability.

Impeachment
In India, a judge of the Supreme Court may be removed from office after a Parliamentary address to that effects is accepted by the President under Article 124(4), which reads as follows: “A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less the two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.” Parliament is further empowered to enact law to regulate the manner of investigating a judge and the procedure that is to be followed under Article 124(5), which reads as follows: “Parliament may be law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause(4).” A judge of a High Court may be removed in a similar manner by virtue of Proviso (b) to Article 217 (1): “A judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court” Article 218 makes the provision of Articles 124 (4) and (5) apply in relation to High Court judges with necessary changes. The Constitution, hence, creates an impeachment mechanism to remove judges of the superior judiciary and allows Parliament to enact further laws to regulate the procedure of such removal including due process. Since there are no further provisions for removal, judges of the superior judiciary can only be removed after President accepts an address by Parliament where both Houses have adopted resolutions to that effect by a special majority. Thus, the initiation of a judicial impeachment lies solely with Parliament and not with the executive. No provision was made to create a complaint mechanism to enable citizens or

authorities other than Parliament to register actionable complaints of judicial misconduct or other grievances. An examination of the early debates of the Constituent Assembly reveals that, far from instituting a complaints mechanism to make the superior judiciary accountable to every citizen, the Constituent Assembly was loathe even to include substantive measures for a regular removal mechanism. In fact, members of the Constituent Assembly did not believe that a mechanism to remove judges would even be necessary. The Report of the Union Constitution Committee indicated little discussion of the judiciary, much less a mechanism to remove its judges. Sir Alladi Krishnaswami Ayyar spoke of the removal power: “It does not mean that the power will normally be invoked. The best testimony to such power is that it has never been exercised. It is a wholesome provision intended to be a salutary check on misbehaviour, not intended to be used frequently, and I have no doubt that future legislatures of India which are invested with this power will act with that wisdom and that sobriety which have characterized the great Houses of Parliament in other jurisdictions.” This reticence is ironic considering the initiation of removal proceedings, almost exactly one year later, of justice Shiv Prasad Sinha of the Allahabad High Court. In July 1948, acting on the request of the Government of the United Provinces, the Governor General of India referred a complaint against Justice Sinha to the Federal Court of India. Five charges were framed against the judge, including charges related to corruption, and the Federal Court began its inquiry. The Federal Court maintained due process, heard both the judge and the government and allowed the latter to be cross examined. After upholding a single charge based on circumstantial evidence, the Federal Court recommended that the judge be removed. On 22 April 1949, the Governor General of India accepted the recommendation of the Federal Court and Justice Sinha was removed under powers given to the Governor General of India by Section 220 (2) of the Government of India Act, 1935. What engaged the Constituent Assembly on 29 July 1947 was a short discussion on the merits of two opposing models for removing judges of the superior judiciary. Sir Alladi Krishnaswami Ayyar proposed a ‘parliamentary’ model of removal whereby, “A judge of the Supreme Court of India shall not be removed from his office except by the President on an address from both the Houses of Parliament

of the Union in the same session for such removal on the ground of proved misbehaviour or incapacity.” Sir Alladi’s model was accepted by K. Santhanam but not by M. Ananthasayanam Ayyangar who proposed an ‘executive’ model of two variations. The first of these was: “A judge may be removed from office on the ground of misbehaviour or of infirmity of mind or body by an address presented in this behalf by both the Houses of the, Legislature to the President, provided that a committee consisting of not less than 7 High Court Chief Justices chosen by the President, investigates and reports that the judge on any such ground be removed.” The second variation of the executive model that was proposed was: “A Judge of the Supreme Court may be removed from office by the President on the ground of misbehaviour or of infirmity of mind or body, if on reference being made to it (Supreme Court) by the President, a special tribunal appointed by him for the purpose, from amongst judges or ex-judges of the High Courts or the Supreme Court report that the judge ought on any such grounds to be removed.” Hence, whereas M.A. Ayyangar’s first proposition made it possible to remove judges after a tribunal of 7 or more Chief Justice of the High Court, appointed by the President on an address by both Houses of Parliament, investigated and recommended a removal, his second proposition reduced that tribunal to a panel, the composition of which was left to the President. M. A. Ayyangar’s motives in proposing the executive models were clearly his desire to put in place an efficient system of judicial accountability, unencumbered by further statutory due process. This model had been first proposed by Sir Tej Bahadur Sapru’s Conciliation Committee in 1945. however, the executive model did not find favour with Sir Alladi who feared that it would subordinate the Chief Justice of India to the executive and reduce him to the mercy of the President. Sir Gopalswami saw, in the two competing models presented before the Constituent Assembly, a need to “think furiously” as he was at odds with the parliamentary “think idea of judges being “removed by popular vote” thereby subjecting them to a “principle which you are not prepared to accept even in the case of ordinary public servants”; and, equally dissatisfied with the executive proposal of “placing a Judge who is accused of misbehaviour in the dock before a Tribunal some of the members of which might have held positions subordinate to him in the judicial hierarchy of the country.” In the end, the parliamentary model of Sir Alladi won

the Constituent Assembly and the Constitution enacted the impeachment model in Article 124(4) leaving the due process of the removal up to Parliament to enact in Article 124(5). Not all were pleased with Parliament’s power to politically interfere with a removal through their due process empowerment, seeing the power as a threat to judicial independence. In 1964, the Judges (Inquiry) Bill [“Bill of 1964”] was introduced in Parliament to exercise the power under Article 124(5) of the Constitution to enact a due process mechanism for removing judges. In the intervening years between the adoption of the Constitution in 1950 and the introduction of the Bill of 1964, not very much was done to generate a consensus on removing judges. The 14th Report of the Law Commission of India in 1958 contained detailed suggestions to reform judicial administration but made no mention of the procedures to extract judicial accountability. Indeed, the power to remove judges was treated most summarily: “Realising the importance of safeguarding the independence of the judiciary, the Constitution has provided that a Judge of the Supreme Court… holds office till he attains the age of 65 years and is irremovable except on the presentation of an address by each House of Parliament passed by a specified majority on the ground of proved misbehaviour or incapacity. Thus the Constitution endeavoured to put Judges of the Supreme Court above executive control.” The Law Commission’s 58th Report was no less helpful. It would thus appear that: (a) while the Constitution provided for the removal of judges, it made no provision whatsoever for judicial misdemeanours. (b) when the crisis over Justice Ramaswami occurred in, the Court more or less resolved that it would deal with the matter internally. (c) This internal theory came to be tested in the Bhattacharjee Case, (1995), the Karnataka crisis (2004), the Punjab crisis (2004-05), the Delhi corruption case (2002) and most recently in the Justices Sethna-Majmudar controversy in Gujarat (2006-07). While the internal approach has had some modest successes in the Punjab, Karnataka and, possibly, the Gujarat case (where the answer is still pending), its success depends on the good offices of the Chief Justice of India which are not necessarily accepted by errant judges.

(d) But there are some features of the internal model which may be useful. The first of these is that the Chief Justice of India sets up an internal machinery of investigation consisting of the Chief Justices of other states which in the Karnataka case reported that the accusations were incorrect. Secondly, the Chief Justice of India then threatens transfer of the judges and makes the threat good as a punitive measure. This punitive transfer approach has rightly been criticised by various Bar Associations and more recently by the eminent jurist Fali Nariman (February 2007) questioning why the recipient state should accept a judge who may either be corrupt or is guilty of misconduct. (e) Thus, the informal internal approach must be rejected as a viable answer to deal with the problems that plague the higher judiciary. External Approach and Principles to be Examined: Independence and Accountability It has thus become necessary to adopt an external approach based on statutory change. In this regard, the following principles have to be borne in mind: (i) The principle of the independence of the judiciary is fundamental to the Constitution; this protects judges from both the Executive and provides immunity in respect of their work. (ii) However, the principle of independence of judiciary cannot forestall accountability (See UN Basic Principles, 1985 preceded by LM Singhvi’s Report to the ECOSOC of the UN, the (ICJ’s Syracusa Principles and the Bangalore Principles on Judicial Conduct). (iii) It is thus necessary to reconcile judicial independence with judicial accountability. (iv) In India, this reconciliation has, in the past been made by using or threatening the power of transfer. In this context, it is necessary to note Justice Bhagwati’s dissent in the Sheth case (1979) and the First Judges Case (1982) as well as the views of the Satish Chandra Committee and the 14th Report of the Law Commission of India of 1958. The Law Minister on 20th October 2004 has taken the view that transfers are not punitive. The weakness – and perhaps success of the system is illustrated by the example of Allahabad’s Justice SK Agarwal who quit over his transfer (See Hindustan Times, 6 January 2005). (v) Equally, the reconciliation between independence and accountability through the internal method devised by successive Chief Justices of India have

been essentially ineffective and problematic even if something has to be learnt from them. (vi) The increase in judicial corruption and misbehaviour has been quite considerable with intuitive allegations by Chief Justice Bharucha (in 1998) that the incidence of corruption may be as much as 20%. On 18th September 2004, the Prime Minister expressed concern about corruption in the judiciary. There is also growing misconduct by judges. There is a classic example of an Allahabad judge who issued contempt to persons who denied him deference. The spat between two Gujarat judges in 2007 did no credit to the judiciary. Thus, there can be little doubt that there is a need for an external system which will check both corruption and judicial misconduct. Fali S. Nariman said: “Impeachment is a powerful, but blunt instrument. It is the heaviest price of artillery in the arsenal and because it is so heavy that it is unfit for ordinary use.” Nani Palkhivala said: “Impeachment proceedings in Parliament–the only constitutional way of removing a judge of a High Court or the Supreme Court from his office-is a procedure not to be resorted so lightly. It is enormously cumbersome and is likely to bring political passions into play. A striking example of the malfunctioning of our democracy is afforded by the fact that the impeachment proceeding sought to be started in our Parliament was that against one of our finest judges. J.C. Shah, a Judge of impeccable integrity. It was a move commenced by a disgruntled, dishonest civil servant against whom Justice Shah had given a judgment in the Supreme Court, and who cunningly managed to secure as many as 199 signatures of members of Parliament for an appeal to the Speaker of the Lok Sabha, managed to convince the majority of the signatories of the irresponsibility of their act and the move for impeachment was dropped. (We the Nation: Nani Palkhivala, pp 234) Justice V. Ramaswami was appointed as Judge of the Supreme Court on 6 August 1989. Before coming to the Supreme Court, he was Chief Justice of the Punjab and Haryana High Court. He was involved in the corruption of Rs 15 lakhs. Faced with the mounting controversy Mukharji, CJI, requested Justice Ramaswami to go on leave and constituted a committee of three Supreme Court judges to suggest action. The committee, however, found no reason to deny judicial work to Justice Ramaswami and he was allowed to resume work. Meanwhile, the Court Bar restored by 381 votes to 306 called on Justice V.

Ramaswami to resign (Indian Express 1st February 1991) and not to appear before him. Kapil Sibal, presented an eloquent defence of Justice Ramaswami before the Lok Sabha that was premised on an insufficient degree of admitted judicial misconduct. A three men committee found Ramaswami guilty and made report accordingly. A motion to impeach him was moved in the Parliament under Article 218 read with Article 124 (4). Ramaswami survived the impeachment motion as Parliament got divided along regional lines, Southern Members of Parliament strongly supported him. Congress members remained abstain from voting under the whip of Congress party, ignoring the correct legal position that Parliament had to exercise a quasi-judicial function on an impeachment motion. Only 196 members of Parliament, less than the required two-thirds voted for his ouster. Ramaswami honorably retired as Supreme Court Judge on position. January 31, 1993. After his retirement, the government of Tamil Nadu installed him on a coveted

Justice M.M. Punchi
The charge sheet was prepared by the Committee on Judicial Accountability in 1998, when Justice Punchi was a judge of the Supreme Court of India. It was signed by 25 MPs of Rajya Sabha. However, before it could get the signatures of the requisite number of 50 MPs of Rajya Sabha, Justice Punchi was appointed Chief Justice of India. After this, it became virtually impossible to get the Notice of Motion signed by any MPs. Consequently, Notice of Motion could not be presented to the Speaker. The imp lesson of this exercise was that it is very difficult to get the MPs sign the impeachment motion unless three conditions are satisfied. Firstly, the charges must be very serious; secondly they must be provable by documentary evidence which is annexed to the Notice of Motion and finally, the charges must have been given substantial publicity in the media. In the absence of all the three conditions been satisfied, MPs are afraid and reluctant to sign a charge sheet against a sitting judge. It is normally exceedingly difficult to get documentary evidence to prove charge against sitting judge, particularly in the absence of a statutory investigation by an agency having powers of investigation. Moreover, the bulk of the main stream media is afraid to publicise charges against the sitting judge for fear of contempt. In Ramswami’s case, the above three conditions were satisfied. Documentary evidence was

available against Ramaswami because of the report of the Accountant General who audited the purchases made by Ramaswami as Chief Justice of Punjab and Haryana High Court. This is why, impeachment of judges, however corrupt they might be, is not a practical remedy in disciplining them.

Code of Conduct
There has been an urge among great Indian judges to create a Code of Conduct for judges. After considerable discussion and deliberation Chief Justices of India and of the High Courts have felt the

need to formulate basic principles which will inhibit abuse of heady judicialese and ensure good behaviour in their incumbent’s public and private life so becoming of the high office which carries vast powers over all citizens in matters of rights, duties and even disputes among citizens and States. Indeed, the Supreme Court is final not because it is infallible; it is infallible because it is final. This finality and pro-tem infallibility indubitably necessitate considerable excellence of credentials. That is why the Chief Justice of India and the Chief Justices of State High Courts have spelt out, unanimously the following paradigmatic prescriptions which are set out below: “WHEREAS by resolution passed in the Chief Justices Conference held at New Delhi on September 18-19, 1992, it was resolved that it is desirable to restate the pre-existing and universally accepted norms, guidelines and conventions reflecting the high values of judicial life to be followed by judges during their tenure of office. AND WHEREAS the Chief Justice of India was further requested by that Resolution to Constitute a Committee for preparing the draft restatement to be circulated to the Chief Justices of the High Courts for discussion 21.11.1993; AND WHEREAS suggestions have been received from the Chief Justice of India on April 7, 1997, to finalize the Restatement of Values of Judicial Life after taking note of the draft Restatement of Values of Judicial Life prepared by a Committee appointed pursuant to the Resolution passed in the Chief Justices Conference 1992 and places before the Chief Justices Conference in 1993. AND WHEREAS such a Committee constituted by the Chief Justice of India has prepared a draft Restatement after taking into consideration the views received from various High Courts to the draft which was circulated to them; NOW, THEREFORE, on a consideration of the views of the High Courts on the draft, the restatement of the Pre-existing and universally accepted norms, guidelines and conventions called the RESTATEMENT OF VALUES OF JUDICIAL LIFE to serve as a guide to be observed by judges, essential for an independent, strong and respected judiciary, indispensable in the impartial administration of justice, as redrafted, with their colleggues, which was duly circulated on

has been considered in the Full Court Meeting of the Supreme Court of India on May 7, 1997 and has been ADOPTED for due observance. Restatement of Values of Judicial Life 1. Justice must not merely be done but it must also be seen

to be done. The behaviour and conduct of members of higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided. 2. A Judge should not contest the election to any office of a

club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.

3.

Close association with individual members of the Bar,

particularly those who practice in the same court, shall be eschewed. 4. A Judge should not permit any member of his immediate

family, such as spouse, son, daughter, son-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him. 5. No member of his family, who is a member of the Bar,

shall be permitted to use the residence in which the judge actually resides or other facilities for professional work. 6. A Judge should practice a degree of aloofness consistent

with the dignity of his office. 7. A Judge shall not hear or decide a matter in which a

member of his family, a close relation or a friend is concerned.

8.

A Judge shall not enter into public debate or express his

views in public on political matters or on matters that are pending or are likely to arise for judicial determination. 9. A Judge is expected to let his judgments speak for

themselves. He shall not give interview to the media. 10. A Judge shall not accept gifts or hospitality except from

his family, close relations and friends. 11. A Judge shall not hear and decide a matter in which a

company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised. 12. 13. A Judge shall not speculate in shares, stocks or the like. A Judge should not engage directly or indirectly in trade or

business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business). 14. purpose. 15. A Judge should not seek any financial benefit in the form A Judge should not ask for, accept contributions or

otherwise actively associate himself with the raising of any fund for any

of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice. 16. Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.

These are only the Restatement of the Values of Judicial Life and are not meant to be exhaustive but illustrative of what is expected of a Judge. These basics of good conduct, minimal in character but not negotiable in observance, have yet to receive implementation by constitutional or legislative action. Although, years have passed since, justices have come and gone, grave misconduct has been reported and brought disrepute to the judiciary, the Prime Minister and his Cabinet have slumbered too long to be taken seriously. A Bench of the Supreme Court in its majority pronouncement has made an assertion that they want a judiciary whose body and soul are beyond purchase, whose independence is beyond pressure, partiality and corruption, and whose performance is free, fearless and fair and offers democratic access to the forensic process. For this reason the Apex Court has wrested power to appoint Judges. Today, the Indian judicature is in a crisis both regarding appointment of judges and disappointments owing to unscientific choices, performance and objectionable pachydermy. India’s have-not humanity is unhappy that the Justice System is declining in integrity, social philosophy and genius, although, the judges have wrested power, without constitutional justification, to appoint their brethren in the dubious guise of the Independence of Judiciary. They have now fear of accountability because impeachment before Parliament is apt to be political futility or fiasco. (Dynamic (Dynamic Lawyering: Justice V.R.Krishna Iyer, Universal law Publishing Co., New Delhi, pp 9-12) 9-12)

Justice Ranganath Mishra was sworn in as the Chief Justice of India in early October of 1990. He wrote the following confidential letter to the Chief Justices of High Courts on 4th November, which speaks volumes for the state of affairs in the judiciary:

“At the last Conference of yours held here, all of you had discussed the serious problem of judicial indiscipline and the growing dissatisfaction of the general public in the matter of functioning of the judicial process. “Last month I wrote to you and to each individual Judge that immediate steps should be taken to improve our performance to ensure acceptability of the system by the society. You would perhaps agree with me that the conduct exhibited, the manner in which Judges function, the social rapport that is permitted to be developed, the lack of commitment to judicial functioning, want of control over the atmosphere in the Court and reasons like these have cumulatively led to the present situation. “For quite some time on the basis of reports of the Law Commission and debates else where, the idea of inducting one-third of the Judges of every Court from outside is being attempted to be implemented. This necessarily involves transferring one-third of the existing Judges from their own Courts to other Courts unless this is done at the time of appointment by posting Judges outside their own territories. “It is being reported that in some Courts the Judges do not commence work in time and they frequently rise before the scheduled lunch time; they do not reassemble in time and get up before the time for rising of the Court. This necessarily leads to curtailing the availability of manpower apart from bringing in indiscipline. Judges are expected to dispose of 650 main cases a year but there are several instances where the output is grossly low. “I have no intention of generalizing these aspects. There are many Judges in the High Courts who are conscientious and are anxious to maintain the dignity of their own as also of the institution but there are others who do not have that perception. Experience of life shows that a few erring ones are sufficient to spoil any system. It is the Chief Justice’s responsibility-both constitutional as also moral-to make his Court work appropriately. Therefore, the Chief Justice must exercise his powers, influence, moral bearing and personal contact to improve the working in his High Court. “It is proposed to initiate proposals for the shifting of some Judges from their Courts to different Courts with a view to implementing the recommendation of the Law Commission. It maybe that certain Judges in your Court do not find the atmosphere congenial and would like to be posted out. There may be instances where close relations of Judges are practicing and, therefore, to avoid embarrassment such Judges may also like to be posted out. We have come across

instances recently where Judges have started litigating in respect of their properties in Courts subordinate to their own or even in their own Courts. This certainly gives rise to a very unhappy situation. There are also instances where some Judges are not amenable to any discipline and their shifting to a different Court is likely to bring about some improvement. I look forward to an honest assessment of yours and to indicate such names as you think would be appropriate for inclusion in a list to be drawn up for such purpose. “It is also proposed to maintain a separate wing in the establishment of the Chief Justice of India where the performance of individual judges in the High Courts may be appropriately registered. This would be necessary for several purposes including taking up Judges’ appointments as Chief Justices in High Courts, elevating them to the Supreme Court and for special posts as and when occasions arise. I would like to inform you that Union Government have accepted the proposal of setting up an in-service institute at the national level where judicial officers from the States and such of the High Court Judges who would like to come when invited would undergo a few weeks’ refresher courses or undertake research. We shall also require the capable section of the Judges in the High Courts to visit the Institute for brief periods for purpose of lecturing to the officers. “There are some particulars available about the Judges and their performance until they are recruited but no information is maintained relating to specialization, authorship of books or contributions to journals and the like once they are elevated as Judges. It is necessary that such information should also be available in the records to be maintained. Information regarding Judges’ disposal per annum is also necessary to be maintained for assessing judicial efficiency for the purpose indicated already. Your Registry should, therefore, be directed to forward to the Registrar-General of the Supreme Court every month the record of disposal of main cases per Judge by name to enable the record to be complete and updated. This may start from December of 1990 when the information for November may be sent.” (On Balance: Leila Seth, pp 304 to 307) Justice Shri K.G.Balakrishnan, the Chief Justice of India, sent a circular prescribing 12 point model Code of Conduct for Judicial Officers (Judges of Subordinate Courts). The code of conduct among other things contain: No Judicial Officer shall receive, see off, or visit the Chief Justice/Judges during the Court hours; arrange private trips, food or transport for them; they shall not offer or provide any gift or hospitality to the Chief Justice/Judges or visit the visiting Chief

Justice/Judges unless for official purposes; they shall not arrange any function during the visit of the Chief Justice/Judges; No Judicial officers shall see visiting Chief Justice/Judge unless called for official purpose.; if the visiting Chief Justice/Judge wants to call a Judicial officer for official purpose, he will be called before or after the court hours. Dinners or lunches, usually arranged by the subordinate Judges during official visits of High Court Judges have been banned. No function will be organized by judicial officers during the visit of the Chief Justice/Judges except official function.

According to the circular, any violation of the code of conduct will be considered as gross misconduct. The need of prescribing code of conduct speaks volumes. The Chief Justice of India justice S.H. Kapadia delivered fifth M.C.Setalvad Memorial Lecture at Delhi on 16th April 2011. The relevant extracts of his lecture, which relate to the Code of Conduct of Judges are given below: A judge’s obligation must start and end with his analysis of law, not with personal beliefs or preferences. The judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignments. These can give rise to corruption if and when quid pro quo makes a demand on such judges. Similarly, when a family member regularly appears before a judge, adverse public perception can affect the working of an institution like the judiciary. The active involvement of judges in community organisations has also evoked a similar response when their civil society associates appear as litigants before them. Frequent socialising with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the judge is susceptible to undue influence in the discharge of his duties. In such a situation, judges must keep the part of impartial, objective, fearless and independent justice alive. A judge must inevitably choose to be a little aloof and isolated from the community at large. He should not be in contact with lawyers, individuals or political

parties, their leaders or ministers unless it be on purely social occasions. When one enters the judges’ world, one inevitably has to impose upon himself certain obvious restrictions. Judges owe a solemn duty to the community at large and from day to day they must ask themselves whether they have done or said anything which is inconsistent with the oath of office they have taken and which otherwise are consistent with their obligations as a judge. One more aspect needs to be highlighted. Internal interference from a high ranking judge which, if resisted, could lead the lower ranking judge being transferred or being denied promotion also needs to be deprecated. Similarly, political protection should not be given to corrupt judges…

Structuring of Judgments
Judgments are not to be written as simplified newspaper pieces for public consumption. The process of reasoning in a judgment should reflect its integrity and explain its conclusions. Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law, which is there for peace, order and good governance. Judges should account for exercise of judicial power, especially when pronouncing judgments of significance… The judges of the Supreme Court of India should revisit the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to enact laws. We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a superlegislature to weigh the wisdom of legislation. We must remember that our Constitution recognises separation of powers and that the legislatures and government can be made accountable for their legislation and actions by the electorate if they err. In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the

courts should be circumspect in understanding the thin line between law and governance. In such matters, the courts must try to ascertain whether the issue has a legal content or a political content. In the latter case, the courts should invoke the doctrine of deference. The function of the courts is to review the acts of the legislature and not to substitute its own policies or values on the society or the legislature. We do not have the competence to make policy choices and run the administration. Judicial activism which is not grounded on textual commitment to the Constitution or the statute, unlike activism in cases of human rights and life and personal liberty raises questions of accountability of a judiciary whose members are not chosen by any democratic process and whose members are not answerable to the electorate or to the legislature or to the executive. We, judges, should remember that the validity of our decisions cannot rest on popularity. Resisting the pressure to please the majority is the strength of the judiciary, not its weakness. Judges who invoke the Constitution to protect the rights of people and who declare a statute unconstitutional are not legislating from the bench, nor are they thwarting the will of the majority. They are merely carrying out their oath of office and following the rule of law. In the context of the developing world wherein litigation impinges on the economy or commerce, many judges are cowed into submission rather than walk the tight rope of balancing the public interest and be tarred with the epitaph of “usurping the legislative function”. Lawyers and the public, apart from criticising, must engage in constructively empowering the judiciary…

New questions of accountability
Where the Constitution has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, the court cannot limit such powers upon any notion of the spirit of the Constitution. Well-established rules of interpretation require that the meaning and intention of the constitution framers must be ascertained from the language of the Constitution itself; with the motives of those who framed it, the Court has no concern.

At the same time the Constitution is not to be construed in a narrow pedantic sense and a broad liberal spirit should inspire those whose duty it is to interpret it. Constitution must be treated as a living organic thing. Hence, it should be interpreted on the principle that “it is better for a thing to have effect then to be made void”. This principle is the basis of the presumption of constitutionality. After 1980 the Court has changed its direction to securing the rights of citizens from arbitrary actions of the executive and creating a human rights jurisdiction by an enlarged meaning of Article 14 (the right to equality) and Article 21 (the right to life and personal freedom). Between them the court has for all practical purposes introduced the “due process provision” in the Indian Constitution in such matters. In the so-called public interest litigations (PILs) the court freely decrees rules of conduct for government and public authorities which are akin to legislation and oversees their working. To give a few examples: the court in the interest of clean environment has ordered and supervised the use of clean fuel for vehicles in New Delhi; it has framed schemes of admission in educational institutions throughout India, and made the right to education into a fundamental right from a directive of state policy, and made guidelines to be adopted by public institutions for controlling sexual harassment of women in workplaces The jurisdictional peg on which it is done so is that such matters affect “the life” of the citizen under Article 21 of the Constitution. Its justification is that the other branches of government have failed or are indifferent to the solution of the problems. In such matters, the Court is acting in advance of the political branches of the government. By and large such orders have been considered necessary and welcomed by the public, but the question which arises is — can judges ignore the separation of powers in the Constitution and become administrators, and do they have the competence to make policy choices and run administration? Legislatures and government can be made accountable for their legislation and actions by the electorate if they err…

Value-based Judicial Accountability and independence

…Coming to judicial accountability, there is no difficulty in accepting the principle that in a society based on the rule of law and democratic principles of governance, every power holder is, in the final analysis, accountable to the people. The legislature is accountable to the electorate. The executive is indirectly accountable to the people through the elected legislature. There is no reason why the judiciary should not be accountable to the community for its due performance of the functions vested in it. Power is given on trust and judicial power is no exception. The challenge, however, is to determine how the judiciary can be held to account, consistent with the principle of judicial independence. How does one achieve the right balance between autonomy in decisionmaking and independence from external forces on the one hand and accountability to the community on the other hand? While not recommending the regular election of judges or their recall by popular vote I would venture to suggest that judges, unlike legislators, ministers or public servants, should be accountable to the jurisdiction they serve through their absolute adherence to a set core of judicial values. Through inheritance of British constitutional principles judges in many Commonwealth countries are accountable to either the legislature or the executive, in the sense that one or the other of these two branches of government is vested by the constitution with the power to remove judges for proved misbehaviour or incapacity. At times this power has been grossly abused in some of the countries. Judges inevitably end up in the political arena in deciding controversial cases — whichever side they rule. In resolving disputes between citizens and state or evaluating a constitutional issue, judges are forced to make decisions which are at times termed political. Judges are, however, not in a position to defend their judgments as they are bound by a code of silence. As stated above, judges should account for exercise of judicial power, especially when pronouncing judgments of significance. Public and media criticism of judges and judgments is a common feature today throughout the common law world. Like other public institutions, the judiciary must be subject to a fair criticism. But, what I am concerned with is response to criticism, particularly, criticism, that is illegitimate and irresponsible. In the context of such

illegitimate and irresponsible criticism, it must be borne in mind that love for justice is rare — what most people desire is justice which favours them. Our code of judicial conduct will meet its goal if a talented, hopeful young person looks in the mirror and sees in the reflection the desire to exemplify the standards of justice and the possibility of doing so. The time has come to have close look at our judicial system. Some of the questions which face today are: Does our judicial system satisfy the demand for justice? Does it fulfill the expectations of the people? Are courts of law looked upon as temples of justice, where it is administered justice without fear or favour, oblivious of the personalities of the litigants and without regard to their long purse or high status? Does the common man have an abiding and unshaken faith in the process of as administered by courts? It is upon the answers to these questions, that our judicial system would ultimately be judged.

A Clean Conscience Alone Can Enshrine Sacredness
In the opinion of Justice Dharmadhikari “The basic question in democracy is: Who will watch the watchman? By appointing a watchman the work is not over. We have to keep a vigil whether he is awake or otherwise. A strong and vigilant Citizens’ Forum has to be evolved. The Hindus who are idol worshippers always face a typical dilemma: How to hit the scorpion on an idol of Shiva, without meaning to hit the idol? A rational approach alone can solve such dilemmas. A clean conscience alone can enshrine sacredness. The corrupt has no caste, creed or religion. We cannot forget that one who protects corruption, helps and protects a corrupt person is also, in a way stamped as a corrupt. Prestige of judiciary does not depend on monuments or tradition. It has certain eternal values. Judiciary represents the democratic values and culture of our country. It is not mere adornment of values but an expression of fundamental values. This awareness has gone into oblivion. And this indeed is a great tragedy.”

Craving for other Jobs
No less a person than the Chief Justice of India and the Vice President of India Justice Hidayatulla said in his address on the occasion of the celebrations of

125 years of the Bombay High Court: “The craving for other Jobs in the Judiciary is increasing. These are, Law Ministership and membership of Parliament. One Chief Justice resigned from the Supreme Court, contested the election and failed. Two retired Judges of the Supreme Court contested Presidential elections and also failed miserably and one Chief Justice escaped by a whisker to fail also. If the opposition had not had a beating in the Presidential election and was not prepared to face another, one more retired Chief Justice would have joined the band of failures.” Justice Hidayatulla further said: “Worst still is a craving for ministership and membership of Parliament. The membership, is of course, only a stepping stone. One Supreme Court Judge and one High Court Judge resigned from the Court and got into Parliament. They canvassed for this with the Executive. Before these Judges working for short spell resigned, entered politics and became Law Ministers. Two others did not accept Judgeship even after being nominated. All this degrades the office of a Judge, but, of course, the lure is there.” (Post Centenary Silver Jubilee of Bombay High Court, pp 78) Unfortunately, the craving for political positions and other assignments is seen on increasing returns rather than diminishing returns in terms of law of economics. “When a Judge who is a sitting Judge craves for after retirement assignment, it means he is managing for it, even during his tenure as a Judge and even before his retirement.” says Justice Dharmadhikari.

Judicial Standards and Accountability

The Judicial Standards and Accountability Bill, 2010 Statement of Objects and Reasons
Shri M. Veerappa Moily, the Law Minister of India in his Statement of Objects and Reasons on 10th November, 2010 for the Bill 2010 said: The Judges (Inquiry) Act, 1968 was enacted with a view to lay down a procedure for removal, for proved misbehaviour or incapacity, of judges of the High Courts and the Supreme Court by way of address of the Houses of Parliament to the President. There is, however, no legal provision at present for dealing with complaints filed by the public against Judges of the High Courts and the Supreme Court. The need for a statutory mechanism to address complaints of the public in this regard has been felt to bring greater transparency in the judiciary. 2. The Full Court meeting of Supreme Court of India on 7 May, 1997 had adopted “the Restatement of Values of Judicial Life”. The above Restatement lays down certain judicial standards which are to be followed by the Judges of the Supreme Court and the High Courts. However, this Restatement of Values of Judicial Life does not have any legal authority and cannot be enforced. It is felt that the judicial standards also be made a part of the statute to give it the requisite legal sanction. This measure is also likely to be made a part of confidence in the judiciary considerably as the Judges would be required to follow the prescribed judicial standards. 3. There is also no legal provision at present that requires Judges of the Supreme Court and High Courts to declare their assets and liabilities. The Resolution adopted at the Full Court meeting of the Supreme Court of India on 7 May, 1997 requires every Judges to declare his assets within a reasonable time of assuming office and thereafter whenever acquisition of substantial nature is made. The Second Administrative Reforms Commission, in its Fourth Report on Ethics in Governance, endorsed the above resolution after noting that independence of Judiciary is inextricably linked with judicial ethics and any conduct on the part of a Judge which demonstrates lack of integrity and dignity

will undermine trust reposed in the judiciary by the citizens and, therefore, the conduct of a judge should be above reproach. In the Writ Petition (C) No. 288/09 filed on behalf of the Hon’ble Supreme Court in the Delhi High Court challenging the order dated 6 January, 2009 passed by the Central Information Commission under the Right to Information Act, 2005, it has been asserted on behalf of the Supreme Court that the Judiciary has no objection to the disclosure of assets of Judges provided this is done in a formal manner by an Act of Parliament with adequate safeguards. In this backdrop, it is considered necessary to enact a law in this regard to meet with the larger public interest as well as ensuring and maintaining the independence of the judiciary. 4. The Judicial Standards and Accountability Bill, 2010 seeks to repeal the Judges (Inquiry) Act, 1968, while retaining its basic features and aims to achieve all the above objectives of creating a statutory mechanism for enquiring into individual complaints against Judges of the High Courts and Supreme Court and recommending appropriate action, enabling declaration of assets and liabilities of Judges and laying down the judicial standards to be followed by the Judges. All these measures will increase accountability of Judges of the High Courts and the Supreme Court thereby further strengthening the independence of the judiciary. 5. The proposed Bill would strengthen the institution of judiciary in India by making it more accountable thereby increasing the confidence of the public in the institution. 6. The Bill seeks to achieve the above objectives.

Highlights of the Bill

The Judicial Standards and Accountability Bill, 2010 requires judges to declare their assets, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. Courts.

• •

Judges will be required to declare their assets and liabilities, and also that of their spouse and children. The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. Any person can make a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’.

A motion for removal of a judge on grounds of misbehaviour can also be moved in Parliament. Such a motion will be referred for further inquiry to the Oversight Committee.

• •

Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised. The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to the President.

Context
The Constitution provides that judges of the High Courts and Supreme Court can be removed only by Parliament on the basis of a motion in either the Lok Sabha or the Rajya Sabha. The existing procedure for investigation into allegations of misbehaviour or incapacity of Supreme Court and High Court judges is specified in the Judges (Inquiry) Act, 1968. Currently two cases are under investigation: Justice Soumitra Sen of the Calcutta High Court, and Justice Court, Dinakaran of the Sikkim High Court (earlier in the Karnataka High Court). Before Court). this the only case under this process was that of Justice Ramaswamy, but Parliament did not pass the motion to remove him. In recent years, a number of allegations of corruption against members of the higher judiciary have been made. In 1997, the Supreme Court adopted resolutions on (a) Restatement of Values of Judicial Life, and (b) In-house procedure within the judiciary. A concept paper on a National Judicial Commission was prepared by the National Advisory Council in 2005.5 The Judges (Inquiry) Bill, 2005 was drafted by the government and examined by the Law Commission. The revised Judges (Inquiry) Bill, 2006 incorporated almost all the Law Commission’s recommendations, and sought to establish a National Judicial Council (NJC). That Bill has however lapsed now.

Key Features
The 2010 Bill replaces the Judges (Inquiry) Act, 1968. It seeks to: (a) create enforceable standards for the conduct of judges of High Courts and the Supreme Court, (b) change the existing mechanism for investigation into allegations of misbehaviour or incapacity of judges of High Courts and the Supreme Court, (c) change the process of removal of judges, (d) enable minor

disciplinary measures to be taken against judges, and (e) require the declaration of assets of judges.

Judicial Standards

The Bill requires judges to follow certain standards of conduct. Complaints against judges can be made on grounds of non-compliance with these standards or certain activities such as corruption, willful abuse of power or persistent failure to perform duties.

Some activities prohibited under the Bill are: (a) close association with individual members of the Bar who practise in the same court, (b) allowing family members who are members of the Bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities.

Investigation Authorities
The Bill establishes three bodies to investigate complaints against judges: the National Judicial Oversight Committee, the Complaints Scrutiny Panel and allows for the constitution of an investigation committee.

National Judicial Oversight Committee: will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court, a Chief Justice of the High Court, the Attorney General for India, and an eminent person Court, appointed by the President. The Oversight Committee shall have supervisory powers regarding investigation into complaints against judges, and also the power to impose minor measures.

Scrutiny Panel: will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. The Panel shall conduct an initial investigation into the merits of a complaint made against a judge. It shall also have the power to report frivolous or vexatious complaints. Persons making frivolous or vexatious complaints can be penalised by rigorous imprisonment of up to five years and fine of up to five lakh rupees.

Investigation Committee: will be set up by Oversight Committee to enquire into complaints. The investigation committee will be set up if the Scrutiny Panel recommends that an inquiry should be carried out to investigate a complaint. The Bill does not specify the qualifications of members of the investigation committee, but leaves this to the discretion of the Oversight Committee.

Complaint and Reference Procedures
The Bill changes the complaint procedure existing in the Judges (Inquiry) Act, 1968. Currently, the removal process may only be initiated by a motion in Parliament. The Bill adds a process to permit any person to file a complaint. Any frivolous or vexatious complaint, if proved, carries a punishment. The proposed changes are given in Table1. Also see Figure 1

Table 1: Complaint procedure and authorities under the Bill and the Judges (Inquiry) Act, 1968 Topic Judges (Inquiry) Act, 1968 Persons complaints Person to whom complaint has to be made National Judicial Oversight Committee (by persons other than Members of Parliament). Subsequent procedure

Judicial Standards and Accountability Bill, 2010 Members of Parliament or any other person.

Members of Parliament (motion

allowed to file presented in either House of

Parliament). Speaker of the Lok Sabha or the Speaker/ Chairman (by Members Chairman of the Rajya Sabha. of Parliament)

The Speaker/ Chairman may set up a three member committee for investigation.

If the complaint is made by Parliament, the Speaker/ Chairman will refer the matter to the Oversight Committee who will constitute an investigation committee. In other cases,

The Committee will consist of (a) one judge from the Supreme Court and one

from among the Chief Justices of High Courts, and (b) a distinguished jurist.

the Oversight Committee refers the matter to the Scrutiny Panel within three months.

The Committee shall prepare a report after concluding its investigation. The report shall be laid before both the Lok Sabha and the Rajya Sabha.

The Scrutiny Panel shall report to the Oversight Committee on whether there are sufficient grounds for proceeding against the judge. Report to be submitted in three months, may be extended by three months.

If the report finds that the charges against the judge are not proved, no further action will be taken.

If the Scrutiny Panel reports that there are sufficient grounds for proceeding against the judge, the Oversight Committee shall set up an investigation committee to look into the complaint (Scrutiny Panel will not be involved if the matter is referred through Parliament). Inquiry has to be completed within six months. The investigation committee shall report its findings to the Oversight Committee.

If the charges framed are proved, the motion against the judge will be taken up for consideration.

If the motion is adopted by both houses of Parliament by two-thirds majority, the misbehaviour or incapacity of the judge is deemed to be proved.

If the Oversight Committee is satisfied that the charges have been proved, the Committee can (a) issue advisories or warnings, or (b) request the judge to resign voluntarily.

If the judge does not resign voluntarily, the Committee shall advise the President to proceed with the removal of the judge, and the President shall refer the matter to Parliament.

The judge may be removed if each House adopts the motion with two-thirds

majority. Sources: Judicial Standards and Accountability Bill, 2010; Judges (Inquiry) Act, 1968; PRS.

Confidentiality and Exemption from RTI

The Bill prohibits participants in investigations against a Judge from revealing any information regarding the investigation or the complaint without the written consent or direction of the Oversight Committee. The Bill imposes penalties on those violating the confidentiality provisions. Anyone violating these provisions may be imprisoned for up to one month, and may also be fined.

The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right to Information Act, 2005. The reports of the investigation committee and the order of the Oversight Committee shall be made public.

Proceedings of the investigation committee will not be open to the public.

Disclosure of Assets and Liabilities

Judges will be required to declare their assets and liabilities, and also that of their spouse and dependent children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. In addition, every judge will have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.

PART B: KEY ISSUES AND ANALYSIS
There are four main issues with regard to the Bill: (i) the composition of the bodies established to judge judges; (ii) whether provisions on confidentiality and penalties for frivolous and vexatious complaints deter persons from complaining against judges; (iii) whether minor measures can be imposed by a body comprising of non-judicial members, and (iv) whether judges should be able to appeal against orders removing them.

Judging the Judges
Composition of authority tasked to remove judges The key issue is to find a balance between holding judges accountable and maintaining the independence of the judiciary. The Standing Committee on Personnel, Public Grievances, Law and Justice, and the Law Commission have examined these issues in light of the Judges (Inquiry) Bill, 2005 and 2006. The composition of the bodies established to judge the judges needs to reflect this balance. The Judges (Inquiry) Bill, 2006 proposed a National Judicial Commission only of judges. The Law Commission report agreed with the composition of the Commission. The Standing Committee proposed that the Commission should be broad-based to represent members from the executive, legislature, and the Bar. They argued that if there was a problem regarding non-judicial members, an alternative mechanism should be set up. The alternative would be to have a broad-based committee to conduct preliminary investigations. Such an Empowered Committee should consist of members from the judiciary, executive, legislature and the Bar.6 Bar.6 The Oversight Committee in the Bill differs from the recommendations of the Standing Committee. It now consists of three judicial members and two non-

judicial members. The two non-judicial members are the Attorney General (appointed by the executive), and an eminent person to be appointed by the President (executive’s nominee). There is no member of the legislature in any of the authorities proposed in the Bill.

Table 2 compares the composition of suggested judicial oversight bodies in India.

Table 2: Composition of Suggested Judicial Oversight Bodies in India

Judges (Inquiry) Standing Committee Bill, 2006 and Law Commission Composition • Chief Justice of India;

2010 Bill

Recommended a broadbased committee consisting of members legislature, and the bar; or,

The National Oversight Committee has members from the judiciary and the executive;

Two senior- from the executive, most judges of the Supreme Court; The establishment of a broad-based empowered committee to conduct initial screening of

The Scrutiny Panel doing initial screenings is composed entirely of judges;

Two Chief High Courts.

Justices of complaints.

The composition of the

investigation committee is not known. Sources: Judges (Inquiry) Bill, 2006; Standing Committee on Personnel, Public Grievances, Law and Justice; PRS. The basic features of some judicial oversight bodies in other countries are summarised in Table 3.

Table 3: Judicial Oversight Bodies in Some Countries Investigation Body Qualifications Authority to England Judicial Appointments & Wales Commission & Canada Ombudsman Two oversight commission members and appointee of United States France Justice Minister Judicial Council Judges Judiciary & Legislature Oversight commission remove judges Lay person with no legal Legislature experience Judges Legislature

Oversight commission Judges, prosecutors, & three who are neither judges nor of the legislature Judges

Germany Federal Constitutional South Africa

Federal Constitutional Court Executive, after a thirds of the legislature

Court Oversight Commission Ministers, legislators, and judges

lawyers, law professors, resolution by two-

Sources: 195th Law Commission Report; US Court of Appeals; PRS.

Composition of Scrutiny Panel
The Bill provides that judges from the same High Court shall first scrutinise whether a complaint against a judge needs to be investigated. It does not provide a review mechanism by the Oversight Committee if the Scrutiny Panel decides that there is no merit in the complaint. In 1997, the Supreme Court adopted a different in-house procedure for inquiring into complaints of misbehaviour against judges. It stated that the inquiry committee would consist of two Chief Justices of High Courts other than the High Court to which the judge belongs, and one other High Court judge. This procedure ensured that judges of the same High Court would not sit in inquiry against a judge. Table 4 compares the current in-house procedure and the procedure proposed in the Bill:

Table 4: Composition of committees under the Supreme Court’s 1997 Resolution and the Bill. Supreme Court’s in-house Judge of the High Court Bill

procedure Two Chief Justices of High Courts Scrutiny Panel. Headed by a other than the High Court to other High Court judge. Three judges of the Supreme Court. Investigate and recommend penalties such as withdrawal of work, public censure, warnings, Report to Oversight Committee whether further investigation is necessary. former Chief Justice of that High judges of that court. Same as above. which the judge belongs, and one Court and two other sitting

Judge of the Supreme Court judge Role

etc. Sources: 195th Report of the Law Commission of India; Judicial Standards and Accountability Bill, 2010; PRS. The report of the Standing Committee on the Judges (Inquiry) Bill, 2006, had proposed a screening body with wider representation. It suggested that the body have representatives of the judiciary, legislature and the Bar. The major

reasons it had given for the proposing this ‘Empowered Committee’ were: (a) it would be an impartial, wider representative body, (b) it would provide for the screening of complaints at an initial level; and (c) wider representation would ensure credibility and transparency.

Penalties for frivolous complaints
The Bill requires all complaints to be kept confidential. Any breach of confidentiality carries a penalty. In addition, a vexatious or frivolous complaint, if made in public, may also be penalised under the Contempt of Courts Act, 1971. These two safeguards protect a judge from defamation. However, judges cannot be defamed if complaints are kept confidential. Therefore, the need for an additional safeguard against frivolous complaints may be questionable. The quantum of penalty is significantly higher than for other similar offences. The Contempt of Courts Act, 1971 provides for simple imprisonment for up to six months and a fine of up to Rs 2,000. The Judges (Inquiry) Bill, 2006 (and the Law Commission report) had proposed a maximum penalty of simple imprisonment of up to one year, and fine of up to Rs 25,000. The Bill imposes a penalty of imprisonment of up to five years, and fine of up to five lakh rupees.

Constitutional validity of minor measures
The Bill allows for minor measures to be imposed by the Oversight Committee in some cases. These are: (a) issuing advisories, or (b) warnings. The Supreme Court and the Law Commission7 upheld the constitutionality of minor Commission7 measures in the context of oversight bodies composed entirely of the judiciary. The Law Commission viewed the imposition of minor measures as an in-house process. This would not be an encroachment by the executive or the legislature since such power is vested in ‘peers’ within the judiciary.” The Oversight Committee proposed in the Bill consists of members from the executive as well as the judiciary. It is therefore not clear whether this can be

viewed as an in-house process and whether it violates the constitutional safeguards of the independence of the judiciary. Right of a judge to appeal to Supreme Court against removal In a 1993 judgement, the Supreme Court has held that a judge can seek ‘judicial review’ against an order of the President removing him. The Bill makes no mention of whether a judge who has been removed has a right to appeal to the Supreme Court. Therefore, based on this judgement, a judge will have the right to appeal to the Supreme Court to review the order of removal passed by Parliament. The Standing Committee had stated that there should not be any provision for appeal as the finality of a Presidential order should not be challenged. ***************

Part III
Thought Provoking Views Judiciary – Present Condition and Future Direction Caste Religious Conversion Secularism Women Ram Rajya Compromises & Contradictions in the Constitution Principles of Equality in the Constitution Barriers to Indian Nationality Education Educational Institutes Privatization of Education Teachers

Judiciary – Present Condition and future direction.

The

views

expressed

by

Justice

Chandrashekhar

Dharmadhikari, in his latest book, “Bharatiya Naya PranaliDasha aani Disha” (Marathi) are summerised below.

Shri Veerappa Miolee, the Law Minister of the Government of Indian in his speech on 29th November 2009 at Yevatmanl in Maharshtra said: “The Government has proposed to introduce changes in the judiciary for the benefit of the masses. In this respect, he cited the examples of Samudraman and Dashavtar from the mythology. He said good things came out of the churning of ocean. During Vedic period, Dashavtar emerged one after the other. Every new “Avtar” was progressive than the previous one. This is being made the basis for the contemplated changes. However, though the change is necessary, it has to be with the stability. It is necessary to adopt new ones by retaining some of the old.” Referring to the two crore and seventy lakhs pending cases in various courts, the Law Minister said: “The central Government have decided to launch a drive and formulated a new policy. The Government has prepared a plan of action to strengthen the courts in order to dispose off the pending cases within a period of three years. This includes village courts, mobile courts, commercial courts etc. in these courts, there will be system to decide the cases in six months. It is necessary to build up the confidence of people in law so as to establish the rule of law. Equal distribution of resources is necessary to render uniform justice to people. The place of judiciary is supreme. It is a must in the democratic and secular set up of the Government. Today, the last segment of society is waiting for justice. The Government is committed to take steps to give justice to women, children, senior citizens. The proposed thoughts and plans appear to be good, but the common man is doubtful of its implementation. In view of this, it will have to be considered whether the change will at all take place. Besides, the poison that came out of the churning of ocean was gulped by Shankara. The speech of the Law Minister echoed these feelings. The Judiciary will have to play the role of Shankara.

The Judiciary will also have to play the role of “Neelkantha.” This seems to be the attitude of politicians and political parties. Ultimately, all sorts of blames will be laid at the doors of Judiciary. The constitution of India envisages total freedom, fearlessness, impartial and Nirvair judiciary. It is the basic structure of the constitution. Freedom does not mean to act at will. Elicitating the limitations of God, Shankaracharya has said that God has also to adhere to the rules of ethics. Besides, Gandhiji’s concept of Trusteeship too applies to judiciary. Judges are the trustees of the people, they are not sovereign masters. The difficulty of the common man is that the judiciary blames the Government for delay and vice versa. The Chief Justice of India in his address on 12 th December 2009 at Banglore said: “The people will revolt, if the serious not of the delay occurring in the delivery of judgments is not taken. As a result the whole judicial system will collapse.” The Chief Justice further said: “People have faith in judiciary. They feel that if not today, someday they will get justice. But the million dollar question is how long they should wait? The number of the courts and judges are not adequate in the country. The State Governments do not seem to be taking initiative in this respect. He insisted on negotiations and arbitration. Giving the example of China, he said that in China, only 20 % disputes reach the courts. 80 % disputes are settled through negotiations and arbitrations. In India, although the exact figure is not available but not more than 5 % disputes are settled through negotiations and arbitrations. “People take law into their own hands, because of the inordinate delay. To get quick justice, people take shelter of goondas/mafias, who somewhere in the chawls hear the disputes and give their verdict, which is instantly accepted as it takes place in one sitting. Such Darbars of mafias are gaining momentum. This is also a sort of revolt. The police will arrest criminals/culprits. The courts will punish them. But since there is no guarantee of arrest and punishment, people themselves beat the criminals. It is a blow at the root of the independent judiciary provided in the constitution. Judiciary is the basic structure of the constitution. If the basic structure is collapsed, the principles of democracy will collapse. It is unfortunate that there does not seem to be realization of this.” Today, judiciary is criticized from all quarters. I welcome this criticism. Because people criticize only those from whom they have hopes and

expectations. There is no use of criticizing the system which is hopeless and beyond repair. It is true that there is delay in getting justice. Are the courts alone responsible for delay? In Adversary system of Judiciary one party always wants delay. In the dispute between employer and employees, the employer wants delay. In the dispute between house owner and tenant, the tenant wants delay. The various methods are invented for this with knowledge of lawyers. We do not want to build up social structure based on justice, although the constitution has made certain provisions in this respect. We do not want to set up judiciary, which has roots in the soil of the land. The works of the men in power and established ones are easily done outside the courts. So they find courts hindrance in their way. The cases which are filed or are pending in the Supreme Court and the High Courts, the Government is invariably one of the parties. The largest numbers of cases are against the Government. The Government party is responsible for delay. But the same is in the forefront to criticize the judiciary. The Government attitude is: “We will not do anything. We will not make the appointments of the Judges well in time. We will not bring desired changes in the Judiciary. We will not provide adequate facilities. We will not extend cooperation and assistance and yet we will mount one sided criticism and adopt all sorts of avenues to malign/spoil the image of Judiciary. We will create an atmosphere to show that the Judiciary is a blocked in the way of development. The Government policy seems to place the Judiciary in the dock. The courts are used by wealthy people as a weapon of exploitation. Four Ms. Money, Muscle, Mafia and Media are more powerful than the rule of law. Even today, laws are enacted in a language that is foreign and unknown to the vast majority of Indians. The common man is not aware of laws, which are enacted for his benefit. He has no means to know it. As a result, his ignorance of law is exploited. He is punished for breach of a law which he never knew. Unless we have a participatory, decentralized, speedy and affordable judicial system, right from the grass roots level, a poor man can never get justice in the true sense of the term. In our country in religion the straight roads are less than short cuts to use them for wrong causes. They misuse judiciary to harass and exploit common men and on the top of their voice they condemn judiciary. It appears that there is a well planned conspiracy. The judiciary has limitations in plunging in the controversy. In this

connection the critics should at least understand that to remove mosquettos from a temple the whole temple should not be set on fire to drive out the mosquottos. They must maintain the sanctity of the temple. But this much rationale is not visible. In view of this, some people in the judiciary think that howsoever they try to have judicious mind, the one sided criticism is bound to be there; then why should they bother of the criticism. They cannot be blamed for this attitude of theirs. This will have to be considered some time. Of course, this does not mean that judiciary never commits mistakes. However, whoever is at fault, the ultimate sufferer is common man. Now a days nobody is interested in justice. When the judgment is in favour, then the justice is said to have been done; if it is against, it is injustice. It is also said that the judiciary transcends its jurisdiction and interferes in the domain of Government. But the Government forgets that rights carry with it the corresponding duties. And if the Government fall short of performing duties, where should the common man go except the courts of law. Should they remain silent spectators to suffer injustice. This situation is against the principles of democracy. This will be contradictory to the basic structure of the constitution. There are some limitations of judiciary - nay there are limitation of the Rule of Law. Law can never stand on its own. Laws cannot be implemented in the right spirit until and unless peoples’ acceptance. Law paves the way, but it cannot induce to go on the way paved. It is drawback of democracy. Judiciary is necessary to keep axe on anarchy, misuse of power and corruption. There is need to have powerful and independent judiciary but the established elements do not have mental setup for this. They have created parallel centre of power by using money power, muscle power and mafia power. Now the media power is added to these Ms. We forget that in judicial system there is no reward or prize for good conduct, it is normally expected that the judges exhibit good conduct. There is punishment for bad conduct or crimes. And that is for the establishment of honesty, good conduct and status. This is with a view to bring discipline in place of punishment. But today, normal rules have been given go-by. Nowadays honesty, good conduct have become news for news papers. Prison, court and police are the three wings of administrative system. To keep away from this as far as possible are the symbols of status but today social mental setup is changing. Criminalization of politics and politicalization of criminals is rampant.

In a society where the bad elements (durjan) are active and the sane elements (sajjan) are passive, how can we stop Draupadi’s Vastra-haran. Now the whole society appears to have been won by Kauravas and nobody feels ashamed of it. In the existing judicial system the judgements depend on the oral and documentary evidence. But in our religious and spiritual country, there is hardly a witness who speaks cent percent truth. Even respectable people whom one has learnt to regard as the symbol of honour in their ordinary everyday life, will tell their faced lies for a trifle in a law court and think nothing bad of it. The canker is eating into the vitals of our village life. The entire village knows who has committed the crime and on whose side is the justice. But case is so made that the court should not know the truth. My own experience about the Lok Adalat is this that the witness does not dare to speak lie in the presence of the whole village. Because he is afraid that it will bring disgrace and humiliation to him. Therefore, Participatory Judiciary system will have to be adopted. The motto of our country is Satya Meva Jayate. The judges do not have their own independent and autonomous machinery to find out truth. They have to render their task by taking help of administration and police. In the prevalent judicial system, it is not possible to have cheap, easy and quick justice. The lawyers charge exorbitant fees, language of the law makes it difficult for the common man to get justice. Besides, media without understanding the provisions of law create such an atmosphere that they are not only the investigating agencies but they are the one to deliver justice. They decide everything and create uncontrollable situation outside the court. The drum beaters who like to see their face in T.V. instead of mirror not only help them but take pride in doing so. The courts have to give judgment on the strength of the evidence produced before it. The courts cannot take for granted the statements made by the culprit or the witness before the police or the media. There is, on the whole, race in creating obstacles in the way of the courts. Whatever the Government proposes to give today is a top dressing. There is lot of borrowing in it from the foreign countries. The diversity, the differences in religions, castes, sex, colour and creed found in our country are not there in other countries.

The patchwork will neither solve the problem nor bring about uniformity. All the political parties today want to clip the wings of the judiciary, when their own wings are not sound. Of course, the courts are also responsible. But it is relevant to say as to who is responsible, because the effects are to be borne by common men. All sides will have to be taken into account by keeping common man at the centre. There should be nothing concealed in the life of a judge. His personal life, conduct and character should be above board. It is necessary for the retired judges to follow the code of conduct. The common men evaluate the judicial system. It is not correct to say that the defects of the society will penetrate in the judiciary. Because it is generally believed that the cream of the society is selected in the judiciary. The milk spoils, but the cream or butter does not spoil. The Sant Eknath has described Nyayamurti by saying, Jagachiye netri disto sansari Pari to antari sphatik shuddha. The code of conduct has been laid down for the judges since 1997. It is expected of them that they will faithfully follow the code of conduct. There were no rules earlier with regard to leave and leave travel concessions for the judges, as the judicial work was considered as the most pious and the judges never used to avail of leaves. Now the rules have been framed for that purpose, the post of a judge has no more remained a post for sacrifice. It has become a post for enjoyment. This has shattered the respect for them and this is the real tragedy of tragedy. Acharya Vinoba Bhave is considered as spiritual heir of Mahatma Gandhi. He expressed his view on judicial system. He says: “I am afraid of using the word justice. It is an ordeal to give justice. Imagine that a judge has given correct judgment in 99 cases out of 100. He is paid for that and therefore he does not derive punya for that. But suppose that in one case injustice has been done, which he does not do intentionally, he is blamed for that. He has to deliver judgment on the basis of evidence produced before him. There is a dictum: Rajantya Narak Praptiha: In ancient days the courts were under the king. India had its own justice i.e. Paanch Bole Parmeshwar. Now a day’s justice is imported from outside courts. Teen Bole Parameshwar: Chaar Bole Parmeshwar. This is imported justice. We must export it. It has been said in Vedas:

“Anujananan Bhadate Panch Dhariha” The learned, intelligent and experienced persons in the village used to render justice with the assistance of village Panchas. This was the system prevalent in ancient times. All this was said by Vinoba. That is why he had accepted Gramdan as the criteria of judgment. It brings satisfaction instead of justice. Vinoba settled scores of disputes in Telangana by adopting this method. There is a rule of the court that everybody should accept his fault and if there is no fault, he should proclaim it. That is why I use the word ‘satisfaction’ rather than justice. Justice is done by God, who cannot look into the hearts of others. We cannot commit sin. We are sinners. We must have satisfaction. Vinoba believed in Adalat Mukti. He used to say that the law is like a steam roller. It keeps on pressing. It does not have rationale. Whatever laws are made to render justice, injustice takes place somewhere, because of the differences in the various provinces. The laws are the same and uniform. The laws can reform the society is a wrong concept. It is an ointment to be applied from outside. To cure the disease one needs internal treatment. People even do not know, what is the law. Even the lawyers do not know the changes that have taken place in the laws. The question of bringing them in application does not arise. Therefore, the new laws remain in books only. The result of all this is big zero. At times it creates adverse effect. This is not desirable. The change cannot be brought through laws. Vinoba believed in Government free and self-disciplined social order. He wanted Government by people and not by State, which would be real democracy. Many considered the thoughts of Gandhi and Vinoba as impractical and outdated. The social order should be based on Adalat Mukti and Tanta Mukti. This should be the direction to build new social order. Besides, we will have to think as to what should be basic role of this State i.e. respect for law or fear of punishment. This will have to be an inspiration of the executive. Today law is followed because of the fear that is why we hide ourselves in corners. Various loopholes are found out to run away from the laws. Today law breaker has more prestige in the society than the follower of laws. And therefore the million dollar question is whether we want to have the rule of law.

The views have been taken in brief from the Swami Ramanand Lectures delivered by Justice Nanded. Dharmadhikari at

Caste
In Hindu society caste is the reality and ‘Hindu’ is a fiction. What is a caste? A person acquires his caste in the womb of his mother. He cannot renounce it even after his death. A caste is a permanent acquisition. That is why even a dead body has a caste in this country; and we do not allow persons belonging to other castes to touch a dead body. In short, the more a person stays away from fellow human beings, the greater is his status in society, the more sinless he is considered to be. The Hindu idea of purity or sinlessness cannot countenance physical contact with the lower castes. Purity based on untouchability is not purity; it implies a contemptuous and divisive attitude towards others. The Hindu doctrine of purity and religiousness was based on the unsocial principle of untouchability. The rules governing social intercourse were basically anti-social and exclusivist in character. Man’s status in life was determined by his birth. Since caste cannot be changed in a single birth, castes which were considered low by reason of birth developed hatred and contempt towards rest of the society. Castes which were considered high by reason of birth and which acquired, as it were, a birth right to dominate other castes naturally strove to foster and perpetuate the caste system since it served their interests. The peculiar thing about caste is that unless those who benefit by the caste system reject it, it is just impossible to destroy status based on birth and power buttressed by caste.

Different castes in India are basically provincial in character. One province would not be even aware of the castes in another province. The orthodox Hindus recognize inherent right of scriptures to control the social life of the Hindus, but even those scriptures cannot throw light on the exact number of castes that originally existed in India. In fact, it was the British who drew up the first complete list of castes in India when they collected information for the census. Under these circumstances, a society fragmented by castes and sub-castes cannot possibly operate a democratic system based on adult franchise unless different castes are persuaded to pull together and integrate with each other. I do not think one could find anywhere in the World such a bewildering variety of sects, customs and rituals as in India. That is why we have lived next to each other for thousands of years, but we have never been able to live together. The layouts of our villages and towns have not changed. The socioeconomic map of a village still remains unchanged. There are neighborhoods and lanes based on caste groups. People belonging to different sects lived as neighbors, but never in a feeling of togetherness. Brahmin-untouchable, HinduMuslim, Parsi-Christian, Marathi-Gujarati, Assami-Bengali, retained their separate identities. Our perennial problem has been to overcome these separate identities and persuade people to live together as pure and simple human beings. Our democratic system stumbles on this very tradition bound separatism. Universal adult franchise will succeed in our country only to the extent that secularism takes root in our social life. Our problem is not restricted to differences in castes. Implicit to caste differences are ideas of superior, inferior status. Castes are not only different, but some of them consider themselves superior to others. Until such time that we get over these differences in terms of status there is not even a ghost of a chance for universal adult franchise. Our traditional idea of purity is divisive. A person is deemed pure if he does not eat food except that prepared by a brahmin, more pure if he does not dine out at all, still more pure if he eats food cooked by his wife only, and the purest if he eats no other food than the one prepared by himself. This divisive idea of purity is the distinctive characteristic of our caste system. Unless caste differences are abolished, common people and the underprivileged will not feel that freedom is meant for them. In order to understand this, it is necessary to know the distinction between love for the country and love for the nation. In our society, people from the so called upper castes have great

love for the Land. The problems of land and boundaries are of immense importance for them; but the nation is not just land, it is a human entity. During the freedom struggle the aspiration that was nurtured was that each one should feel a kinship with everyone belonging to this country. It is only when this aspiration becomes an everyday reality that love for the country would attain the quality of love for the Nation. No one would be allowed to take the stand that he would have the land and would not care even if people living on it migrate to another country. We shall have to imbibe in ourselves a love for our people. Such a way of life is called living together and not just living as neighbors. Whether others want to live with us is immaterial, the real question is, “do we really desire to live with them?” This determination is basic to the making of a Nation. The true national feeling emerges only when people belonging to different parts of a country are inspired by a genuine desire to live together. We have in our country a powerful caste-system which divides people. Our history tells us that religious conversion is no answer to casteism. Despite conversion the caste persists in the new religion. The result is that there are more castes than before; one caste group in the new religion and the remnant in the old. This is nothing but division and multiplication of existing castes! These castes are based on blood relations. However, one may talk against them, blood relations cannot be changed. You enter a caste only on the strength of your birth, otherwise the access is barred. You cannot enter a caste from outside. All relations and interests are within the caste-fold and therefore it is next to impossible to desert or to get out of a caste. This powerful fortification cannot be demolished except by very powerful measures. Inter-caste marriages are too few in number to make even the semblance of an impact on the caste system. Some, therefore, advocate a statutory ban on marriages within the same caste. It is quite obvious that such a ban would go against the very grain of a citizen’s freedom but the protagonists of this view argue that there is no other way of abolishing a system which has become a part and parcel of our blood-stream. In short, equality is meaningless unless the monstrous caste system is destroyed. It was hoped that the backbone of the caste system would be broken with the progress of science and technology. Various scientific inventions brought about a revolution in the means of communications and the world was geographically brought nearer. The distance between two countries is now measured not in terms of miles or kilometers but hours. We now speak a new language; that we can move from one place to another in so many hours and

minutes. Science has established that blood of the human race can be classified into definite groups, that the blood group of an American Negro or an Indian untouchable, a brahmin or a sweeper, a black and or a white, can be the same, that the same blood flows in their veins. For a person in need of blood transfusion, the parents blood might not suit but that of a sweeper working in the dispensary might match and end up saving the life. Despite these obvious facts of life, how often some of us brag and boast that the blood of Shivaji, Rana Pratap or Subash Chandra Bose flows through our veins? Most of our relations are blood-relations. Blood relation is the foundation of the caste. Even now we celebrate with fanfare certain occasions peculiar to particular castes. We forget that the thread ceremony imparts to a little boy’s mind ideas of superiority based on birth. A friend of mine explained to me the interesting difference between a house and a bungalow. In a house the kitchen is inside and the toilet room outside, so that sweeper can clean it without entering the home, whereas in a bungalow the kitchen is outside and the toilet room inside; look at the bungalows in the civil lines of a city and you then understand the truth underlying this statement. With the advance of science, the technique of house construction has changed. In the new self-sufficient house, the toilet room is usually located near the kitchen. Every bedroom has now an attached bathroom and a toilet; and yet an orthodox mind which can tolerate a toilet near the kitchen will not permit a sweeper to enter the house. On festive occasions and religious gatherings friends and relatives are invited but do we invite the sweeper-woman who cleans the toilet or the domestic servant who sweeps the house? Are they not human beings? Mind you, this is not peculiar to the Brahmins or the upper castes. Those who criticized the Brahmins for their orthodox ‘Brahmanism’ take pride in copying them and perpetuating their Brahmanism. After independence the government has to organize schemes like ‘one-village-one well’. Even today Harijan women are molested in broad daylight, but the community at large tolerates them without sense of shame. We have not been able to chalk out a scheme to prevent these dastardly activities of the high castes. We have not made stringent laws to fight this evil nor are we serious about implementing the laws already on the statute book. I have a feeling that we do not sincerely want to put an end to this evil. Though the colour of the blood and the blood group is the same, the colour of the skin is different. Skin-colour and not blood, proved to be a more binding relation. That is why many thinkers have expressed themselves strongly that at

least for sometime a statutory ban in the same caste-marriages should be imposed and inter-caste marriages should be made compulsory. Such drastic steps, they think, are necessary for abolishing casteism and social divisions. When I say that some things need to be done by the force of law, it does not mean that I have full faith in law as a means of social change. No law can be implemented without the backing of public opinion. We are, by tradition, used to observing some laws and violating some others. If laws are enacted, the process of change can be accelerated. The rest of the work can be carried out with the support of public opinion. The real question is whether peoples’ representatives who have an implicit faith in tradition will agree to such laws on the statute book. When a problem is tough and demands immediate action, many people hope that radical legislation might pave the middle way for its solution. The backward castes find solace in such legislation. They honestly feel that there are at least some forces in their favor and that these are devising ways and means to facilitate the solution of their difficulties. They can then take the next step with confidence. Under such circumstances, law gives breathing time and opens up an avenue to those who want to forge ahead. Before the advent of the British, India was never a single unified country, nor was the principle of equality before law recognized. On the contrary, in social life for the same offence a Harijan was meted out a different punishment from the one given to a Brahmin. Because of sharp social divisions, social boycott was the ultimate means of punishment. Our entire social structure was based on divisions between man and man-rich and poor, land owner and landless. Caste and religious differences were universal. Neither equality nor equal opportunity ever existed in our society. In fact, millions died without an opportunity of any kind in their life time; that is why when we started thinking about our Constitution, our deliberations were dominated by the idea of equality. Equality was the urge of the common people of our country. I was born in an orthodox Brahmin family, but my father did not perform my thread ceremony. On the day on which he decided to renounce the caste, he also made up his mind not to observe those religious practices which were the prerogative of a few high castes. If the thread ceremony was desirable, in Brahmin, the sweeper also must have the freedom to practice if he so chooses, also the women. If religious sanction to thread ceremony is restricted to a few castes, then thread ceremony is obviously not desirable because it creates caste supremacy and barriers. When I was to be married my father realised that I could

not be married, according to Brahmin rites as he had not performed my thread ceremony. Even in the case of marriages, we have caste wise customs. The Hindu religion does not prescribe a common marriage code for all castes. My servant’s son could not be married the same way as I was married. My brothers and I were married as per the procedure laid down by the Special Marriage Act. This is known as civil marriage which is open and available to all persons. It is common for all. My father could not cherish the idea of entering Grahasthashram via a ceremony which is peculiar to a particular caste only and is not universal. We did not have to spend more then twenty two rupees for this marriage. My father disliked extravagant expenditure on marriage ceremonies. He never attended marriage receptions where dowry was paid. He was a man of status, being a member of the State Legislature and the Constituent Assembly. He was of the view that social leaders and men of status who have the capacity to spend ought to give the lead to the community by their personal example of austerity and simple life. The vested interests of some people were safe in the traditional society. To them caste was a convenient proposition with which to fortify their interests. That is why the clever and veiled casteism of the upper classes is unquestionably reactionary. No defense is required of the ‘casteism’ of backward or dalit castes. All casteism or communalism is bad, but the casteism of backward classes to some extend, is necessary to tear asunder the shackles of slavery imposed on them by a caste-ridden society. Its object is to bring about their economic progress. Such casteism is to some extent a progressive force in society. We must learn to condone the casteism of these exploited backward castes, at least for sometime to come. Let us not ignore the caste hierarchies of our society. Social groups that are socially backward are blighted by a double backwardness in that they are also economically backward. The social inequities of the caste system are also reflected in economic matters. A caste-society is, thus, an economic organization too, which is why the Supreme Court had to accept the view that one cannot consider caste to be irrelevant as a criterion of backwardness. The following observations made by Shri P.B. Gjendragadkar, former Chief Justice of India, in this context, are very significant. “The groups of citizens to whom Article 15 (4) applies are described as classes of citizens not as castes of citizens. A class, according to the dictionary

meaning, shows division of society according to status, rank or caste. In the Hindu social structure, caste unfortunately plays an important part in determining the status of citizens. Though according to sociologists and Vedic scholars, the caste system may have originally begun as an occupational or functional basis in course of time it became rigid and inflexible. The history of the growth of the caste system shows that its original functional and occupational basis was later overburdened with considerations of purity based on ritual concepts and that led to its ramifications which introduced inflexibility and rigidity. The artificial growth inevitably tended to create a feeling of superiority and inferiority and to foster narrow caste loyalties. Therefore, in dealing with this question as to whether a class of citizens is socially backward or not it may not be irrelevant to consider the caste of the said group of citizens…… Social backwardness is, on the ultimate analysis, the result of poverty to a very large extent. Classes of citizens who are deplorably poor, automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness’ of citizens. “The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of persons. In a sense, the problem of social backwardness is the problem of rural India and in that behalf, classes of citizens occupying a socially backward position in rural areas fall within the purview of Article 15 (4) of the Constitution of India.” In order to enable these backward classes to achieve rapid material progress, various state governments have been giving them different kinds of special concessions. These concessions are meant for equalization of the starting point. An unfortunate development is the desperate tendency of practically every caste to get itself included in the list of backward castes. This is an indication of the obvious fact that the entire country is backward. This tendency is not as harmless as it seems on the surface. When one sees the keen competition amongst various castes to establish their backwardness in the eye

of the law, one naturally gets suspicious about their bona fides. We had to make special provisions in the Constitution for the backward tribes and castes because the rest of the community does not feel that it is duty bound to help these backward sections of our society. It is unfortunate that class hierarchy has now entered in backward castes also. Therefore, fruits of concession are not available to the backward persons in the same caste or class; it being robbed by the forward class amongst the backward class, which is known as creamy lair. The sub-casteism is becoming a reality in these castes or classes.

Religious Conversion
Equal regard for religions implies that all religions are creations of the same God and have equal status and validity and, therefore, all religious conversions are meaningless. There have been religious conversions time and again in the course of India’s history. Those who spearheaded these conversions were fired by a fanatic zeal for social transformation. Muslims converting others into Muslims or Christians converting others into Christians obviously considered their social organizations to be superior and therefore were pledged to replace social organizations of other religions by their own. “My religion is the true religion, yours is a hoax”. Such was the fanaticism of the religious proselytizers. As well said by Mahatma Gandhi: “To change one’s religion under the threat of force was no conversion but rather cowardice. It was a travesty of true religion to consider one’s own religion as superior and another’s inferior. Conversion without a clean heart is denial of God and religion.” To accept the position that all religions are equally true one has to be tolerant, one has to acknowledge the strength of other religions and accept the limitations of one’s own religion. Customs and social organizations are not part of religion. Religion establishes man’s relation with God and not with society. If religious tolerance is to become a way of life it would be necessary to declare all religious conversions statutorily illegal. Since what right and freedom of conscience means was not sufficiently stressed, it escaped the attention of our Constitution-makers. How to declare conversion illegal while recognizing the right to religious freedom is a problem of law-making. It is possible to enact laws for the said purpose; it will have to be admitted that our Constitution is silent on this point. However, that such a right or freedom will not include forcible conversion is now made clear by the Supreme Court; because it is not a voluntary change of faith.

Economic backwardness and social exploitation were the basic causes of religious conversions in India. The tendency was to regard conversion as inevitable necessity under the stress of circumstances and to use it as a means of social transformation. Where there is poverty and social distress, caste and communal divisions there is a fertile ground for religious conversion. It is wrong to presume that such conversion is a genuine act of faith. There are quite a few people who change their religion in order to be able to marry those whom they love. Probably, it is more a result of passion rather than prudence. If all religions are equal and if an individual can reach God via his own religion, where is the need for conversion? It is not possible to establish a secular state unless religious conversions are sternly looked down upon. The principle of a common civil code for all Indian citizens has been incorporated in the directive principles of State policy of our Constitution, primarily to prevent conversion arising out of social compulsions. Such a common civil code, it was thought, would establish normal relations between man and man and make religious conversions and social change unnecessary. Once it is accepted that all religions are equally right or wrong, any attempt at proselytization must be considered a social crime. Religious coexistence is not possible if all religions are not considered equal. If India is to become a genuinely secular polity beyond caste and religion, we will have to seriously consider the question of religious conversion. Howsoever reactionary, religion has a powerful influence on people. The spiritual inspiration of religion is an altogether different question. Spiritual urges do not and cannot cause religious conversions. A person who is spiritually inclined establishes his own relation with God summoning all inner force at his command. He is not bothered about mundane matters which interest us, the ordinary individuals. The spiritual regeneration of man has never been a relevant consideration for those groups and organizations which as religious zealots are out to convert people. Pressures and temptations cannot bring about spiritual salvation. The forces behind religious conversion are temporal and worldly. In the past, feudal conquerors thought it important to impose their way of life on the conquered people. The conquered people on the other hand hoped to regain their nationhood on the strength of religious appeal. In Modern times, religious conversion has been a form of struggle against social exploitation. In a

democracy, since numbers count, every religion has a tendency to increase its numerical strength through proselytisation. So long as different religious faiths try to enhance their strength through conversions, religious tensions will continue to exist in a society. Therefore, some thinkers hold the view that secular State cannot be established till religious conversion is banned by law. Under a system where elections are won and political power captured through sheer strength of numbers and pressures generated to solve problem, there is a built-in incentive to religious conversion. Such tendencies have to be fought by imposing a statutory ban on religious conversion argue these thinkers. They seem to hold a clear cut view that religious conversion should be statutorily banned if we want to eradicate the tendency to capture political power by winning elections and to solve problems by resorting to pressure tactics based on strength of numbers. There are two obvious dangers of imposing a statutory ban on religious conversion: (i) such a statute will give a sense of security and numerical strength to the majority religious groups, and (ii) the minority religious groups feel that it is their fundamental right as citizens to be able to change over to another religion. If religious conversion is to be banned, it would be necessary to put an end to the interference and influence of religion in worldly matters in the social relations between man and man. In other word, we shall have to accept the supremacy of a common civil code—common to all people, whatever their religion. Otherwise, a mere condemnation of religious conversion would be tantamount to accepting a theocratic State in practice and a certificate to the outlook of the majority religious groups. One has to take note of this danger. Besides, if we accept the right to religious freedom as a fundamental right of a citizen how can we reconcile it with a ban on voluntary religious conversion, because a person who has no dignified place or prestige obviously wants to abandon that society and adopt one where he will get respect and equal treatment. Where caste is reality that cannot be changed, the only alternative left is conversion, that is change of one’s religion. In reality it is change of society, rather than religion. We concede the right to religious freedom to the individual with the hope that thereby he would be emancipated from the tyranny of religious organizations. In practice, this hope is rarely fulfilled, because religious freedom is abused for religious conversion and religious conversion is a useful ploy in the politics of numerical strength. Our struggle for freedom did not take an

unequivocal position on this issue. As a result, our Constitution is vague on this question. If equality is to become a reality of life, we shall have to solve this problem some day or the other. Pity towards all beings and idolatry are part of our tradition. But there is no place in this tradition for service to humanity or fellow-beings for establishing social relationship between man and man and his salvation here on this earth. This is obvious in a caste ridden society which shuns equality and equal treatment. The caste system is non-conductor, as it separates man from man where all the pious and good acts of life are meant to reserve one’s seat in the heavens. It is not Parmarthik but is Parlaukik A rich trader will feed ants with unadulterated sugar, that way he ensures a place for himself in the heavens. He feels he is doing his religious duty. But he does not mind selling adulterated sugar to his customers. He does not at all feel that he is thereby acting against the dictates of religion. His action, he thinks, in no way comes in the way of his spiritual salvation. That is why we have in our society a custom sanctified by religion of giving alms to the poor. For them there is pity but no genuine compassion or Karuna. Therefore, progress will have to be Karuna. from “alienation to relatedness and mutual relationship.”

Secularism
An important, salient and redeeming feature of Indian Constitution is the acceptance of a secular polity. In a sense the secular State, a State beyond caste and religion is a product of Indian history. Every citizen should be free to practice his own religion. No one should impose one’s religion on others. The King should treat all religions equally. All these ideas can be traced in the history of India over two thousand years. Of course, these ideas were not fully put into practice. There must have been some sins of commission and omission, because after all human beings are not perfect. But the fact remains that Indian tradition had accepted this idea. To India, secularism is not an imported idea. It was the necessity in the peculiar situation that prevailed in India. It has been established by a tradition of life that is thousands of years old. The freedom struggle laid bare the content of this idea. If we have secular Government in India the credit does not go decisively to our leaders only. It is rather difficult to define the word ‘secular’. In the official Hindi translation of Constitution it is called Pantha Nirpeksha (iaFk fujis{k)” whereas in (iaFk fujis{k)”

Marathi as Dharma Nirapeksha Panth ‘/keZfujis{k‘iaFk meaning a sect, a creed. ‘/keZfujis{k‘ Therefore Secular State is not irreligious State. Bradlaw and Holioc brought the word ‘Secular’ into use. They also had to face a similar problem though in a different context. The secular view of life is concerned with man’s relations with fellow human beings in respect of life on this earth, not with life after death. Man must have relationship with man, but it should have nothing to do with life after death. This is fundamental to secularism. Whether it should be associated with spirituality or morality is a separate question. Secularism implies that man’s worldly relationship with his fellow beings must not be governed by his religion. ‘An untouchable should not walk on the same road as I walk’—if such stupidity has the sanction of religion, we will not accept it just because it has religious sanction. In fact, we have taken a pledge that even if untouchability is universally acknowledged we will not allow it to have a place in our society. We are committed to the view that we shall spurn religious norms if they come in the way of human relation in social and political life and equality. India had no traditions of service to the people. We have a tradition of saints and savants moving all over India preaching the ideals of other worldliness. We hardly come across an Indian touring India to propagate and preach the idea of life on this earth. Surendranath Banerjee went round different parts of India asking for an enhancement of the age limit prescribed for the Indian Civil Service examination. This must have been perhaps the first all India tour of its kind for the propagation of a secular idea and programmes. Under British rule it was necessary to secure the support of the people for our political demands. If a freedom movement forges ahead on the support and strength of the people, its ultimate success is bound to transform itself into a democratic polity. The second current of secularism was different from the first. Raja Ram Mohan Roy’s ideas on religious tolerance expressed, after all, the good sense and reasonableness of upper caste Hindus. It was not a revolt of the downtrodden against their slavery. Revolt for liberation by those who are condemned slaves under a given religious order is an altogether different action. Such a revolt is not born out of a condemnation of customs and traditions. It hits at religion itself. Mahatma Phule organized the first movement of Dalits – movement inspired by the ideals of equality and fraternity. After Phule, Dr.

Ambedkar is the great leader of Dalit awakening. ‘Religion is slavery and, therefore, it must not be allowed to dominate life.’ This was the beginning of the new movement. The third important aspect of the secular movement was the fervent plea for modernisation and industrialization made by stalwarts like Justice Ranade and Dadabhoy Naoroji. Dadabhoy’s famous ‘drain theory’ blamed the British for India’s poverty on the one hand and strongly advocated the industrialization of India on the other hand. As early as 1886, Dadabhoy asserted that the Congress was a secular political platform, that it was not a platform for religious discourses. The Congress was open to all Indians whatever be their caste, religion, colour and language. It was a platform for political debate. This famous theory of Dadabhoy was the first attempt made by the Indian liberals to examine the nature of imperialism which was the product of capitalism of nineteenth century. With Dadabhoy, and in equal measure, mention must be made of Justice Ranade as a powerful exponent of India’s secular polity and nationalism. His Prarthana Samaj stood for the abolition of castes and was opposed to idolatry. Ranade was the first Indian to argue that India’s economic backwardness was partly due to the influence of religion, casteism and superstition on the Indian mind. It was the plea of Justice Ranade that in the modern conditions of life the Indian that is to be born will have no room of mere distinction of race, creed or colour. We are Indians first and Indians to the last over every other condition which has separated us so long and has made a united India impossible. Justice Ranade’s essential contribution was to foster the need of modifying the economic policies in the life of the Indian institutional deficiencies pertaining to influence of religion, race, caste, morals, superstitions etc. As a matter of fact, he was the founding father of the concept of secularism. The ideal of a secular non-denominational state is the product of our freedom struggle. It has its moorings in the historical tradition and the hopes and aspirations of the people. Social reformers like Justice Ranade and Raja Ram Mohan Roy were the precursors of this ideal. Gandhi and Nehru through their writings and speeches elaborated the content of secular Indian polity. The Karachi Congress had categorically declared that India would be a secular State. The Congress approached the electorate in 1937 and 1945 from the secular stand-point. That the Indian Constitution would be secular and democratic was a foregone conclusion. Now the Supreme Court of India has held that secular

character of the Republic is a basic feature of Constitution. Still the debate will go on, because there is no end to it.

Women
We must, in the context of equality, consider the place of women held in our society. During the freedom struggle, we had movements for the liberation of women. Gifted women like Dr. Annie Beasant and Sarojini Naidu became the President of the Indian National Congress. The Constitution conferred rights of equal citizenship on women. A woman can be the Prime Minister of the country, or the Chief Minister of a State. She can even be the Commander-in-Chief of our armed forces. The Constitution permits it. Despite all this, a girl child’s birth is not welcomed. This situation continues even though our Constitution had bestowed upon a woman the right of equal citizenship. From time immemorial, the Indian woman had two faces. Women were either exalted as Goddess or were shun as evil being demonesses. As a human being, or as an individual, she never enjoyed rights at par with men in social life. A woman was an inanimate thing, a chattel to be awarded or a prize to be conquered. That is why she was kidnapped or sold in the market place. Polygamy or the possession of a harem was considered a matter of prestige and social status. The young widow was invariably condemned. It was as though after the husband’s death a woman ceased to be a human being. The hardship and the hard labor to which women were subjected had no redeeming features at all. In short women were treated as second class citizens and were relegated to the position of backward classes. In a sense, women constituted a second class humanity It is no wonder then that side by side with the freedom struggle social reformers launched movements for women’s liberation. These movements were meant for emancipation of the women and were carried out with the main stream of our national struggle for freedom. Justice Ranade, Agarkar, Mahatma Phule, Mahatma Gandhi, Shri Karve played a valuable role in this movement. In the former State of Madhya Pradesh, when the bill to prevent bigamy was introduced it was severely opposed. The representatives of the weavers’ community advanced arguments which sounded very funny, but they were symptomatic of their attitude towards women. They contended that a weaver

needs labourers to help him in his weaving operations, but he cannot afford to employ them. Even if he employed one, there was no guarantee that the labourer would regularly attend to his work. He, therefore, has two or three wives on whose labour he can rely as a matter of right. This is the way he solves his economic problem. For a weaver having two or three wives was an economic proposition, which was absolutely necessary for solving his vocational problem. However, assuming a rational approach in this argument, it is a pointer to our attitude towards women, which clearly indicates that woman was all along regarded as an item of property of a man. There was a time when in suits filed in a court of law to secure possession of one’s wife for restitution of conjugal rights, even the wife was valued as she were a chattel. In our society, because of the socio-economic inequalities, the down-trodden is still regarded as a second class citizen, but the position of women is still worst. Even the classes that are considered to be second class-citizens treat the woman as slave. Therefore, in practice, the woman is worse than the second class citizen. Her slavery lies in social inequalities in the various constituents of the society. It was taken for granted that a husband had a fundamental right to beat or misbehave with his wife and that was his personal matter with which the society as a whole was not at all concerned. To some extent, this misunderstanding still holds good. However, the freedom struggle gave impetus to the movement for social and economic equality and, thereby to some extent improved the status of women in public life. That women must have the right to vote, that they must enjoy equal status with men in the nation’s political and social life were ideas which came to the fore during the freedom struggle. Mahatma Phule was the first social reformer who gave prime importance to the struggle for women’s emancipation and equality. His efforts did not stop at women’s education. He directed his attention to such burning problems of the Hindu society as widow re-marriages and hardships of destitute women. He suggested revolutionary changes in the Hindu way of marriage. He ceaselessly campaigned against child marriages. He championed the cause of women by asserting that the root cause of women’s slavery was social inequality in the various constituents of the society. He firmly believed that the social inequality was the root cause of women’s slavery. Therefore, he started a school for the girls as well as for untouchables. His wife, whom he himself educated, rendered

the service as a teacher. All these activities bore fruit in the form of the advent of women in the political and social activities. In the Gandhi era of Indian Politics, women left their homes and came forward in great numbers to participate with men in the civil disobedience movement. They even picketed in front of liquor shops during the prohibition movement. We have to recognize the fact that in the Gandhi era the Indian women took a forward stride of historical importance. On January 26, 1931 a glowing tribute was paid to womanhood by Congress party, in its resolution commemorating the first anniversary of the Independence Pledge. It was read at public meetings all over India. It said: “We record our homage and deep admiration for the womanhood of India who, in the hour of peril for the motherland, forsook the shelter of their homes and with unfailing courage and endurance, stood shoulder to shoulder with their men folk in the front line of India’s national army, to share with them the sacrifice and triumphs of the struggle.” This was one of the modes adopted by Congress for honouring the contribution women had made to Mahatma Gandhi’s civil disobedience movement of 1930. The women had responded dramatically to Gandhi’s call to join civil disobedience and the movements to break the salt law, or picketing at the liquor shops. In these movements women had marched in processions, addressed meetings, organized boycotts of foreign goods, courted arrest and imprisonment. It constituted the first great stride towards women’s emancipation in India. As Mahatma Gandhi rightly described: “The part women of India played will be written in letters of gold.” It is pertinent to note that after Gandhi’s arrest in Salt Satyagraha, he had named two successors to lead the movement after him and one of them was Sarojini Naidu, who led the historic raid on Dharsana Salt Depot on 21st May 1930. In the Constituent Assembly also we had some distinguished women members belonging to all religious sects. But this body mainly consisted of traditional Hindu men who also took for granted that women would have equal rights, and co-citizenship, without any discrimination on the ground of sex. Pandit Nehru gave opportunities to women to advance in public life by offering them important positions in the United Nations, Foreign Embssies, the Parliament, the State Legislatures and the Ministers. All these efforts and struggles culminated into a guarantee of equal rights and status for women which was duly recognized by the Indian Constitution. Yet paradoxically even in an educated family, birth of a female child is abhorred. We cannot deny the fact

that the birth of a female child is even now regarded as a calamity. This clearly indicates that our attitude towards the women does not seem to have substantially changed. Even women are generally critical about members of their own sex who attain success in the social and political field. Normally it is the woman who is more critical about another woman. What is worse that the problem of protection of women, remained where it was and in almost the same acute form. The struggle between liberalism and orthodoxy still continues. Women continue to suffer woes of second class citizenship notwithstanding the status of equality guaranteed under our Constitution. Life of a woman is a continuous candidature for marriage or apprenticeship of motherhood. This is so because the society has not changed its outlook towards women. In the absence of such a change in our social outlook, the constitutionally assured equality is more or less a dead letter in actual practice. A woman ceases to be regarded as marriageable after she crosses a certain age limit. Not so with man. He is a potential candidate even in advanced age, nay, till death. Therefore, a man’s attitude towards women is never sublimated into a purely paternal feeling. Man as a husband suffers from the same malady. So long as the husband is alive the woman is never free from her status of secondary importance in social and political fields or even in family. Curiously enough women who rose to excellence in social and political spheres happened to be either spinsters or widows, understandably for the reason that so long as the husband is alive the woman does not have enough opportunity for the fulfillment of her aspirations and hopes. Even where women rise to heights by virtue of their devotion to work, there is a tendency to belittle the importance of their achievements. So long as such tendencies persist in our society, the rights conferred upon women by our Constitution may remain on paper only. Women’s liberation movements started in western countries should be viewed in this perspective. In India, Right of Inheritance has been legally granted to Hindu women. But there are number of ifs and buts which vitiate the provisions of this law. She is being deprived of this right by a will or even by other means. Our general experience is that the right of a girl to the ancestral property is invariably made inoperative by resorting to some loopholes. What is more distressing is the fact that women themselves have not unreservedly accepted the proposition that a share of the property should go to the girl by virtue of her right of inheritance.

The anti-dowry law is observed more in breach than in its observance. The acceptance of dowry has become status symbol. Dowry is accepted either directly or indirectly i.e. in an indirect form either as reimbursement of the cost of the bridegroom’s education or as contribution towards expenses of a foreign trip. During the period of popular anti-dowry movements some time ago, there were a number of conscientious persons who openly dissociated themselves from marriages if dowry was accepted in any form. But such behavior is a thing of past. Everybody seems to acquiesce in this anti-social approach. Under such circumstances, the girl’s father is obviously helpless and the bridegroom’s parents are constantly scheming to take the maximum possible advantage of the situation with the tacit approval by public opinion. It is, therefore, rightfully feared that all the rights conferred upon women by our Constitution will be totally ineffective. We, therefore, have to think of launching such movements which would make equality for women a reality. It is imperative that women themselves will have to take a considered lead in this struggle. The girl’s father may feel shackled by helplessness but certainly the girl should muster courage and declare that she would not marry a person who demands and accepts dowry. There is a silver lining to the cloud and instances of such exemplary courage are not altogether wanting. Recently there was a news item that a girl belonging to a backward class turned away a prospective bridegroom as he demanded dowry. Why can an educated girl not brace up such courage and self respect? Often it is felt that women themselves do not seriously aspire for liberty and equality. They are perhaps afraid of shouldering the responsibilities which accompany rights. Under the influence of somewhat runaway tendency woman permits the commercialization of her beauty and physical attraction. Sudden spurt in the production of beauty preparations and cosmetics is a pointer in this direction. Commercialization of feminine beauty and attraction to boost up sales is becoming a common practice. As a matter of fact the very basic principle of common citizenship envisages that no humanbeing should treat another human being as an instrument of satisfying his lust for happiness, gorgeous living and carnal pleasures. In economic spheres such practices result in inhuman exploitation. In political field, it perpetuates slavery, and in religious field, it gives rise to all such nefarious demonic customs. Ultimately human life is reciprocal inter-relationship between human beings and an earnest desire for co-existence.

When we think of co-citizenship, we cannot forget the fact that the very basis of this co-citizenship seems to hinge around the very pertinent concept based on ‘Women’s economic independence’. Unless we accept some definite view point in this behalf, I am afraid it will not be possible for us to guarantee equality of women in all respects. Today women have a right to earn, but they have no absolute right on their earnings. She has no right to spend her selfearned money as per her free will that is without consulting her husband or other male members. She has, to some extent, a right to earn without corresponding right to spend earning as per free will. This cannot be termed as an economic independence, which is necessary for achieving the goal of Equality. It is really unfortunate that the woman is treated as belonging to weaker section, and therefore, separate reservation of seats is demanded in legislature, and also otherwise. In human spirit men and women should have equal status, and men should believe in liberation of women for the liberation of human race. Women are the silent victims of most of the conflicts and are real targets. We generally talk about empowering women, but do we really mean it, or want it? All over the world, atrocities on women are increasing in geometric proportion. Domestic violence is rampant. It was a UNICEF report that said, “They (women) already bear and care for the third world’s children. They make, wash and mend the third world’s clothes. They clean the third world’s houses, collect their fuel, cook the third world’s food, fetch the third world’s water, and look after the third world’s sick”. The modernization and mechanization are tending to marginalize women in many sectors. They are either pushed down or are thrown out of the work force. The media has reduced woman to a commodity. Women all over the world are worried about it. Therefore, a movement has started in the name of ‘women against pornography’. They say that it is one thing women can unite upon because we all get raped and we all get beaten’. Women are constantly living under the fear of rape. As it is rightly said by Brown Miller, ‘Rape is a social and political instrument invented by man to oppress women socially, economically, and politically’. Noted Scholar, Elizabeth Bartinder says, “maternal instinct is just a myth invented several years ago to subjugate women. Women gain no glory by being mothers. The instinct is simply oppressive fiction’. Therefore, women in Western liberalization movement have gone to the extent of saying that ‘paternal instinct is a taboo waiting to be born, criticized and killed. Therefore, ‘down with motherhood’. This is an extreme approach but we cannot ignore it,

while dealing with the problem of Culture of Peace and Non-violence. Gandhi spoke about ‘Stri Shakti’ (Women’s Power) what exactly does it mean in the ‘Stri Shakti’ (Women’s present day context?

Ram Rajya
According to Gandhiji, democracy was characterized by four important features: (i) equal regard for all religions (ii) opposition to all forms of untouchability (iii) dignity of labour (iv) concern for the poor-the Daridrinarayan. These four characteristics of democracy were Gandhiji’s guiding principles in his relentless fight to end, difference between rich and poor, high castes and low castes. His vision of the Indian Republic was that of a toilers’ republic, free from fetters of caste, religion and class. His ‘Ram Rajya’- good government was Rajya’also based on the essential truth in the teachings of all religions, a government whose strength was friendly co-operation between man and man. A bad government or an evil government (Haram Rajya) according to him, was founded on differences based on religions, class and caste. Let us at this stage try to understand Gandhiji’s idea of ‘Ram Rajya’. Many times we understand ‘Ram Rajya’ to mean the personal rule of Rama, son of King ‘Ram Dashrath. Gandhiji never thought in terms of personal rule. He was not in favor of monarchy either. Poet Tulsidas elaborated on the concept of ‘Ram Rajya’ and that is how Gandhiji understood it. After Rama was sent into wilderness, Bharat ruled Ayodhya in Rama’s name. He did not occupy the throne. His rule is described as ‘Ram Rajya’. Ram, Laxman and Bharat, all the three were heirs to the throne, but none of them was a candidate. When those who have a legitimate claim on the throne voluntarily refuse to accept it and are not candidates, and those who are enthroned to rule a Nation without making a formal claim to power, and when under such circumstances rulers willingly accept a vow of poverty and austerity and renounce all worldly pleasures, the resultant outcome is ‘Ram Rajya’. Bharat did not become king in himself, but ruled only as a representative of Ram. He was not a king but a Trustee.

We would be, therefore, right in asserting that Gandhiji’s ‘Ram-Rajya’ was not based on religion. He expounded his idea of Ram-Rajya, thus: “In the parlance of religion, is the Kingdom of God on earth. In political parlance, is a complete (full) democracy, a democracy in which differences based on caste, creed and color, rich and poor, man and woman have disappeared, wherein it is people who own land and wield state power, justice is impartial, speedy and inexpensive, citizens enjoy freedom of religion, of speech and of the press, all this is possible because the rulers have voluntarily accepted the authority of the moral law or restraint in the exercise of power. Such a kingdom is based on truth and non-violence, and in such a kingdom the villages are self sufficient, prosperous and contented. There is real rural self-government”. According to Gandhiji Ram is the arbitrator or the dispenser of justice. The Marathi equivalent of it is ‘Panch’. In this sense, ‘Panch’ is God and therefore in a democracy ‘Panch’ is public opinion. When public opinion is not fabricated and manipulated, it is genuine. Government based on such public opinion is ‘Ram Rajya.’ It is the sovereign power of the public based on a moral foundation. The villages should be regarded as the basic constituents of Indian democracy. Villages have tremendous manpower. If it is fruitfully utilized, it will produce immense wealth. This will lead to real democracy and Ram-Rajya. Thus Gandhi’s Ram Rajya was not a theocratic or a denominational state. The Swaraj of Gandhi’s dream, which was akin to Ram Rajya was: “I shall strive for a constitution which will release India from all thraldom and patronage, and give her, if need be, the right to sin. I shall work for an India, in which the poorest shall feel that it is their country in whose making they have an effective voice; an India in which there shall be no high class or low class of people; an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchablity, or the curse of intoxicating drinks and drugs. Women will enjoy the same rights as men. Since we shall be at peace with all the rest of the world, neither exploiting, nor being exploited, we should have the smallest army imaginable. All interests not in conflict with the interests of the dumb millions will be scrupulously respected, whether foreign or indigenous. Personally, I hate distinction between foreign and indigenous. This is the India of my dreams…. I shall be satisfied with nothing less.”

Compromises and Contradictions in the Constitution

Our Constitution reflects the guiding principles as well as the compromises of our freedom struggle. People’s movements can never be strictly logical, traversing a set and predetermined path. Just as such movements are fired by an idealism; they are also influenced by compromises made in order to keep people together in a common struggle. These compromises can also be seen in the various provisions of our Constitution. We framed a Secular Constitution and yet conceded to the minorities, the fundamental right to protect their customs and traditions and run their educational institutions. Our endeavor is to clothe ourselves in the garb of modernity, yet we grant to the Sikhs the fundamental right to carry kirpan. We are committed to the abolition of castes, but we cannot and will not raise legal hurdles to prevent endogamous marriages. We extol regard for all religions, but we cannot outlaw religious conversions. There are many such contradictions and compromises in the constitution. The contradictions do not indicate the limitations in the expertise of our Constitutionmakers. These are the inevitable compromises made during the course of our freedom struggle. They lend credence to my view that the content of a Constitution takes its shape from the principles that inspire and guide the people’s struggle. Our Constitution is the outcome of a long drawn struggle for political freedom. The ideals that inspired that struggle are naturally reflected in the Constitution. But that does not mean that the ideal society envisaged by the Constitution has materialized. The Constitution has banished untouchability, yet can we deny that untouchability is a fact of life. The Constitution has proclaimed the equality of all citizens, yet casteism which denies this equality persists in social life. This only means that the upper castes and classes in Indian society wield adequate power to block our progress towards the ideals incorporated in the Constitution. In the struggle between vested interests and ideals, interests prove to be formidable. Ideals will prevail if they are backed by a powerful peoples’ movement; and get the sanction of public opinion. Equality, equal regard for all religions, adult franchise…… these and allied ideas constitute the democratic ideology but are rendered meaningless by the age old constraints in a traditional society. We are at present in an interesting social situation. Those who suffer under the Hindu caste system, shout against it, and those who gain from it just keep quiet. Caste will not disappear, until those who thrive under it, honestly reject casteism of all kinds. The establishment of equality demands the abolition of slavery but equality is not established by

merely driving away the owner. One cannot expect equality on an animal farm. It can materialize only in a human society. A new man is born out of a consciousness of new duties. A leader, who, by his personal example, arouses a sense of duty in the people struggling for rights, creates the vision and hope of equality for all. Unless this context is properly understood, I do not think it would be possible to unravel the nature of the intimate relation between the influence of the freedom struggle in the making of the Indian Constitution and the role of Gandhiji in the people’s struggle for freedom.

Principle of Equality in the Constitution
We extolled the social reform movement launched by social and political leaders, but we were careful not to implement their teachings in our daily life. This was perhaps an inevitable self-contradiction in the freedom struggle of a backward country. The common people are always traditionalists. Tradition and religion exercise a powerful sway over the minds of people who live in the precincts of a social order based on feudal rural-based society which is economically and educationally backward. This situation is neither justifiable nor excusable. Yet it is a stark reality. The leaders of the national movement who thrive on the support of people with such a powerful traditionalist mind are impatient with this traditionalism. They desire to break this hold of tradition and modernize their minds. People flock after the leader who champions new and modern ideas, believing him to be right. The result is the emergence of strange contradictions between two positions, deep-seated traditionalism which is the motivating force of their day-to-day behavior and modernism which is intellectually accepted yet never put into practice. This divergence between thought and action, strange as it is, is not peculiar to Indian history. It is to be found all over the world in some degree or the other. It is inevitable that some points in our thought process assume imperative and deciding importance. Howsoever important such points may be in the thought process, the problem of incorporating them in the field of law is a serious and complicated one. The Indian Constitution has before it problems which no other Constitution in the world had to face. India never experienced such a situation. There never existed in India what we call natural rights, inherent in the very nature of man. Equality was never the foundation of our social life. That is why in the Preamble to our Constitution we

accepted as our guiding principles liberty, equality and fraternity and justice, social, economic and political. No other Constitution in the world has accepted this position. One is surprised when, despite this, people suggest that the Indian Constitution has borrowed heavily from the American, Irish or Australian Constitutions. It is true that many articles of our Constitution bear a close resemblance to various articles of the Constitutions of these countries. But it would be ridiculous to suggest that our Constitution is a quilt stitched out of borrowed pieces of cloth. Would it not be silly and stupid to say that all literature attributed to Shakespeare is made up of words stolen from the English Dictionary? Surely mere words taken out of a dictionary cannot produce a good literary piece! It is only when a writer imports content to the words that creative literature is born. The various articles of our Constitution have a significant socio-economic content – a product of our freedom struggle as well as various social and economic reform movements. Our Constitution was not made in a month or a couple of years. When a student boasted before Vinoba that he had studied for just fifteen days and passed his final examination, Vinoba asked him a pertinent question, “What have you been doing all these twenty years?” The student was twenty years old. Vinoba wanted to suggest that the student’s hard work of fifteen days had behind it a background and experience of twenty years. The Indian Constitution is also the product of a long penance for political freedom. Our Constitution is not a mere draft of words. Our national leaders and social reformers launched movements to secure for the people rights which they never enjoyed. These movements created hopes and aspirations in the minds of the common people. The Constitution reflects those hopes and aspirations. It is the dream of the Indian people. Our Constitution has thus an approach which is quite different from that of the Constitutions of other countries of the world. A study of the Indian Constitution is not possible unless this basic approach is properly understood.

Barriers to Indian Nationality
The freedom struggle of a country is a multi-dimensional phenomenon. Various antagonistic groups in the society participate in the struggle, yet cling to their own interest. India’s freedom struggle was even more unique. From behind the scene, even the princely rulers supported the struggle. They wanted freedom

for India, because they thought that in free India their privileges would be enhanced. The zamindars were a step ahead of the native rulers. There were families of zamindars in different provinces. Their educated young sons actively participated in the freedom movement. They also were under the impression that national freedom would caste a social climate favorable to their interests. The rising Indian capitalist class was far ahead of the zamindars and the princely rulers. Farmers, workers and the middle classes were already in the movement. The ultimate strength of any socio-political movement is the mass of the people, and so peasants and workers were the backbone of the freedom movement. These conflicting interests took part in the freedom movement, at times co-operating with each other, yet applying checks and counter-checks to each other’s interests. If the Constitution is to reflect the hopes and aspirations of these conflicting classes, it is bound to be a document of compromise, a viamedia between lofty idealism and practical adjustments. As a result of these compromises, our constitutional document is full of strange shortcomings, leading to basic contradictions. The basic objective of the Constitution is to fulfill the hopes and aspirations generated by the freedom struggle, yet we find at times the Constitution itself becomes a stumbling block in the way of implementing programmes to realize this objective. To put it differently, I would say that many articles of the Constitution go against the very content of its Preamble. Compromises are an effort to reconcile conflicting interests. A significant compromise in our Constitution was the recognition of the Right to Property as a fundamental right. It strikes one as odd and strange that a Constitution which is committed to the establishment of equality should confer on property the status of a fundamental right! This is not a question of political philosophy or of the view point of a political party. It is a simple straight-forward proposition: If in any country the existing distribution of wealth as it exists today is to be accepted, a totally new formula for redistribution of wealth cannot be promised. A promise of higher wages for workers can be fulfilled in two ways: either by reducing the profits of employers or by raising prices of commodities they produce. Rising prices would ultimately burden the workers, because they are consumers as well. Therefore the only consistent way to raise wages is to reduce profits. The share of landless laborers will go up if that of the zamindars is reduced. The proposition is as simple as that. There are straight-forward answers to straight-forward questions. But when these answers adversely affect the vested interests, arguments are invented to side-track the basic issue. Let us

firmly ignore this cutting use of clever argument to protect vested interest and we shall find that what remains on balance is a stark truth namely, that if the have-nots in the society are to be assured justice and dignity it would be necessary to deny to the wealthy the right to property, as fundamental right. Our Constitution has accepted the principle of decentralization of political power. But the principle has not been observed in practice. It is difficult to accommodate the practice of decentralization in a Constitution with a strong centre. We have not accepted even in principle the policy of decentralization or de-concentration and equitable distributive or de-concentration and equitable distribution of wealth. The implementation of directive principles of state policy is blocked in practice by other articles of the same Constitution. Let us understand that decentralization of power is meaningless without decentralization or diffusion of wealth. And without enforcing these two types of decentralization in practice, the objective of creating a new Indian society as implicit in the Constitution will remain a distant dream. We have a strange notion of decentralization – horizontal as well as vertical. At the apex is the Lok Sabha and the Central Cabinet, lower on the rung are the assemblies and the State Cabinets and as if this decentralization(!) is not enough, we have accepted municipalities, corporations for urban areas and Zilla Parishads, taluk panchayats for the rural areas. Thus power appears to be diffused step by step from the capital to the village. We have created layers of powers one under the other and in order that they might not look solitary we have also provided parallel autonomous institutions. Juxtaposed with Zilla Parishads, we have a set of organizations such as the district cooperative bank, district sales purchase union, district planning council etc. At the centre there are so many autonomous corporations, one each for iron and steel, food, shipping etc. These autonomous corporations are further linked to each other. Take one consumer’s society at the gross root level. It will have a district, provincial and an all India union. We raised a grand banyan tree of power, with innumerable offshoots at all levels but there is no trace of decentralization of power or deconcentration of wealth anywhere. How do we explain this? The Government is empowered to raise revenue by levying and collection of taxes but are controlled by the centre. The rest of the government and their agencies are dependent on the grants coming to them from the centre. The administrative head who is the decisive authority at these power centre’s is a servant of the Central Government. Every local plan has to be approved from above. All who are at the

lower levels have to beg for financial sanctions at the doors of those who are at the top. We may at the most, call this arrangement ‘de-concentration’, but certainly not, decentralization; or proper distribution of wealth or power. In a top to bottom planning nothing trickles down to reach the bottom. That is why the needs of the local people must have a priority in planning, but it is not possible to give such priority to local people without decentralization of wealth. Our planning must have a national content; such a content has to be achieved by giving priorities to the needs of the local people. A plan with a national content ought to be consistent with the idea of national citizenship. If we give up this approach, central planning would just reflect the wishes of those who won the seats of power at the centre. When small people occupy high offices, their narrow selfish ends are met with gusto. That is why in our national planning the question as to who wields power is of greater importance than the overall needs of the nation. All these complications can be solved if economic power is decentralized. The compromise we have made in the Constitution on this question is going to bother us at every step that we desire to take towards socio-economic change. Social revolution is a strange phenomenon. A very few people feel the severity of the existing situation and know the answers to the problems. But the interests of the people for whose welfare various programmes are being chalked out are still out of such planning. The people whose vested interests are safe in present day social and economic structure, and others who are by nature traditional are in favor of the status quo. They do not want change. That is why it is said that it is the leaders who articulate the potential aspirations of the people. Nobody wants poverty. People desire to work. They have the capacity to work. But jobs are not available, neither food nor shelter. They are steeped in poverty. They do realize that things ought to change but their mind set is bound by tradition. Every one of them desires to be a millionaire. But he does not realize that even if he becomes rich the fact that one millionaire renders thousands poor will not change. The role of the middle class on these issues is very amusing. Economically this class is in the same condition as the working class. Therefore it is fiercely against the rich. At the same time it aspires to join the class of industrialists and to become rich and as such it is equally unhappy with the working class. It cannot reconcile itself with either class and therefore like a pendulum swings from one class to the other and considers itself to be the self-appointed leader of

both the classes. It has a sympathy with the poor but it wants to become rich and therefore by nature this middle class is a potential capitalist class. In the present capitalist society, a capitalist never uses his own capital. He earns profits for himself on the capital invested by others. Vinoba once defined a capitalist as one who has the least capital of his own. But he has his profits, whereas the middle class has neither its own capital nor profit. The dividing line between the two can be said to be both blurred as well as clear. The question therefore is: can we refer all questions to such a set of people? Looking at the devotion and love with which people elect former princes to the Parliament, one is inclined to ask the question, would it have been proper (or wise) to refer the question of Princely States’ accession to India to a popular poll? But these are the same people who calmly accepted the States’ merger and did not raise a voice of protest against it. This is equally true of family planning. We dare not take a popular poll on this issue. And yet family planning is gradually becoming popular and extensive, what would have been the outcome of a poll on the question of a ban on the practice of self-immolation on a funeral pyre? Is it possible to decide the question of the abolition of untouchability by a general ballot when majority, consist of caste Hindus? This is a very complicated aspect of social transformation. Social transformation is not feasible and possible if it is to be launched with the prior sanction of those for whom it is meant. Human beings are slaves of tradition. That is why they have to be emancipated. They will not revolt against such changes because these serve their interests. But at the same time let us clearly understand that social transformation is not always possible with the prior sanction of the people. Our leaders wanted a system of education which would instill among the students feelings of common nationality, of belonging to India. Under a uniform system of education, the new generation would become truly Indian in outlook. That is why many insisted on avoiding regionalism in our educational system. We think education moulds the minds of men. But today our national situation has deteriorated to such an extent that even an educated Indian is not accustomed to thinking in terms of India. There seems to be the universal view that when every one thinks of his own province, he is thinking of India, because the sum of the provinces is India. This is a fallacious view. If every individual thinks of himself, he does not thereby ensure social welfare. Every individual and region has to think in terms of the nation.

We thought that education will solve all problems. But unfortunately, today education itself has become a problem. The values of revolution cannot be considered on arithmetical basis. The symbols which emerge from the revolution have algebraic significance. In Algebra x, y, z are symbols and unlike arithmetic they are not indicative of a specific sum.

Education
After independence, it was decided to have certain pattern and system of education for the development and growth of the country and its masses. Every Government at the centre had, in its own way, put great efforts in this direction. The education system in the country is a deep-rooted legacy transferred to us by the British. Attempts were also made for coming out of this imposed system of education through debates, discussions, even appointing committees and commissions comprising of great thinkers and educationists of the time like Dr S. Radhakrishnan, Dr Mudliar, Dr Zakir Hussain and Dr. D.S. Kothari to name a few. The inputs of time, energy and money in such attempts, resulted in a fair and good amount of literature by way of recommendations; unfortunately none of these recommendations have ever been put to test fully and fruitfully. So far, no clear picture has emerged as to what type of education should be imparted to the youth of today matching with the cultural and socio-economic needs of India, which in turn can also take care of the proper growth of the individual’s personality tuning with the various global developmental and advancing scientific and technological phenomenon, lest he becomes a misfit resident of the global village. The prosperity of a Nation is measured by the level of education the citizens of the country possess. Today, education has spawned cultural illiterates and moral idiots. Schools and Universities have been swamped with intellectual laziness bred from the modern doctrines that everything is relative and all values are equal. Liberal education and knowledge of the classics, which were the hall marks of higher education, have almost disappeared. Why? We have made every possible mistake, gone wrong everywhere. Education today, has no spiritual dimension. It is no longer based on the principles which in the past have been India’s strength and stay, and which are still her strength. There is no productive work in our current education; it keeps knowledge and work apart. There are no jobs for those who pass out of colleges, and the result is

that if we educate people, we add to unemployment; and if we do not educate them we add to ignorance. The choice is between ignorance and unemployment. Prof. Devdatta Dabholkar, who was Vice Chancellor of Poona University once said: “The Universities have severed the relation between degree and knowledge. We have to go a step further and that is to break the relation of degrees with the job and vocation.” While speaking at Sarvodaya Shikshan Mandal at Chandrapur, Justice Chandrashekhar Dharmadhikari quoted the following statements of T.S. Eliot: “Where is wisdom we have lost in knowledge Where is the knowledge we have lost in information? Chandrashekhar Dharmadhikari adds: “Where is information, we have lost it in Television. The above statements speak volumes. Gandhiji with great farsightedness suggested a type of education which he called Nai Talim or Basic Education. Dr Sushila Nayyar once said: “Gandhiji’s Nai Talim or Basic Education begins with conception and ends with cremation.” Professor John Dewey of New York University observed, “Gandhiji’s system of education is, I am sure, one step ahead of other systems. It is full of immense potentialities and we all hope to learn much from his revolutionary educational effort.” Simple things like crafts become dynamos of world revolution. We have rejected Gandhiji and not followed his experiments to draw a sound educational system. Gandhiji firmly believed that basic education through handicrafts would always be independent of money and its running expenses will come from the educational process itself. He said that the only education was that which was self supporting. His concept was that education should be work oriented and related to the economic and social goals of a country. Consequences of the neglect of basic education is the moral crisis that is writ large on the entire national scene. In 50s, we had many eminent persons in public life who were every inch gentlemen. In 70s, we had an unacceptably large number of leading figures in politics, business and public life in general, of whom

we cannot be proud. Today, the standards of persons in public life have nosedived so precipitously that the whole nation is in distress. Justice Dharmadhikari says: “The leaders today have become dealers.”

Educational Institutes
Thomas Jefferson one of the founding fathers of USA said: “If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.” When a republic comes to birth, it is the leaders who produce the institutions; later, it is the institutions that produce the leaders. Where are the leaders of tomorrow? This question can only be answered by the counter question- where are the nation building institutions that can produce the leaders of tomorrow? Do we have educational institutions, which aim at generating excellence and which are equipped to produce movers of people, mobilizers of opinionintegrated personalities whose minds, hearts and character have been developed in the noble traditions of our invaluable heritage. H.G. Wells observed that human history is becoming more and more a race between education and catastrophe. This observation indicates what our people without education are heading for. Far from setting up elitist educational institutions, we have down-graded and devalued the fine Universities which existed when we became free. In those days University buildings did not leak nor did examination papers. To day both are leaking beyond repairs. We discarded the old norms of discipline and decorum, dignity and decency in our Universities. At best, Present day Universities are academic cafeterias offering junk food to the mind. At worst, they are the breeding ground of corruption, indiscipline, dishonesty and irresponsibility. The qualifications for the post of Vice Chancellor in the past were nothing but only academic and administrative excellence. Today, the qualifications for the post of Vice Chancellor, is in the words of L.G. Rajwade, who was once Vice Chancellor of Baroda University: “He should have monkey’s brain, parrot’s mouth and rhino skin.” The appointment has become purely political and therefore the incumbent has to dance at the tunes of his political bosses. The result is what we see in the Universities today. There is no universe in any University. They are becoming not only regional but petty minded. No body, who does not belong to a particular region can be appointed as Vice Chancellor of any University, howsoever

intelligent and national minded he may be. Caste and regionalism are overpowering nationalism and national interest. Justice M.C. Chagla as Education Minister of Government of India said: “Vice Chancellors were often appointed on political grounds and they failed to inspire the respect that students should normally have for a person, who in supposed to be a leader of academic life of the University. The only way to revert the present suicidal trend is to go on a massive scale for value-based education, imparted by value-based teachers and managed by value-based administrators. The world opinion is veering round to the view that education is the universal panacea of the day. Dr. Warren Bennis said that what is needed for our competitive advantage, long-range growth and full deployment of our people are three things: education, education and education. In the opinion of Justice Chandrashekhar Dharmadhikari: “While the number of our Universities and the number of our students proliferate, level of education does not keep pace. We continue to churn out ethical illiterates and moral idiots. Our education continues to be “value-agnostic and value neutral.” C Rajagopalachari, while in jail for civil disobedience, made the following entry in his prison diary on 24th January 1922: “Hope lies in only universal education by which right conduct, fear of God and love will be developed among the citizens from childhood.”

Examinations:
Dr. M.G.K. Menon writes: “The focus on material aspect of life and rising expectations, characteristic of present day society are resulting in intense competition, in the area of education. To deal this many are now indulging in activities of fabrication, falsification, plagiarism, credit-not-due and so on. To pass examination or get high marks, techniques are used such as obtaining prior access to examination papers, based on leakage of these by bribing and corrupt practices. In earlier days, education was a process whereby thinking of individual human beings was stimulated to enable them to be more capable of understanding nature as also civilizational artifacts (history, archaeology, painting, music, dance, literature, professional skills, etc). This involved the assimilation of knowledge and stimulating creativity to create new knowledge. Today, education has become a means to an end for employment increasingly

higher levels and corresponding material benefits. The objectives have changed completely. This is a result of increasing commercialization and competitiveness which has its own serious ethical shortfalls.” (Vision and Values-Essays in Honour of
Dr. D.S.Kothari on his Birth Centenary, pp 382-83)

What Dr. Menon has said is absolutely true. I (author) have seen scores of cases of malpractices and corruption in the examinations during my short period as Controller of Examinations and Registrar of Marathwada University, Aurangabad. My predecessor (Controller of Examinations) was placed under suspension for his involvement in corruption and mal-practices in the examinations of the University. One of the charges against him was increasing the marks of his own son for his admission in M.B.B.S. It was proved by a committee appointed under the Chairmanship of a retired Judge. But by the time, inquiry report was received and the decision there on was taken, the said boy had become Doctor. It is shocking that the said boy later became a member of the Management Council of Dr. Babasaheb Ambedkar Marathwada University, Aurangabad and that too as Chancellor’s nominee. I quote just three cases which took place during my period to show as to what was going on in the University. In one case, the answer books were replaced at the examination centre after the examination was over. In the second, case supplements were attached after the main answer book was assessed. In the third case, marks were increased to bring the candidate in first rank. I withheld the results of these three candidates. Though tremendous pressure was sought to be built upon me to declare their results, I did not budge an inch. One of the members of the then Executive Council of the University, namely Shri Venkatrao Jadhav, who was upright and honest came to know about it. He took me to Shri Shankarrao Chavan, who was then Chief Minister of Maharashtra with the papers. I revealed to the Chief Minister the names of the powerful persons behind the candidates. He went through the papers and advised me to take severe action. On my request he agreed to entrust the investigation to a senior police officer from outside Marathawada. As per the procedure, the papers were referred to the Chancellor’s Office and Deputy Inspector General of Police (Railways) was appointed as an enquiry Officer. However, in the State political turmoil, Shri Shankarrao Chavan was

catapulted to the Central Cabinet. And the cases saw their closer with minor punishment. The Examiner (Principal of a College), who was found guilty of increasing the marks of the candidate was debarred from the University examinations and its statutory bodies for a period of six years. The same Principal later became a member of the Maharashtra Public Service Commission and retired as its Chairman. I have seen highly placed politicians and bureaucrats stooping down to any level to get the marks of their kith and kin increased. I was not surprised by their conduct. But one day, the District and Session Judge of Aurangabad, who later became High Court Judge came to my house in the evening. He told me that his son has appeared for the Pre- Professional Examination (qualifying examination of those days for admission to the professional courses), and requested me to oblige him by increasing his son’s marks to enable him to get admission in M.B.B.S. I refused to oblige him in view of my principles. I must say in fairness to him that he appreciated, apologized and left. However, I thought that my efforts in bringing about values and purity in University and its examinations will be like hitting the head against the wall. I therefore, relinquished the office of the Registrar, which I was then occupying, much against the insistence of the Chancellor of the stature of Dr. Ali Yavar Jung and went back to my post of Deputy Registrar. I decided to proceed on voluntary retirement and eagerly awaited the application of Pension Rules to the University employees. But when the G.R. to this effect was issued by the Maharashtra Government, it did not contain the provision for voluntary retirement. I had to make frantic efforts to make this provision applicable. The day amended G.R. was issued I proceeded on voluntary retirement as per the provision made therein. Dr. M.G.K.Menon’s write-up provoked me to mention the above facts. If I write about corruption and academic fraud in the University, it would be a sizable book. But this is neither occasion nor place for it. Education has never been a high-priority item in any Indian political party’s manifesto. The subject which should have galvanized the nation into action is still kept in cold storage. Without the guidance which can be derived only from liberal education, a whole generation has

grown up which is content to see crime and violence, casteism and communal frenzy, became the order of the day. Article 45 of our Constitution enacts: ‘The State shall endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years.’ It is worth recollecting the words of Jawaharlal Nehru, when he said: “Nothing saddens me so much as the sight of children who are denied education. If our children are denied education, what is our India of tomorrow going to be? It is duty of the State to provide good education for every child in the country. It is duty of the State to provide free education to every child in the country” Elementary education is ‘free’ in theory; but many schools in remote rural areas are today without even a blackboard and chalk. ‘Compulsory’ it is not, even in theory. Men in public life have always looked upon Article 45 as a pious platitude making meaningful democracy impossible but making it easily possible for politicians to have a vested interest in illiteracy and public ignorance. When Lee Kuan Yew was asked on the BBC as to what he attributed the phenomenal success of Singapore, his answer was in one word – ‘Education’. He added that no subject had a higher priority in his citystate. President Mitterrand started his second term of office in 1988 with the promise to make education the ‘priority of priorities’. His election manifesto proclaimed, ‘In future the nation’s power will depend less on its financial wealth than on its grey matter.’ He was as good as his word. In France, after the prime minister ranks not the foreign minister, not the finance minister, not the home or the defence minister, but the minister of education. In February 1991, the British Prime Minister, Mr. John Major, in a speech put education at the top of his personal agenda and said that education is the key to a ‘mobile, dynamic and diverse society’. In 1983, the National Commission for Excellence in Education, appointed by the United States government, published a report called A Nation At Risk.’ The report exhorted the government to take prompt and

firm measures to raise the level of education, if the future of the country was not to be imperiled. If the United States can be called ‘A Nation At Risk’, would it be any exaggeration to call India ‘A Nation in Dire Peril’? Justice Chandrashekhar Dharmadhikari says: “It was expected that education will solve all problems. But unfortunately, education itself has become a problem. The doors of the prisons are opening towards Universities but the doors of the Universities are opening towards prisons. In today’s educational system, there is nothing Swadeshi. Everything is foreign. Akbar Allahabadi, a noted Urdu poet described present day education in his Urdu couplet thus: Tifla Men Boo Aye Kya Baap Ke Etabar Ki Doodh To Dibbe Ka Hai, Talim Hai Sarkar Ki The above couplet means that the culture of parents will not reflect in their children because of the powder milk and government education. Justice M.C.Chagla as Education Minister had said: “While we should look ahead, try to be modern and rational, we should also have our feet solidly planted in the soil of our country. Education should have a Swadeshi orientation and relevance to Indian conditions.” Chagla further said: “Our education must also produce leadership for the future. No country can be really great unless it has leadership, and education should always be aimed at the production of an intellectual elite… Opportunities should be open to everybody, who has the capacity and ability to reach the top. It was not enough to create top; we must also create opportunities for everybody to reach top.” The time has come in the history of education to lay special emphasis on quality. There has been a tremendous quantitative expansion in education without due regard for quality. This has happened because the temples of learning have been made temples of money making. There is mushroom growth of schools and colleges. The admissions from K.G. to P.G. are made by greasing the palms under the garb of donations, which has resulted in creating, “Shikshan Samrats,” along

the side of “Sakhar Samrats.” In fact, the Shikshan Samrats have left Sakhar Samrats much behind in accumulating wealth. Education in the eyes of futurologists is a failure today. It has not helped man to understand the feelings and importance of people living at the bottom of the society. It has not helped to remove barbarism and inhuman activities from the society. It often promotes a negative attitude rather than a positive one. It has given importance to the present ignoring the future. It has not helped man to fully equip himself and face the challenges of the future. The main objective of education today is to satisfy the ego for a job. It has not done anything substantial to strengthen human values, brotherhood, tolerance, truth and broad outlook in man which are essential to save the world from destruction. The growing rebellious, crazy, cruel and inhuman behaviour prevailing in society will do more harm than good for the future society. A broad based education is necessary to root out these behavioural trends and save the future generations from degeneration. In other words, the need of the hour is a result-oriented educational system that will produce a community which can save future man from self-destruction. The goal of education should be to create a safe future for man. Confucius wrote: “If you plan for a year, plant a seed. If for ten years, plant a tree. If for one hundred years, teach the people.”

Privatization of Education
Privatization of education offer no solution, for the growing privatization of education has made learning too expensive for non-privileged people and is relegating the mass of the poor to the worst schools with the worst facilities and teachers and the least sources. In elite private schools in which parents pay tuition, education is geared to the western model. Educational forms and issues are not designed to give people the knowledge and the tools they need to work locally to improve conditions and help local people. Private education is designed to help children of the well-to-do to gain the background they need to enroll in the University and to get the highpaying job abroad or to begin their own lucrative business. Young boys and girls in private schools and colleges are oriented towards the western values and goals of personal wealth and achievement. The purpose of elite education is not

to learn to think or to acquire the tools to improve one’s society but to make money. Public schools are left with abnormally large number of students with learning disabilities or hail from deprived backgrounds. Instead of public school becoming a place where levels of society mix, learn to communicate and discover common values, privatization of education creates two societies: one of educated people oriented towards western values of personal gain and another of undereducated ill-equipped to improve their society or their own lot in life. Justice Chandrashekhar Dharmadhikari says: “Schools should offer the best education to all students, free of narrow traditions and government or corporate bureaucratic dictates that control how and what they teach. All people should have equal rights to the best education...”

Teachers
In ancient India, it was a matter of culture and tradition to be a teacher, better known as Acharya next to God. Acharya was regarded and accepted as an embodiment of character, simple living, love and affection. Gurukul or Asharam was the residence of Acharya, where pupils lived, studied and worked strictly according to the norms set up and decided by the Acharya. But now-a-days, what is happening is that governments are doing their utmost to keep the teachers and students under their thumb and impose upon them the ideas upon which governments themselves are based. Even history takes new forms. History is no longer what has really happened, it is what we wish to remember. We keep what we like, cut out what we dislike, and teach this kind of history to our pupils. Each and every government tries to mould the minds of students according to its own brand of thought. Justice Dharmadhikari points out that the Collector of Shivpuri district in Madhya Pradesh directed the teachers to sale the liquor, because the tenders of the contractors were not finalized within the stipulated period. The teachers also did not mind selling the liquor. But when there was a hue and cry, the Collector withdrew his order. Justice Dharmadhikari quotes what Vinoba Bhave said about teachers. He said: “Our teachers are the bullocks. They obey orders, they teach whatever prescribed books they are told to teach. The very people who ought to be responsible for guiding the whole nation on the right path have themselves lost their way and fallen so low that they are no better than paid servants.

Universities and Colleges have become an arena of political misfits, where all the parties fight for control of the Colleges.” “Vinoba Bhave had enumerated three basic qualities which a teacher must possess: A teacher should have love and affection for his students; he must enrich his level of information and knowledge continuously; and lastly, he should never indulge in politics. But what are the teachers today. In the words of Vinoba Bhave: dks.kR;kgh izdkjph thouksi;ksxh drZcxkjh vaxh ulysyk] uohu drZcxkjh laiknu dj.;kl LoHkkokus vleFkZ cuysyk] drZcxkjhyk f’k{k.kph] Eg.kts fMxzhph ?kesaM iqjysyk vkG’kh tho] QDr f’k{k.k Eg/kts thoukiklwu rksMwu osxGs dk<ysys eqnkZM f’k{k.k- vkf.k f’k{kd Eg.kts ^e`rthoh ek.kwl-* ;kykp dks.kh cqf}thoh Eg.krkrRelevant here is the inspiring and awakening message of Guru Rabindranath Togore: “A teacher can never truly teach unless he is still learning himself. A lamp can never light another unless it continues to burn its own flame. The teacher who has come to the end of his subject, who has no living traffic with his knowledge but merely repeats his lessons to his students can only load their minds; he cannot quicken them. Truth not only must inform but also must inspire. If the inspiration dies out and information only accumulates, then truth loses its infinity. The greater part of our learning in the schools has been wasted because, for most of our teachers their subjects are like dead specimens of once-living things, with which they have learned acquaintance but no communication of life or love.” Teachers, they say, are the real makers of the future man. They are nation builders when they mould today’s children as tomorrow’s nation builder. They should indeed be the seekers of truth and knowledge, which quality they should pass on to students. They should have an intellectual equipment, ever growing with refined and new knowledge capable of bringing about total development of the students. They should not only provide leadership in the educational field but should also pass on qualities of leadership to each and every student. dk;epk daVkGysyk] ckGx.kjk] QDr iqLrdkr

Here, the advice of Ruskin is note worthy when he says, “education does not mean teaching people to know what they do not know, it means teaching them to behave.” In the primary schools, students either worship or fear the teacher. In the middle school, they either admire or ridicule him. In the senior classes, they assess their teachers and emulate them. Whatever students do, they can never be indifferent to their teachers because they have become an inseparable part of their lives. As a matter of fact teacher must have a mother’s heart. Mother does not love her children by adopting percentage formula. For her every child is a cent percent personality; and integer whole. However, those with the knowledge and intellectual capacity to earn more leave to find greener pastures. The less able become teachers and regard the profession as a job no different from a job in a factory or a shop. In a study, it was found that only 20 to 25 percent of teachers love to teach. Most of the teachers have become traders, estate agents. They remain busy in the money making activities and neglect teaching. Some of the teachers hardly go to schools and colleges on one pretext or other. Justice Chandrashekhar Dharmadhikari, in his Ramanand Tirtha lecture series delivered at Nanded expressed his views on education which are summerised below. Maulana Abul Kalam Azad was then the Minister for Education. He was of the emphatic view that education as a subject should be included in the union list and that under no circumstances should it be left to the States. He had an apprehension that if education was retained as a subject in the State list, the educated man in India would become a narrow provincialist. In a letter written to the Drafting Committee of the Constitution, Maulana Azad advocated that education should be under central guidance if not under central control. He strongly opposed leaving the said subject with the provinces. According to him, if the said subject was not under central guidance or control, the intelligentsia of the country would think on the similar lines and would become regional in outlook. Azad also believed that the educational planning should be a union subject. Nehru also supported his point of view; but the sentiments in general favoured its continuance as a State subject. Therefore, technological and scientific research institutes, which were primarily run on central funds and were nationally important, were alone included as a subject in the union list. Universities like the Banaras Hindu University, the Aligarh Muslim

University, the Delhi University and such other National Institutions became the responsibility of the Central Government. Questions concerning the relations between institutions imparting higher education were also included in the Union list. But notwithstanding all these arrangements it was decided that general education including university education should be in the State’s list. However list. by Forty Second amendment the said subject is now included in the Concurrent List. During the freedom struggle our leaders had taken a particular position on National Education. Leaders like Tilak established National Institutions for higher education. Yogi Arobindo was the Secretary of the National Education Committee, established in Calcutta in 1906. The object of the Committee was to consider the question of Government control of education and to elaborate on the ideas of National Education. On assuming office, the Congress ministries took up the question of National Education. The Wardha Educational Scheme known as Basic Education was a product of this effort. National Education and Nationalist Institutions were the means through which the Congress tried to foster among the people love and regard for freedom and swadesi. What were the underlying ideas of National Education? An individual is indebted to the Society and the Nation in which he is born. A conscious realization of this fact motivates him to work selflessly for the nation and society at large. This is the basic attitude of National Education. National Leaders strongly felt the need to impart such education as would prepare young Indians to do away with obstacles that came in the way of national development and create in them capacities to foresee future problems of the nation and solve them. National Education endeavoured to remove the mental slavery of students and imbibe in them the conviction that freedom and liberty were to be preferred to a life of leisure and comforts. National Education was against both mental slavery and industrial dependence. Industrial Education and the spirit of swadesi were its important planks. Women’s education was also an integral part of the freedom struggle. The 32 point questionnaire prepared by Justice Ranade included such important items as women’s education, national education and spread of education among the backward classes. Ranade simultaneously started a number of movements for the economic, social, political and religious revival (regeneration) of India. National education and swadesi featured prominently in these movements. The basic thinking behind these movements was that the building of a new nation

was not possible unless the aims of education were in conformity with national objectives, that national education was in itself an important means of national reconstruction (revival). Gandhiji was an advocate of national education. It had an important place in his basic programme of non-cooperation. The aim of national education according to him should be the inculcation among the young people of the values of patriotism, without consideration of personal gain or loss. One should not approach education from a business man’s point of view. Our leaders stressed two points while spelling out their ideas on national education: 1 National education was not just a change in the medium of instruction. Singing the glory of slavery in Marathi instead of in English could not be called national education. A change in the medium was a matter of detail. Similarly, a change in subjects taught could not be equated with national education. Change in the medium of instruction and in subjects or syllabus are incidental to the idea of national education. They would be subject to change as per changing needs. The content of national education must be truly national. Its object must be to create patriotic citizens who would be prepared to give their life blood for the nation’s regeneration. 2 A student is a citizen of tomorrow and therefore the custodian of a nation’s future dreams, of what the country ought to be in future. Therefore the direction and the content of education must not be and cannot be guided by present needs. Experts in the field of education ought to rise above the trivialities of today and think of the coming world of future generations. That is why education was considered as a national problem. Giants among men like Lal-Bal—Pal, Arobindo and Gandhiji were not members of the Constituent Assembly but all members of the Assembly had tremendous respect for them. Maulana Azad had fervently said: “A uniform system of education would ensure the constitutionally guaranteed equality of all citizens”. No one can now say that education was included in the State List inadvertently. All warnings to the contrary were ignored. Our national leaders expected that the function of national education was to create inter-provincial understanding and friendliness and foster a sense of fraternity amongst them. Our national leaders thought that these institutions will function like clubs and create interrelationship based on secular values and nationality so as to foster inter-provincial amity and understanding.

National education did not consider intellectual labour superior to physical labour. In fact, one of the purposes of institutions imparting national education was to give dignity to physical labour. It was a national programme to foster the ideals of equality and fraternity and promote genuine nationalist feelings. Our leaders wanted a system of education which would instill among the students feelings of common nationality, of belonging to India. Under a uniform system of education, the new generation would become truly Indian in outlook. That is why many insisted on avoiding regionalism in our educational system. We think education moulds the minds of men. But today our national situation has deteriorated to such an extent that even an educated Indian is not accustomed to thinking in terms of India. There seems to be an universal view that when every one thinks of his own province, the sum total will be thinking of India. This is a fallacious view. If every individual thinks of himself, he does not thereby ensure social good. The sum of individual interest does not add up to social welfare. Every individual and region has to think in terms of the nation. Many educationists are of the view that conflicts among provinces can be avoided, inter-provincial amity promoted and the outlook of educated Indian broadened, if all citizens are imparted the same type (uniform) of education. For this purpose, the syllabus and the medium of instruction will have to be the same throughout the country. Such a policy will accelerate our march towards equality. To achieve this, a three languages formula was framed, but it did not work, because ultimately regionalism prevailed over nationalism. Justice Dharmadhikari is today connected with the Global Indian Foundation, which runs schools in India and abroad. With every school there is Center for Thoughts and Values of Mahatma Gandhi, with Gandhi’s statue at the Forefront. It “Thinks Globally, but Acts Locally.” It believes in Gandhian philosophy; Indian culture; it believes in the words of famous educationist: “The difficulty is not to maintain one’s self, but a society in which the self can expand and finds its fulfillment, to combine freedom and work and transform work into play, or play into work.” There is no contradiction between Global and Indian outlook. They are complementary and not contradictory. Justice Dharmadhikari believes in the words of Tolstoy. Tolstoy said about his school: “It was all my life, it was my monastery, my Church in which I redeemed myself while being saved all the anxieties, doubts and temptations of life.” Real education can achieve this.

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Part IV
Random Thoughts Distributive Justice Criminal Tribes Act Adversary System of Trial Concurrent Judgment Element of Chance Religion and Rule of Law Swaraj – A Distant Dream

Distributive Justice
It is well known that equality envisaged by the Constitution of India means equal treatment to equals. To treat unequal's equally is not equality. Therefore

the Constitution itself provided for certain concessions to the backward classes so as to achieve the goal of equality. Therefore the Constitution itself provided for certain concessions to the backward classes so as to achieve the goal of equality. Note the following: • Article 15(4) declared that nothing in Article 15 or clause (2) of

Article 29 shall prevent the State from making any special provisions for the advancement of socially and economically backward classes of citizens or for Scheduled Caste and Scheduled Tribes. • Article 19(5) also provided that the State can impose reasonable restrictions on any of the rights conferred by Article 19 either in the interest of general public or for the protection of the interest of the Scheduled Caste or Scheduled Tribes. • labor. • • • By Article 25 freedom of conscience and free profession, practice 29 (l) deals with the protection of interest of minorities. By Article 46 the State was ordained to promote with special care and propagation of religion, was guaranteed. Article Article 23 prohibited traffic in the human beings and also forced

educational and economic interest of the weaker sections of the people and in particular Scheduled Caste and Scheduled Tribes and to protect them from social injustice and all forms of exploitation.

Proviso to Article 164 (1) lays down that in the States of Bihar,

Madhya Pradesh and Orissa there shall be a Minister in charge of Tribal Welfare, who may in addition be, in charge of the Welfare of the Scheduled Caste and the backward class etc. • • Article 275. • • State. By Article 330 reservation of seats for Scheduled Caste and Article 335 recognizes claims of the Scheduled Caste and Scheduled Scheduled Tribes in the House of People is contemplated. Tribes to the services and posts in connection with the affairs of the Union or the Chapter X of the Constitution deals with the Scheduled and Tribal A special provision for grants for the scheduled area is made by areas and with its administration.

• • •

Article 338 provides for appointment of special officer for the By Article 339 the control of the Scheduled areas and welfare of the By Article 342 specification of Tribes or Tribal communities is Article 371-C makes special provisions with respect to the States of

Scheduled Caste and Scheduled Tribes. Scheduled Tribes in the State is provided for. contemplated.

Manipur and Nagaland.

Therefore to carry out the mandate of equality as enshrined in the Constitution of India, special provisions are made in the Constitution so that unequals will not be treated equally. If the provisions relating to these concessions were not incorporated in the Constitution, then the Chapter dealing with the fundamental rights or equality would have become in human and unequal in its operation. These provisions were necessary to achieve the object of distributive justice. The Supreme Court had an occasion to consider the concept of distributive justice in Lingappa Pochanna Appedwar vs. State of Maharashtra AIR 1985 SC 389 in the context of the provisions of Maharashtra Restoration of land to Scheduled Tribes Act. This is what the Supreme Court, in paras 17 and 19 of the said judgment, observed: “In the past forty years, most of the tribal societies have come under attack by economically more advanced and politically more powerful ethnic groups, who infiltrated into tribal regions in search of lands and new economic possibilities. These population movements triggered a struggle for land in which the aboriginal tribesmen were usually losers, and deprived of their ancestral lands, turned into impoverished landless laborers. In order to meet the situation the legislatition had been brought in to save the tribals from extinction and prevent their enslavement and degradation as destitute. One has only to read Professor Christoph Von Furred Heimendorfs Tribes of India; Struggle for Survival to understand the enormity of the social crimes that the non-tribals have been committing against the tribals. As the learned author rightly points out: “It is inherent in any plan for the protection and support of tribal minorities that whatever benefits are envisaged for tribesmen must adversely affect the interests of some more advanced sections of the population.

Alienation of tribal land cannot be prevented without depriving non-tribal landowners of the chance to enlarge their holdings, a curb on exploitation by money lenders interferes with the activities of local businessmen, and any attempt to eradicate corrupt practices of minor officials diminishes the income from dealings with ignorant and illiterate tribal. Thus any policy of tribal rehabilitation arouses the opposition of vested interests.” Bandyopadhyaya, Joint Secretary, Ministry of Labor, Government of India and B.N. Yugandhar, Special Assistant to the Deputy Chairman, Planning Commission in their Report submitted to the Government in 1975 brought out the reason for the justified sense of grievance felt by so many tribal populations in these words: "The Girijans came in touch with the administration only in a State of confrontation when they were tackled for infringement or infraction of one or the other regulation which in fact abridged, annulled or tinkered with their customary, rights and privileges. Thus, the Harijans of the Parvatipuram agency tract found themselves totally alienated from the administrative machinery and newly set up self-governing institutions and were denied opportunities of gainful economic activities. They suffered not only from poverty but also from a deep sense of insecurity. They found themselves deprived at each point and at each front. A deep sense of grievance and injustice enveloped the entire tribal population through decades of neglect by the local administration". These observations aptly apply to the field of criminal justice also. The observations of the Supreme Court, namely social crimes that the non-tribals have been committing on the Tribals are not only pertinent but also very important. Even today, enormity of social crimes that the non-tribals have been committing against the Tribals is not minimized. To say the least, various social legislations and the Constitutional provisions have not made any change in the attitude. This is not the end of the matter. It is many times noticed that while appreciating the evidence of witness different standards are applied even by courts of law. The findings as to the guilt many times depend upon quality of the evidence and not so much on the quantity. Quality of evidence many times depends upon the respectability of the witness. Though Article 14 declares that there is an equality before law, yet in the matters of appreciation of evidence tribals are not treated equally with the forward class. Respectability of a witness depends upon his social, economical and educational status and it is presumed that rustic adivasis, not being moneyed men, are not respectable. Therefore an adivasis,

adivasi’s evidence is appreciated and accepted with a pinch of salt and not on its face value. As a matter of fact, a rustic tribal man or woman is apt to speak truth because their notion about truth and untruth is not tainted but unfortunately their evidence is not accepted at its face value because some of the courts feel that they could be tutored or purchased. Adivasi witness is not treated as a respectable witness. This is so because we are still preoccupied by our notions of respectability. Though it is proclaimed by the Constitution that the Tribals and non-tribals will be treated equally and there will be equality before law, in practice, inequality still persists and this is the reason why certain special provisions are necessary for dealing with the complaints made by tribals. Even today whenever an offence relating to property takes place, first thing the police does is to raid the tribal village or the hamlet, because it is felt that the tribals still profess or live on crimes. As there is no scientific method for investigation of crime in our country, and the culprits being the only source of investigation, the use of third degree is rampant so far as alleged criminal tribes are concerned. Therefore, custody deaths are also not unknown. Nobody is shocked by this custody death because the society feels that the deceased is responsible for his own death. Therefore, in criminal jurisprudence, a tribal is always taken to be an accused though the presumption is otherwise a person is deemed to be innocent unless proved guilty. In cases of tribal accused, presumption is that he is guilty unless it is established that he is innocent. Thus, the theory and practice differ in every respect. Rape or other atrocities on a tribal woman are not taken seriously, as if it were a normality or that they deserved it. In my humble view, unless our very notions of criminal justice are reexamined and drastically changed, tribals in this country will never get justice. A question was asked to Martin Luther King as to what he expects from a white man for solving the question of black men and in his humble way he replied, "If you want to solve the question of black men give a white man a white heart". In my view, therefore, unless there is a change in approach and attitude, there is view, no solution to this problem. It cannot be forgotten, as observed by Elbert Hubbard, that "Criminal is a man who does by illegal means what all the rest of us do legally". Rather a man's capacity to break laws alone decides his dignity and status as well as his respectability in the society. While awarding sentences also, the tribal's are not treated equally. Many times a severe punishment is imposed on the ground that in Tribal community there is practically no scope for improvement because of the environmental

distinction. In this context, I would like to draw reader’s attention to the observations of the Supreme Court in Mohd. Giasuddin vs. State of Andhra Pradesh (AIR 1977 SC 1926): "Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals mental and moral-is the key to the pathology of delinquency and the therapeutic role of 'punishment'. The whole man is a healthy man and every man is born good. Criminality is curable deviance. The morality of the law may vary, but is real. The basic goodness of all human beings is a spiritual axiom, a fall-out of the advaita of cosmic creation and the spring of correctional thought in criminology.” If every saint has a past, every sinner has a future, and it is the role of Law to remind both of this. The Indian legal genius of old has made a healthy contribution to the word treasury of criminology. The drawback of our criminal process is that often they are built on the bricks of impressionist opinions and outdated values, ignoring empirical studies and deeper researches. India, like every other country, has its own crime complex and dilemma of punishment. Solutions to tangled social issues do not come like the crack of dawn but are the product of research and study, oriented on the founding faiths of society and driving towards that transformation which is the goal of free India. Man is subject to more stresses and strains in this age than ever before, and a new class of crimes arising from restlessness of the spirit and frustration of ambitions has erupted. Thomas Fuller rightly observed: "To punish and not to prevent is to labor at the Pump and leave open the leak". “Be it our part to stand for all those who suffer,” in the words of Rabindranath, “for those who are, the poorest, lowliest, and the lost.” Shelley said that Poets are the acknowledged legislators of the world and sang“Are we not formed, as notes of music are, For one another, though dissimilar”. The Poet and Adivasis are waiting for an empathic “Yes”. from the society at large.

Criminal Tribes Act

Prior to independence, British Rule had a mixed impact on the different ethnic groups in the country. Even the Europeans and Indians were treated differently. This is borne out by the different procedures prescribed for their arraignment and trial. Though regrettable the differences had a parallel in the past and were certainly not as pernicious as the older ones which discriminated on the grounds of caste or community. This is not to say that the colonial enforcers of law and order meted out even-handed justice to all those under their rule. Their actions were colored by their perceptions of the local condition and also the imperial fiat. This blending had curious results. Very few amongst the aboriginal groups had come into conflict with the English rulers. The alienation of these groups from the non-adivasis ruling powers was well-nigh total. But some sections of the tribal’s, whether as mercenaries or loyalists of the old order, had clashed with the British. The first group was again divided into the absorbable and the non-absorbable. The first concentrated in the eastern regions were left alone. They lived in inaccessible, infertile and unhealthy regions. Their numbers were few and their isolation from the plains folk required the minimum of policing. They did not harbor ineradicable grudges against the colonial power. The foreign ruler permitted proselytisation and as the missionaries did not demand too sharp a break with the culture of the tribal’s, the area of conflict was considerably reduced. In this environment, the laws were liberal and their implementation was rigorous. In fact, the tribal’s were looked upon as unspoilt in a sharp contrast to non-tribals whose loyalty was suspect. The indigenous element in the administration had no desire to tangle with the favoured tribals and in any case their contacts with these tribals were too limited to spark lasting repression. The other class of absorbable or ignorable tribals were those whose habitants and inclinations were more or less similar to the inhabitants of the eastern region. A penurious existence, feared and reviled by their non-tribal countrymen and debilitated by the recurring famines and epidemics, these groups retreated into their shells. Their worsening condition compelled them to pilfer and sell themselves or their womenfolk into bondage. The aftermath of every offence- whether big or small-committed or suspected as theirs entailed severe reprisals. The ruling power had the willing co-operation of the non-tribals in the ruthless retaliation. The repression had the designed effect of curbing revolts by the subjugated aboriginals. The unassimilated, non-absorbable and not to be ignored tribals who constituted the majority met with a different response. The areas they lived in

were under strict surveillance. This task was assigned in the first instance to the village servants, the constabulary supervising over them and personal visits to the areas by the higher officers. Every out break of crime and assertion of rightsthe two being synonymous in the eyes of the rulers-was met with lethal repression. Physical torture was openly resorted to, the common myth being that the tribals being hardened criminals did not respond to other methods. Deaths while in custody may not have been very frequent but other forms of chastisement like beating, starving and molesting their women-folk were rampant. Complaints were shrugged off as exaggerations and not voiced by or on behalf of those who richly deserved the treatment meted out to them. The police, always anxious to reach or over-reach their 'quotas' had no compunction in cooking up cases against the unfortunates. Whole hamlets and localities of the miserable people were lined up whenever crimes against property took place. In unsettled times it was common to compel whole villages or localities of the tribal populations to spend the hours between sunset and sunrise in compounds of police stations. Periodical attendance by the entire adult population of the suspects at police stations was commonly enforced. The magistracy, more loyal to the crown than the Emperor's kith and kin, was most ruthless in dealing with the tribals. Bail was denied and if granted conditioned so as to make it well-nigh impossible to be furnished. Sentences were grossly disproportionate, the first disproportionate, offender being lucky if he got a sentence of whipping. Two points require to be made. Firstly, the colonial rulers could be repressive towards the tribals because the non-tribals were their allies and perpetrators in the worst of atrocities upon the tribals. Next, there has not been much of an improvement in the attitudes after independence. Mahatma Gandhi wrote in 'Harijan’ dated 1st August 1936: “Perhaps there are not many places on this Globe where crime is the profession of tribals as it is in India and it flourishes under the garb of religion. We have therefore in this country, law called the Criminal Tribes Act". It appears from the article written by Gandhiji that Adivasis were told by some persons that if they embraced Islam, they would be helped to become free from the application of the Act, and the stigma of being criminal tribe would no longer attach to them. Gandhiji also observed that criminal tribes and untouchable castes are a scourge upon Hindu Society for its godless treatment of its own members in the sacred name of religion. You cannot have a diseased

limb without the whole body being affected. Therefore, the only effective method is to reform from within. In a representation submitted by Rajwar Community of Bihar to Gandhiji a complaint was made that whenever there was any theft, larceny, dacoity or any other crime in locality where this community was living, the first suspicion and the first brunt of the police enquiry must be borne by their community, although there might not be slightest evidence for the same. The whole community was subjected to the rules and regulations of criminal Tribes Act. The members of this community, if they wanted to give their sons and daughters in marriage to those living in a different district, were not allowed to do so. They were obstructed by the authorities as well as people from their own caste by adopting all possible means so as to make such alliance impossible (Young India dated 25.6.1931). (Young 25.6.1931). These were known as Slave Communities. State has delegated the legitimate use of violence to its police department. As a result, police find themselves both in dispensing violence in the name of the State and Preventing others from using violent techniques to achieve their own private end. The club and gun symobridge this authority and permit him either to persuade or to enforce compliance with the law. There is an inherent contradiction in the police efforts to enforce law and keep peace. The duty is made complicated by two factors: nature of the Law and the nature of the working relationship the officer must develop with people. With tribals police have only one relationship, that is, to treat them as criminals because the colour of the skin is visible but that of income is not. In our country poverty itself is a crime. Article 14 of the Constitution declares that the State shall not deny to any person equality before Law or equal protection of laws within the territory of India. However, at least up to 1952 the Criminal Tribes Act, 1924 remained on the Statute Book. The Criminal Tribes Act, 1924 came into force on 15 March, 1924. It was an Act of consolidated laws relating to Criminal Tribes. The very title of the Act was disturbing. I fail to understand as to how the Tribe as a whole could be Criminal. It is also surprising as to how a person becomes criminal only because he is born in a particular tribe. A label of criminal is attached to his personality since his birth. Normally society creates the crimes and then criminals commit it; in India, tribe itself was declared as a criminal tribe. If the Provincial Government has reason to believe that any tribe, gang or class or any part thereof is addicted to systematic commission of non-bailable offences, the Government was authorised to declare that such tribe, gang or

class, as the case may be, is a criminal tribe for the purpose of the said Act. The Act required registration of members of criminal tribes. It laid down procedure for such registration or its alteration. The District Magistrate or an officer empowered by him, in that behalf, was authorised to take finger impression at any time. The members of the Criminal Tribes were required to report themthemselves at the fixed intervals and notified places of residence and any change or intended change in the residence to the authorities concerned. The Government was empowered to restrict the movement of the tribes or settle their place of residence. It had power to establish industrial, agricultural or reformative settlement for the criminal tribes. In substance, there was special legislation dealing with the criminal tribes. This Criminal Tribes Act, 1924, came to be repealed by The Criminal Tribes Laws (Repealed) Act 1952, from 26 March 1952. However, though the law came to be repealed, the practice still continues at least in some parts of India, because we are more interested in ‘Law and Order and not worried about social disorder. One fails to understand as to how there can be Law and Order, when the Social Discord is a reality.’

Adversary System of Trial
Our laws have recognized the adversary system of trial of criminal cases. Such a system demands that every accused person should have a fair trial, including the right to cross-examine the witnesses of the prosecution, produce his own witnesses and present his defence. Our laws also declared that every accused person is presumed to be innocent until proved guilty. An indigent accused unable to afford his own lawyer is required to present his defence and argue his case alone and unaided. His plight is likened to that of an unarmed gladiator compelled to defence himself as best as he can against a fully armed opponent. The law is bewildering jungle of rule and precedent which confounds both lawyers and judges alike. How can one expect a poor person, perhaps uneducated and illiterate, to conduct his defence successfully, to cross-examine the witnesses produced on behalf of the State, to call witnesses on his own behalf and to argue on his own behalf technical pleas based on the sections of statute unintelligible to him or on precedents or decisions of the court to which he could have no access. Can we say in such cases that an accused person was given

full benefit of the constitutional guarantee of equality before the law and the equal protection of the law? In the famous case of Powell v Alabama, the U.S. Supreme Court observed: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequate to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step of the proceeding against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more is it of the ignorant and illiterate, or those of feeble intellect” The Committee appointed by the United States Attorney General to report on poverty of administration of federal criminal justice has observed: “While the government may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice.” The laws today are becoming more and more complicated. It is difficult for even lawyers and judges to keep abreast of them. One can therefore well imagine the plight of a layman. That everyone is presumed to know the law may be a sound legal maxim and no one questions its necessity, yet the fact remains that it embodies within itself a great myth. A modern welfare state has to undertake legislation on mass scale. This taken along with the speed at which laws are being enacted creates a vast agglomeration of laws bewildering the citizens who are neither able to comprehend them nor understand their implications. There is always one or other aspect of law which touches most of us. Not many in the country can afford to engage lawyers to give them proper advice and guidance and to apprise them of the impact of those laws on their rights and obligations and of the

necessity of complying with certain legal requirements. A majority of citizens are law abiding and do not want to violate the law. Danger, however, is that they may infringe some provisions of law as a result of ignorance. It is here that legal aid bureaus can prove useful, for they can create awareness in the citizens of their rights and obligations and bring home to them the necessity of complying with certain legal requirements and formalities. (Law, Men of Law and Education: Justice (Law, S.R. Khanna, pp 65-67)

Concurrent Judgment
In earlier days each Judge wanted to write his own judgment, though in many cases they agreed with the final conclusions. A judgment of dissent can well be understood, but the judgment of concurrence, particularly when they happen to be long and contain reasons which cannot always be reconciled with each other, present a problem to subordinate Courts, which they have to incorporate. It was a sort of Solar System, each Planet turning on itself. This tendency to write long, elaborate repetitive concurrent judgments continued until Justice S.R. Das with his tact and ability to carry his colleagues with him tried to control that tendency and gradually concurrent judgments ceased to be normal. When Justice P.B. Gajendragadkar became the Chief Justice, concurrent judgments had become very rare. There are two views on the subject. The Privy Council wrote only one judgment. M.R. Jayakar, who was a member of the Privy Council, said that on the matter on the Hindu law, where he did not agree with the majority, and after discussion, the majority view was accepted. Jayakar was asked to draft the judgment. This was the Privy Council practice. But then the Privy Council did not pass the decree. It merely tended advice to the Crown. In the House of Lords and in the Supreme Court of the United States, separate judgments were common. These Courts did not follow the convention that the Court should speak through one judgment and only dissent is expressed separately. In this respect Justice P.B. Gajendragadkar writes: “….When we had a Federal Court followed by the Supreme Court, we were building a new tradition in India. High Courts were some what puzzled when passages were cited before them, one reconcilable with the other both supporting the same conclusion. What reasoning they were to follow was a question, which baffled most of us. That is why on purely practical grounds the High Court Judges generally prefer

that the Supreme Court should speak through one judgment, leaving the dissenting Judge to write his dissent separately. This is by the way and also by way of repetition, because what I felt as a High Court Judge, I continue to feel even today.” (To the Best of My Memory: P.B. Gajendragadkar, pp- 132-133) (To 132-133)

Element of Chance
In the matter of Judgments, sometimes there is an element of chance and it depends, which Judges hear a particular matter. In this respect, the judgment delivered by Justice M.C. Chagla, in his capacity as the Chief Justice of Bombay High Court in the matter of the Bohra Chief’s powers of excommunication of any of his followers can be cited, which was reversed by the Supreme Court. The judgment of the Bombay High Court by Justice Chagla acclaimed as a progressive judgment when it was delivered, unfortunately received a knock-out blow when the Supreme Court set it aside. The Bench that heard the appeal could not appreciate Chagla’s judgment and held that the Bohra Chief’s power of excommunicating his followers was not unconstitutional. Justice B.P. Sinha alone differed. The view Chagla took was progressive and consistent with the dictum of Justice Holms that law should be so interpreted by Courts that they should take into account the felt necessities of times. When the attention of Justice P.B. Gajendragadkar, who was then in the Supreme Court was drawn to this judgment, he told Justice B.P. Sinha: “If I only had been on the Bench, I would have joined you and two of us could have easily got a third one and by majority, we would have upheld the sound, progressive well-reasoned judgment delivered by Chagla. Gajendragadkar wrote: “Is it necessary to make any argument that the felt necessities of the times, and indeed the very spirit of the Indian Constitution, want that this obsolete, arbitrary power of excommunication vested in a religious head should be struck down as it was struck down by Chief Justice Chagla consistent with the broad, progressive view of the function of Law?” (To the Best of My Memory: P.B. Gajendragadkar, pp- 148-149) Justice Chagla in his book, ‘Roses in December’ on page 161 wrote: “The Supreme Court took narrow and a rigid view of the law, and refused to interpret it in a manner, which would help the larger public interest.”

In this context Justice Dharmadhikari makes a reference to the Bombay Prevention of Ex-Communication Act, 1949. He says: “On 10 th November 1949 this Act was passed by the Provincial Legislature of the then State of Bombay declaring the practice of excommunication to be invalid. It also prescribed penalty for offence of excommunication. said Act reads as under: “Notwithstanding anything contained in law of customs or usage for the time being in force to the contrary, no excommunication of member of any community, shall be valid and shall be of any effect”. The Act also provides the penalty for the offence of excommunication. The background of the said Act is clear from the preamble of the Act which reads as under:“Whereas it has come to the notice of Government that the practice prevailing in certain communities of ex-communicating its members is often followed in a manner which results in the deprivation of legitimate rights and privileges of its members; And whereas in keeping with the spirit of changing times and in the public interest, it is expedient to stop the practice.” After coming into force of the Constitution, by Article 17 untouchability came to be abolished. There is very little difference between the evil practice of untouchability and practice of ex-communication. This ex-communicating is the weapon used by the Tribes against its members for enforcement of their evil and illegal customs also. However, unfortunately the said Act came to be challenged by head of the Daudi Bohra Community. The Division Bench of the Bombay High Court consisting of Chief Justice Chagla and Justice Bhagwati negatived the contentions raised on behalf of the head priest of Daudi Bohra Community. In Saifuddin vs. State of Bombay AIR 1962 SC 853, by a majority judgment the Supreme Court declared the said legislation as void and reversed the judgment of Bombay High Court. Therefore, today there is no law in the field which prohibits excommunication. The ex-communication is a weapon which is frequently used by the heads of the tribes for perpetuating evil and illegal customs and the women are the worst sufferers. This puts in jeopardy the whole process of criminal justice. Therefore today in the field, of criminal justice there is a parallel judicial system so far as the tribes are concerned.” Justice Dharmadhikari says: “In my view an enactment prohibiting excommunication from tribes and Communities is absolutely necessary and this Section 3 of the

should be done even by amending the Constitution. Because of the inbuilt constraints and the sanction to the ex-communication, the tribes are even today governed by their own age old laws and customs.”

Religion and Rule of Law
I am a judge by profession. A judge is supposed to pronounce his judgment after hearing both sides, because ultimately every case must end in a judgment. Conventionally a Judge is supposed to have no opinion of his own. Even if he holds an opinion, he is not expected to express it, except in his judgment. It is our experience that persons who hold strong opinions are normally carried away by their opinions it is the opinion which holds them. I am not an expert either in the field of religion or in rule of Law, neither am I a jurist. However, whenever I think of experts, I am reminded of the story in Aesop’s Fables as told by my father. A school teacher asked his pupils a question: “Seven persons once came across an animal. The first felt that the animal was like a pillar, the second thought that it was like a wall, the third felt that it was like a winnowing fan and winnowing the fourth felt that it was like a rope. Tell me who are these persons ? A boy who had read the Aesop’s Fabes said, “Sir, they were blind”. A bright one got up and said, “Sir, this is not a correct answer. We should not do injustice to the blind men. They were not blind but they were experts and specialists. This is why each one of them saw part of the elephant. No-body could see the whole elephant”. This is the normal perspective of an expert or a person who stands committed to a particular-ism or opinion. His views are, therefore, likely to be partial, if not one-sided. A layman like me who has no background of specialised knowledge may not be able to place before you lofty thoughts but it is likely that I may cover wider horizon. It is said that normally a human being cannot be measured, weighed or estimated because he is the measurer of things. As a Judge it is my duty to make a search for truth. An attitude of inquiry is the basis of this search. Readiness to understand and appreciate another man's point of view is the essence of the search for truth. It is not tolerance, for we tolerate something we do not like. This is not charity of judgment either. This is humility, a distinct characteristic of an attitude of enquiry. There can be no compulsion, no coercion in search for truth. One is very eager to understand and appreciate another man's point of view appreciate because freedom to think has no meaning if one has not the freedom to think differently. It is not a concept nor a doctrine nor an abstract principle. It is the doctrine

content of one's own life. This is what I have learnt from the writings of Adi Shankaracharya as well as His Holiness Jagadguru Chandrashekharendra Saraswati. We cannot forget that we are bound to the past by a strong invisible chain, which is ever lengthening with times, but which remains unbroken and unbreakable. Therefore, whatever we do or attempt to do, care will have to be taken that while we move forward to our destiny, the long and strong chain that binds us to the past is not weakened but strengthened at every step. There cannot be any objection for accepting the good that the West can give us but we objection should remember that all that glitters in the West is not necessarily gold. Our own country has produced concepts and traditions of a high order that are likely, with passage of 'time, to influence more and more the destinies of the whole race of mankind. The word 'Dharma' which is translated in English as 'religion' does not convey its total meaning and effect. Etymologically the word 'Dharma' has been formed from the word 'Dhru' which means to hold. Holding together the together individuals for maintaining the stability of the society and world at large can be described as the essence of Dharma. It is also called as eternal truth, because Dharma. perseverance of the eternal can be of ‘truth’ or ‘Satya’ only. From Gandhiji's 'Experiment with ‘truth’; we learnt that, initially his search started with God is truth'. He then realised that Hindus, have 33 crore Gods, the Muslims had a different God and the Christians another. How can there be several truths? Gandhiji therefore came to the conclusion, after his experiments, that truth is God. However, in .spite of the best efforts it is really difficult to define the word 'religion'. This is the reason why the said word has not been defined in our Constitution also. It is a term which is hardly susceptible of any rigid definition. In an American case, Devis vs. Bishen, it has been said, "the term 'religion' has Bishen, reference to one's views of his relations to his Creator and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with 'cults' of form or worship of a particular sect but is confounded distinguishable from the later." Our Supreme Court, in Commissioner, Hindu distinguishable Religious Endowment, Madras vs L.T. Swamiar A.I.R. 1954 S.C 282 found that this definition cannot be regarded as precise or adequate. It is certainly a matter of faith with individuals or communities. It is undoubtedly based on the system of belief or doctrine, which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that a religion is nothing but a doctrine or belief. Religion may not only lay down a

Code of Ethical Rules for its followers, it might also prescribe rituals and observances, ceremonies and modes of worship, which are regarded as integral parts of religion and these forms and observances may extend even to the matters of food and dress etc. In a recent case in S. P. Mittal etc., vs. Union of India & ors. (All India Reporter 1983 Page 1) relating to Auroville township in Pondicherry, the supreme Court had an occasion to consider the ambit, scope and implications of word religious denomination'. This is what the Supreme Court held in the said judgment: "The word ‘religion’ has not been defined in the Constitution and indeed it indeed is a term which is hardly susceptible to any rigid definition. In reply to a question on Dharma by Yaksha, Dharmaraj Yudhishthira said thus: Tarkoprathistha Shruitayo Vibinna Naiko Rushiryasya Matampramanam. Dharmasya Tatvam Nibitam Guhayam Mahajana yena Gatahas sa Panthah. (Formal logic is vascillating. Srutis are contradictory. There is no single rishi whose opinion is final. The principle of Dharma is hidden in a cave. The path of virtuous persons is the only proper course) The expression 'Religion' has, however, been sought to be defined in the 'Words and Phrases'. Permanent Edn., 36 A. P. 461 onwards, as given below: ''Religion is morality, with a sanction drawn from a future state of rewards and punishments". "The terms 'religion' and 'religious' in ordinary usage are not rigid concepts". ''Religion has reference to one's views of his relations to his Creator and to the obligations they impose of reverence for his being and character and of obedience to his will." "The word 'religion' in its primary sense (from 'religare', to rebind, as in, to bind back), imports, as applied to moral questions, only a recognition of a conscious duty to obey restraining principles of conduct. In such sense we suppose there is no one who will admit that he is without religion."

In a later Judgment, Super Court held that it is a way of life. But question remains, whose way of life? And one cannot ignore as Laski has said, that maximum violence and brutality has taken place in the name of religion. But the rule of law is a step forward because there is no reward for obeyobeying law since it is your duty. It is a normality; but there is punishment, if you disobey it. In all developed societies a form of government is chosen which believes in believes rule of law than rule of man. In a democratic society existence of rule of law or obedience to it depends upon the respect for the law rather than fear of its sanction. As it is well said, ''Fear is a dark room where only negatives are negatives developed". No legislation can stand on its own legs unless it receives sanction of public opinion. Protection of the individual against every power is now a days the most urgent problem within the genera! context of Judicial Protection. As said by Mahatma Gandhi, "I have not pictured a poverty stricken India containing ignorant millions. Independence must begin at the bottom. Every village should be a republic". As Victor Hugo has defined, ‘republic’ means a daily plebiscite of its people to live together. This living together is the essence of the rule of law and in my humble opinion, of the religion also. The Upanishads have proclaimed: "Law is the King of Kings, far more rigid and powerful than they; there is nothing higher than law; by its powers as by that of the highest monarch, the weak shall prevail over the strong". This dynamic and potential sphere of law cries for fuller exploitation in these unequal times The word 'democracy' is used to denote management by the people of their own affairs. Therefore, one’s liberty to swing his hands ends where the tip of other man's nose begins. A religious man is not necessarily spiritual or normal. There are three things which are common to all religions of the world faith in God; Ethics and our relationship with other men, animals and nature. Normally, as in mathematics, common factors get cancelled, in the religious field also after cancelled, cancelling these common factors, what remains is known as religion. For example, I am a Hindu. I tell lies. My Muslim friend also tells lies or speaks the truth. Still, we are Hindus and Muslims because telling lies is common, as speaking truth is also common. Normally whenever people think of religion they are more concerned with the life after death. Therefore, we have always led a concerned life of duplicity, ours is a split personality and we have been blowing hot and cold

in the same breath. In the old days Maulana Mohammad Ali once gave vent to a very controversial proposition: He said: "I am first a Muslim and then an Indian." Sarojini Naidu replied with equal emphasis, ''I am a Bengali by birth, Andhraite by marriage, a Muslim by residence (because she lived in domains of Nizam), English by education but Indian first, second and last". There was a Muslim leader in Punjab called Barrister Dr. Mohammad Alam. Someone asked him a question, “Dr. Alam what are you. First-a Muslim or an Indian? He replied, “this is a wrong question to ask. Why don't you ask me, “To whom do you belong first: to your father or to your mother?” And my answer would be that I belong to my mother, as much as I belong to my father and because I belong to them both I am their son, an Indian”. I think that this is the reply that should occur spontaneously to every Indian, who wants a revolution and to change the present order of things from top to bottom and in all realms of human consciousness. There is a vast difference between our Constitution and other ConstituConstitutions. There is a misunderstanding that we have borrowed much from the American Constitution. You can neither borrow Constitutions nor the revolutions from anybody. In America, you can be a citizen of a Stat, as well as of America. Thus the American Constitution has accepted dual citizenship. In our country, you can be a resident of Madras, you might belong to the Hindu faith and at the same time be a Maharastrian or a Gujarati, still you are a citizen of India alone. We have not accepted dual citizenship. After 63 years of independence, our difficulty is that Indian citizenship is not a reality but is a fiction. A citizenship cannot be denominational, fractional and secondary. In this country, we have fractional citizens and secondary citizens. We treat the Harijans as untouchables and if I am not wrong even the women as second class citizens even as a second class human being. In Maharashtra, we have temples for goddesses at Tuljapur, Kolhapur, Mahur and other places. In spite of this worship of Goddesses, practically every day women are raped and atrocities on women are increasing. We all are tolerating it and still we are going on with the worship of Goddesses. This is nothing but a religious split personality. Organized religion becomes religiosity, which in real sense is irreligion. Such a religious person may not be spiritual or moral, in true sense. Marriage without 'Tali' is unknown in Tamilnadu. According to Constitution, a woman can be a Prime Minister, she can be a Judge, the Commander-in-Chief;

she can be a constable, a Sub Inspector,. Commissioner of Police, but whenever a girl is born in your family or mine, she is not welcome. Yet we go to the Ashtalakshmi temple for worship. Adi Shankaracharya, the Philosopher of Advaita philosophy would have said with reference to rule of law the same thing as said by one of the English authors, “While there is a lower class, I am in it; while there is a criminal element, I am of it and while there is a soul in prison, I am not free". In the context of rule of law, I feel that this is the philosophy of Advaita. Even today all legislations are based on the assumption that the vast majority of citizens will respect the Law. Jails are therefore provided only for the few and not for the majority of the people. Even in jails nowadays there is less emphasis on authoritarian discipline. We want to convert jails into reformative schools. Freedom connotes self discipline and self control. I know that the prisoners from the Yervada and Nagpur jails have freedom to appear for the University examinations, even for the Ph.D. Therefore, the doors of all prisons are opening towards Universities. But unfortunately the doors of the Universities are opening towards prisons! The complex question before the Rule of Law is what will be the sanction for the law, whether it will be Punishment or Public opinion. Adi Shankaracharya has said somewhere that the power of Almighty is limited in the sense that he cannot break his own laws, the "Niyati". This very limitation constitutes his glory and omnipotence and this is what is known as Rule of Law. Science has been successful in achieving the goal of longevity of life. Suppose tomorrow science is able to win over death, then what will happen to our civilization or religion? Normally because of ignorance about our birth and the fear of death we go to the temple. Once that fear of death is lost, then I am afraid, nobody will bother about God. Suppose there was a guarantee that nobody would die even in an accident, would we drive the car on the left side of the road? Thus, all the rules of the road and of civilization or Godliness are based on ignorance of birth and fear of death. If that is so, it is not a real civilization even a rule of law or true religion. As said by Gandhiji, civilization is that mode of civilization conduct which points out to man that the path of duty, performance of duty and observance of morality are convertible terms. To observe morality is to attain mastery over our mind and passion, so doing we know ourselves. Thus, Adhyatma or spirituality or civilization means good conduct. This is nothing but Rule of Law.

But do we really want Rule of Law or equality? George Orwell has written a marvelous book entitled, 'The Animal Farm". I shall present its theme in my humble way. There was an animal farm where all kinds of animals lived. There was also a man who was looking after this whole farm. The animals thought that in these days of democracy why should we tolerate dictatorship of a man. Therefore they united together and drove him out. After the human being was driven out, for good administration of the farm, the animals decided to have their own code of conduct in the form of a written constitution. So they formed a constituent assembly. The preamble of animals' constitution read, ''We the animals of this farm assembled in this august constituent assembly to give to ourselves, on this day this Constitution". Then the first article was moved which Constitution". read, "All animals are equal’. When the article was put to vote and was likely to be passed unanimously, the elephant stood up and said, "what do you mean by this? You are drafting the constitution like men. It is right for them? What about us? What do you mean by this article? You mean to suggest that an animal like me (elephant) is equal to these pigs? Am I equal with these asses or donkeys? What sort of constitution is this? You have no sense of proportion? You are acting like a human being.” So an amendment was moved, and, ultimately the article passed read, ''All animals are equal but some animals are more equal than the others". The second article was moved which read, "No animal shall kill another animal," which can be equated with the principles of Panchsheel. When this article was being passed the cat stood up and said," what do you mean by this? Shall I not catch mice from tomorrow? It is after all a question of my life and death”. Therefore again an amendment was moved, and ultimately the article read, "No animal shall kill another animal without a cause." Thus the amendment nullified the article. Then a question was posed as to who will decide the cause. Lion who was in the Chair, ruled, "one who is hungry". We the men, in spite of the clause of equality in our constitution are trying to become more equal than others, may be in the name of language, religion or caste. This is negation of equality, of spirituality, and also the Rule of Law. Pickwick was once asked by his friend a very difficult question: "how to act when in doubt". He said that ''when in doubt follow the crowd". But it did not solve the problem. His friend again asked what to do when there are two crowds and/or mobs. "Follow the larger one" was Pickwick’s prescription. But there is a prescription. world of difference between the mob, crowd, and people. What is mob- a faceless, amorphous blob of population. A mob is a collection of people,

collection of people which has several heads, but no brains, several breasts but no heart. On the other hand people have consciousness, a purpose. People gather together with certain purpose. So democracy and Rule of Law is not crazy of crowd. Democracy and/or republic indicate the will of the people to live together as common citizens of a country and this is impossible unless they are bound with each other with certain norms, which is known as Rule of Law. However now-a-days normalities of life are changing. In terms of Journalism, ''News is an item or event which is uncommon”. Common day events or normality has no news value. Some days ago I read a news item in a news paper in Bombay. It described an incident which took place in a bus. A lady lost her purse containing some amount in the bus. It was picked up by a Professor and he reached it to a Police station. Policemen found out the lady and the purse was reached to her with the whole amount intact. The title of this news item was 'Honesty of a Policeman, because it is also not normality. The professor’s picking up the purse and reaching it to police station and policeman's handing it over to policeman's the lady had a news value because it was not a normality. Don't you feel it rather painful that after independence in this country, we everyday read in the independence newspaper news about honesty? We read news about teachers and other highly respected professionals doing their work honestly. They are rewarded for it, as if doing your duty honestly is not the norm. Yet we say our country is a religious and spiritual one. In a discussion between Jawaharlalji and Vinobaji, the question regarding regarding corruption in the country, in public life and administration, figured. Vinobaji replied that he was not afraid of it, because corruption is after all done by the corrupt people and corrupt people are never respected by society. However, he added that after several years of independence he had started worrying about corruption because 'Brashtachara has become Sishtachara.' 'Brashtachara become respectability. And still we say our country is a religious and It has achieved spiritual one. We

are told that in the Vedic Period, rivers of milk and honey flowed in this country. But it did not flow for all. Krishna's best friend, Sudama, or Ashwasthama were not endowed with the things he himself enjoyed; In Ram Rajya, which we want on this earth, the Adivasi Shabri could offer only a 'ber’ fruit to Ram and nothing more. Therefore, by mere benevolence and without equality, you cannot solve problems on earth. You will find from our history that this spiritual and religious country was for more number of years under the Moghuls and the British. It was not a free nation. After independence also, the cleavage in social life has not

ended. The social and economic map of the village has not changed and unfortunately even the inequality is supported in the name of religion. The Rule of Law presupposes that everybody wants equality and to abide by the law. Respect for the laws, and for law-abiding citizens is the very essence of the Rule of Law. In this context, I would like to make a reference to my own experience. When I was practicing in Nagpur one of my friends-who was working with me in the Students Movement and now is practicing at Patna-asked me, “Dharmadhikariji, you have been living in this city for the last several years. You are a leading practitioner. What is your dignity and status in this City?” I told him that there is no thermometer to measure one's dignity and status. There is thermometer no tape to measure it,” I said, “and therefore it is not possible for me to tell you, what is my status or my dignity in the Society.” I do not know why, but I put him the same question and asked him what is his status or dignity in Patna. He was also baffled but ultimately in his own ingenious way, he told me if he rides his ultimately bicycle without lights throughout Patna City, no policeman will apprehend him. This much respect and status he commands in the City. We are told that in the Moghul era there were Subedars who were authorised to commit four or five murders without fear of punishment. So after 63 years of independence, we have reached a stage where we have Subedars who can do anything with impunity. In anything substance, it means that your capacity to break laws alone decides your dignity and status in the society and still we call it a Rule of Law. This is a Yaksha Prashna-a moot question, before us all the basic human relationship which alone Prashna-a can prevent the crimes and preserve moral and spiritual values. Religion or spirituality can help the 'Rule of Law by' creating such an atmosphere in the society. It is not merely the crisis of character but it is crisis of values. Oscar Wilde has defined the word ''cynic", meaning thereby, ''cynic is a person who knows the price of everything and the value of nothing”. Price is fixed or determined on the basis of its exchange value, in economic market, whereas the exchange value stands on its own legs. Unless we have certain basic values in life, we cannot have the 'Rule of Law.' In a democracy like ours, we have a legislature, we have a judiciary and we have an executive. If there were no independent judiciary, political democracy would be impossible. Persons who have money power or muscle power can get their jobs or work done by following some well-known methods. But the common man who is the very foundation of our constitution cannot get his work done anywhere has merely to suffer injustice at all levels. He has only

one place open to get justice, that is, the court of law, temple of justice. I am reminded of a story told by my father several years ago, when Cripps’s Commission came to India, and a proposal for Dominion Status was made. There was a trader dealing with tin fowls. His business was a simple one. After killing chickens he used to fry them in a masala, then tin them in an air tight tin box masala, and export them. When he read in the newspapers that in a civilized country, a right of self-determination and franchise is being conferred on everybody, he self-determination also thought as a civilized man that he should also confer similar right on these fowls, including chickens. Therefore, one fine morning he called a meeting of his including birds and put forward a proposal before them, that they shall decide by secret ballot as to in what masala he should fry them after they are killed. One of the chicken got up and asked the trader, "suppose while exercising our right of franchise we cast a vote that you shall not kill us, then what happens? The business man in his usual humility replied that the question would not arise. Decision on that behalf has already been taken, you have only a limited right of franchise or self-determination that is, to choose the masala to be fried in. in. Friends! Even in our democracy, if there is no independent judiciary or 'Rule of Law', citizens of this country will be exercising a similar right of franchise after every five years. It will be in the nature of choosing masala only. If we want true democracy, we must have an independent judiciary and the 'Rule of Law. As said by Justice Holmes, "Moral laws do not become due process of law by securing assent of terrorized jury." As well said that the true role of a Judge is that he does not bother as to which side you are. Whichever side you may, you must persuade the Judge, not that you have got money or that you have got votes but your cause is lawful and just. As said by Webston, "There is no character, on earth more elevated and pure than that of a learned Judge. He exerts influence like dews of heaven falling without observation". I think this is the most religious observation". and spiritual duty. Thus, unless there is 'Rule of Law,' the dignity of an individual is not assured. Therefore, a judge, is called Nayamurty and the Court Nyayamandir. In the words of Emerson, rings and jewels are not gifts. They are apo logies for a gift. The only gift is the portion of Thyself. This is what the spirituality and Rule of Law expect from us all.
(Extract from the Commemorative Lecture.)

Swaraj - A Distant Dream

The word "Swaraj" which is translated in English as, "independence" does not convey its total meaning or effect. The word "independence and freedom" though appear to be similar, they occupy different field and area. We wanted both, that is, independence and freedom and the “Swaraj” is combination of both. It can be said that we have achieved political independence but we have yet to gain freedom. Freedom means freedom from all sorts of exploitations and slavery, political, religious, economic as well as social. Such a freedom or Swaraj was our dream. In Swaraj every village should be a republic and republic means a daily plebiscite of its people to live together. This living together is the essence of rule of law and Swaraj. It is true, that we also wanted eradication of famines and poverty because they stifle human life. But that itself will not constitute a good or dignified life. The root of man's happiness lies in the warmth of human relationship-relationship between man and man and their attitude to share weal and woe. We wanted a dignified place for an unqualified, uncommitted, unlabelled common man. He should not only be the object of Swaraj but will be the foundation and the subject of Swaraj. He will not be a mere onlooker but will Swaraj. be a participant. In free India or in Swaraj, people will preserve and foster mutual relationship and compassion. The Indians will not only live as neighbors but will live together with a sense of belonging. But unfortunately, a common man is increasingly being reduced to an object and instrument of economic, social and political planning and is losing his function as well as role. Social change, in Swaraj is not something that can be achieved by discovering super physical motivations, which are now being used by political agencies or religious agencies to enslave the man. To say the least, today, political party is a conspiracy against the common man and its leaders have become dealers or bidders in the auction of popularity. Swaraj begins from Gram Swaraj that is, from the grass root level. Citizen participates in the administration or governance by casting a vote or paying tax. But, today, both these weapons are tainted. Instead of casting vote, a voter now-a-days votes for a caste or community. It is the caste, cost and corruption which is spoiling “Swaraj” at all levels. Evasion of tax has become a “Swaraj” status symbol and unfortunately one’s capacity to break laws alone decides the dignity and status in the society. In the absence of an all-Indian mind or attitude, Swaraj is impossible. Rule by candidate is not democracy, the persons who were never candidates or were not in the race for power are the builders of India. When we achieved independence I thought that now things and services will be

available to those who need it and not only to those who can purchase it. Today, unfortunately medical aid or a legal aid is available to a person who can purchase it even if he may not need it. A poor man who is ill will not get the medicine if he has no money to purchase it. The medical aid system is statusoriented or money-oriented; is definitely not disease-oriented. Everywhere it is money market and it is the poor man who is the ultimate sufferer. "Today, we pay Rs.12 to Rs.15 for one litre of water, whereas a poor milk producer gets Rs.5 to Rs.7 per litre for his produce. Thus, the water is costlier than milk. This is not Swaraj of our dream nor the Ramraj of Gandhiji's dream. This is to say the least, is "Haramraj" which is worse than slavery. Therefore, I say that we have not achieved “Swaraj” as yet. Our constitution recognizes only one citizenship i.e. you are only a citizen of India. You may be resident of any State or a place, might belong to a caste or community or language may be different but you are not a citizen of State or city. You are a pure and simple citizen of India. Today, citizen of India is a fiction and not a reality. In our constitution, we have not accepted the concept of duel citizenship but in reality we have a denominational citizenship which depends on your creed or community. Then there is a fractional citizenship. Women, untouchables and adivasis are not considered whole numbers, they are not only second class citizens but are second class human beings. We are Maharashtrian Indian, Gujarati Indian, Hindu Indian, Muslim Indian and as is the case in mathematics, the common factor i.e. Indian, gets cancelled. We have not yet lifted ourselves from the parochial regional littleness to nationwide dimensions. India is still a ‘country’ which is a geographical concept and not the nation. Because the nation contemplates mutuality and attitude of living together. This is the first and the foremost necessity of Swaraj. In all developed societies a form of Government is chosen which believes in Rule of Law rather than the rule of man. In a democratic society, existence of rule of Law or obedience to it depends upon the respect for the law rather the fear of punishment. No legislation can stand on its own legs unless it receives sanction of public opinion. The protection of an individual against every power has now a days the most urgent problem in the general context of Swaraj. After independence, we have adopted a national flag and a national anthem but, we have no Swadesi education system or judiciary. We have borrowed the present judicial system from Britishers. Therefore, there is nothing Swadesi in it. Neither the language nor the dress nor the thinking is Swadesi. We

forget that it is through court the Government establishes its authority and it is through educational institutions, it manufactures clerks and Government employees. The educational system is normally used by the Government in power for brainwashing and regimentation. Therefore, the courts and educational institutions are healthy institutions when the Government in charge of them is on the whole just, otherwise they can become death traps. This was the view expressed by Gandhi. Initially, to gather overall control Britishers destroyed all the pre-existing institutions in India right from the grass root level and then established the present centralized judicial system to gain the complete control. It is through this judicial institution, it declared all patriots as Deshadrohi (traitor) and hanged them. Gandhi, Tilak and Savarkar were jailed for their patriotic deeds and actions and unfortunately even after independence the same attitude continues and we had very sad experience of it in emergency. Those were the days of Judicial impotency. In substance, every Government or a political party wants an independent judiciary, which will have complete independence only to decide a case in their favor. Further, as Mahatma Gandhi had said that the economic drain that the present judicial system causes is not trifle. Every institution founded by Britishers was run on a most extravagant scale because they could collect tax from poor Indians at the point of bayonet. The present judicial system is perhaps a most expensive luxury and it is the largest purse which wins in it. Basically, there is something sinful in the system itself, in which it is possible for a professional to earn lakhs of rupees per month or per day. The result is that the profession has remained noble but the professionals are not necessarily noble. Of course, there are certain dignified exceptions. Generally, the legal talents are being bought. The lawyer’s profession has become a speculative business and the best talent is not available to the poor at a reasonable rate or fee. The present British adversary judicial system is mainly based on oral and documentary evidence. The experience of all these years clearly show that there is hardly a witness in this religious and spiritual country, who tells the whole truth. The documents produced are not genuine. Still we claim that on the basis of such oral and documentary evidence, justice is being done. It is truly a tall claim. This system was never established by Britishers to give justice to native Indian or to a common man. It was rather used as a weapon of governance and oppression. Even today, the laws are being enacted in the language which is foreign and unknown to majority of Indians. There is no machinery available in the system to impart legal awareness. The common man

is not aware of the laws which are enacted for his benefit. He has no means to know it. As a result his ignorance of law is exploited. He is punished for breach of laws which he never knew. Therefore, legal literacy and awareness is necessary. We cannot forget that there cannot be a law and order, when there exists a social disorder. Removal and eradication of social disorder was the object of Swaraj. Therefore, unless we have a participatory, de-centralized, speedy and affordable judicial system, right from the grass root level, a poor common man can never get justice in the true sense of the term. We wanted a Swadesi judicial system and not decision delivery system. Today, the cases are being decided because ultimately every case must end in a decision. This does not mean that justice is being done. Only the adversary parties know where the justice lies. Rather, the whole town knows it, but the effort of everybody, including the police, is that the law courts should not know it. Therefore, an expression is being used in normal life, that I will drag you to the court. Thus, the Courts are being used by wealthy and influential people as a weapon of exploitation. It is four Ms: Money power, Muscle power, Mafia power and Media power, which are more powerful and not the rule of Law. To achieve the real Swaraj the fabric of the Judicial system will have to be Indian or Swadesi in every respect. Now a days nobody is interested in justice. When a decision is in favor, the justice is done, when it is against, it is described as injustice. This is the definition of Justice. The travel of the system is from Ramshashtri to Ramaswami. In a welfare State or a Swaraj every offence or every breach of law does not cause damage to an individual only but it adversely affects the peace and tranquility of the whole society. In effect, crimes affect social order and not only law and order. In the present system there is equality before Law but with unequal opportunities. Equality without equal opportunity in the true sense is inequality. Here, everybody wants to be more equal than others on the basis of caste, creed, religion, money power or mafia power. Therefore, it is more than obvious that the judicial system should be such where a common man and society can participate. It should be a participatory judicial system. In the present system, society as a whole suffers without having any opportunity to participate. It is my experience that it is very difficult to tell lies in the presence of the whole village or people. A system based on conciliation, negotiation and arbitration, even at the grass root level will have to be evolved, so that the approach to the, courts of law becomes an exception. Having accepted the principle of Panchayatiraj in which the Gramsabha is supreme, it will have to be

seen whether the dispute could be resolved in the, Gramsabha itself in the presence of the whole community. Because the community knows as to where the truth lies and who is right or wrong. To say the least, the aim of the Swadesi Judicial system should be freedom from court and litigation. For this the volunteers working in the Legal Aid Scheme, should see that Gramsabhas are regularly held and all disputes are settled in the Gramsabha, itself, in the presence of whole village community. In the present judicial system, if the two neighbours fight, the police arrest one, the court will punish him but no law or court can issue a writ, order or direction that the neighbours should live peacefully in a mutual cooperation as good neighbours with good neighborly relationship. Unless this is achieved, establishment of a society based on peace and tranquility is an impossible; at times, your neighbor is your enemy. Therefore, Gandhiji wanted to improvise Arbitration Board in order to settle disputes. Unfortunately today’s Arbitration Tribunals are becoming “Five Star Courts”; they are beyond the means of common men. Therefore, so far as the judicial system is concerned, the present system is not Swadesi judicial system. Therefore, in the present system Legal Aid Scheme in true sense of the term is the only alternative, resolution system at grass root level. If all organs of the state act impartially and judiciously, it will not be necessary to approach the court of Law every now and then. Because, people are not getting justice anywhere else, they have to go to the court which has become a last resort for a common man. A Sharanthirtha'. Therefore, establishment of society based on equality and justice is a part and parcel of Swaraj. A judicial social order is sine—quo non for Swaraj. Swaraj needs a philosophy based on duties and not on rights. There cannot be a right which is not pregnant with the corresponding duty and responsibility. In Swaraj, there are fundamental rights but there are also fundamental duties of a citizen. Swaraj is a positive concept which has self control as its foundation. Self control begets freedom. Hence, Swaraj is duty-oriented. Swaraj is a system in which the principles of force increasingly gets reduced and that a goodwill and mutual consent are developed. There is less of administration and more of self control, less of external control and more of freedom. Thus, by getting only political independence we have not gained Swaraj in the true sense, for which we will Lok-Adalat. Legal Aid Clinic and other organs of this scheme, but we should take dispute

have to struggle hard in coming years. Then alone our dream of Swaraj can become a reality.

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Part V
Gandhian Thoughts

Gandhian Thought
Based Dharmadhikari on the speeches delivered by Justice Chandrashekhar

Gandhian Talisman
“I will give you a talisman. Whenever you are in doubt or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man whom you may have seen and ask yourself gain anything by it ? Will it restore him to control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions? Then you will find your doubts and yourself melting away.” if the step you contemplate is going to be of any use to him. Will he

Seven Social Sins
Wealth without work Pleasure without conscience Knowledge without character Commerce (business) without morality (ethics) Science without humanity Religion without sacrifice Politics without principles

Gandhi and His Non-Violence
The 20th century was the most violent period in human history. More people have suffered and have been killed by organized violence than any other time before. The wars, the genocides, the weapons of mass destruction have created such an enormous mass misery and agony that it is difficult to find any trace of hope. Therefore, Gandhi’s teachings of non-violence are most relevant today. Now, though late, there is a realization that there is no other alternative. This is the reason why amidst report of increasing teenage violence across the United States, a Bill has been introduced in New Jersey Assembly seeking to include Mahatma Gandhi’s teachings of non-violence in the school curriculum. On 12 May 2000, on Mother’s Day in New York, several thousand mothers resolved and demanded a ban on the manufacture of arms, and its use. Therefore, in my view the teachings of Gandhi are not only relevant but also the only alternative. In this context, it is worthwhile to note that in December 1975, Rev. Fujii Guruji requested United Nation’s Secretary General to strive for complete prohibition and abolition of nuclear weapons. In October 1976, Peace March Groups were organized to urge White House to adopt world peace measures and so to strive for abolition of nuclear weapons. It is my belief that the said movement is now bearing the fruits. Recently Wolfowitiz, U.S. Defence Secretary has suggested and advised that Palestinians should adopt Gandhian Principles. He further said: “if they adopt ways of Gandhi, they could in fact, make an enormous change very quickly. I believe the power of individuals demonstrating peacefully is enormous. Similarly, after demolition of world trade center, youth of America have formed an organization, named as ‘we want peace, not war’ and want to start a new dialogue, to replace hatred by propagating friendship among the nations and different communities. Gandhi said: “There is no half-way between truth and non-violence on the one hand and untruth and violence on the other. We may never be strong enough to be entirely non-violent in thought, word and deed. But we must keep non-violence as our goal and make steady progress towards it. The attainment of freedom, whether for a man, a nation or the world, must be in exact proportion to the attainment of non-violence by each.” Elsewhere he stated: “Non-violence is not a garment to be put on and off at will, its seat is in the heart and it must be an inseparable part of our very being.”

At one level, non-violence is a transcendental ideal, that is, a higher order or goal that we may approach but never completely attain. At another level, nonviolence is a process, a way of life, an alternative to dealing with conflict. Gandhi called it a pursuit of truth. It reaches towards what is most sublime. It is not merely a ‘live and let live’ formula, but it involves a principle of live and help others to live and these others should include nature and animals also. According to Gandhi’s concept, non-violence was not a negative concept, but it was a positive approach to ‘life’. Gandhi did not resort to non-violent resistance because he was unarmed. He resorted to non-violent resistance, or call it assistance, because he had shed all fear of arms. Gandhi had also realized the futility of arms. He knew that the best cannot be achieved by fear, because ‘fear is a dark room, where only negatives are developed’. He realized that all arms become powerless once the man has shed the fear of arms. This was nonviolence of Gandhi, which was positive, and dynamic. It provided metaphysical foundation to the concept of morality. Arms races are in fact just expensive ways of spreading and heightening fear and danger. The balance of power theorists argue that by spreading fear, equalizing it, so to speak, danger is reduced. But if we look at history as a whole it does not appear that this method of reducing danger has been effective. Just as we have little reason to expect less violence in a country if all of its citizens are armed with guns, even if they all have the same kind of guns and the same number of bullets, so we have little reason to expect less violence in the world if all of its nations are armed with weapons of mass destruction, not even if there is some ‘balance’ or even equality among these weapons. In short, to adopt nonviolence is to adopt a new way of coming to terms with our vulnerability, a new way of dealing with the fear to which we are subject and the fear which we can inspire in others. When non-violence becomes a primary value, we are compelled to see new ways to carry on and to solve conflicts, new ways to protect what is most important, and new ways to struggle for the recognition of our fundamental rights. Gandhi called these attempts to find new ways ‘experiments’. Contrary to a misconception held by some people, however, non-violence is not just a matter of substituting non-violent means of defence, what is sometimes called civilian defence for violent means of defence or non-violent means of struggle to secure basic rights. Probably even more basic is what Gandhi called constructive programme, that is, the transformation of our social

and economic institutions so that they are not a source of violence to certain segments of society and so they do not create conditions to which violence is the expectable response. The strength of a non-violent society does not lie in weapons of destruction, it lies in the degree to which humane values are embodied in its social institutions. These social institutions involve not only the relations of human beings to our natural environment and to other forms of life. If our goal is non-violence, we cannot consume and destroy, destroy and consume, as if it made no difference. Therefore, the moot question is: what makes life rich? Whether it is the standard of spending or the standard of living? It is again worth noting that the root of man’s happiness lies in the warmth of human relationship, relationship between man and man, which is based on the basic concept of non-violence, peace, friendship and compassion. ‘Long back, Japan Brain Trust report had said, “We are manufacturing artificial intelligence, like computers, etc., which is taken to be the basis of progress.” In this context it is worthwhile to note the observations of the great philosopher, Krishnamurthy: “People do not see the great challenge to the human consciousness of the computer and genetic engineering and new technologies. The threat is that human brain could deteriorate, perhaps even atrophy, if the muscles of the mind were not exercised.” People must change their life in a fundamental way, they must be taught to accept the value of “being” rather than “having”. Unless the Western model of development is countered through the constructive work and peaceful, nonviolent means, I am afraid the next century and millennium will witness unprecedented proliferation of violence, because the history of Hiroshima, Nagasaki clearly tells us that the people have not learnt anything from the destruction. It should be specifically emphasized that non-violence is to be accepted as the basis of personal life and social life and also as the only feasible and desirable technique of resolving conflicts, and those who advocate peace should practice what they preach. Today, unfortunately, the common man is fast losing his function and role. He is reduced to the position of an object and an instrument, when as a matter of fact he should be the central figure. As W.B. Yeats has said in his poem: “Then things fall apart, when the centre cannot hold; Mere anarchy is loosen upon the world,

The everywhere

blood-dimmed

tide

is

loosed,

and

The ceremony of innocence is drowned; The best lack all conviction, while the worst Are full of passionate intensity.” In the words of Dr. Martin Luther King, “History will have to record that the greatest tragedy of this period was not strident clamor of the bad people, but the appalling silence of the good people. We will have to repent in this generation not only for the vitriolic words and the actions of the children of darkness but also for the apathy of children of light.” We must have a movement of people willing to experiment in an imaginative way with social, economic and technological alternative at all levels from the local to the global. In 1954, Jawaharlal Nehru had said: “Human mind all over the world was searching for a way out, an escape from terrible fear, of total destruction with atomic power constantly held up before them. Although the Western people had received all the blessings of common worship, they were not mentally happy. Materially they had progressed but had lost all the happiness of a fearless soul. Material progress seemed to have killed the essence of their soul.” In 1984, in his address to the United Assembly, Ronald Reagan had to admit, “All problems could be peacefully resolved if adversaries talked to each other on the basis of love and truth. All through history, the way of truth and love has always won. This was the belief and vision of Mahatma Gandhi and this vision remains good and true even today.” As rightly observed by Martin Luther King: “Nothing in our glittering technology can raise a man to new heights, because material growth has been made an end in itself, and in the absence of moral purpose, man himself becomes smaller as the works of man becomes bigger.” When an individual is no longer a true participant, when he no longer feels a sense of responsibility to his society, the content of democracy is emptied, when the social system does not build security, but induces peril, inexorably the individual is impelled to pull away from soulless society. This process produces alienation, perhaps from the pervasive and insidious development in contemporary society. Therefore, in the words of Sister Nivedita, synthesis, harmony and coordination, in every field of life is necessary. Is this possible? Gandhi told us that a revolution or change is the art of making the impossible possible. For this we will have to translate human values into our life. It is said that there is no end to history. The last chapter is never written in

history. Those who make history have no time to write it. Therefore, the next chapter has to be written by us, of course by our action. Otherwise, it will amount to giving lip homage to Gandhi. Gandhi was a seeker of truth. Such a man is bound to be humble. Truth is not denominational. It is neither your nor mine. It knows no frontiers. Therefore Gandhi’s deeds were noble than his precepts, and this is the reason why he could say, “My Life is my Message”. However, those who have studied Gandhi’s life often imitate it, but forget his thought. They forget that there cannot be a divorce between an actor and his settings. Therefore, it is difficult to separate Gandhi’s non-violent struggle from his message and ‘Life’. Gandhi’s non-violent struggle is known as “Satyagraha’. It was perhaps the most courageous and “Satyagraha’. glorious experiment ever made by a man in human history. Gandhi has blazed a trail and it is for others to follow it. For this you must study the genesis and background of this struggle. As has been well said, ‘history by and large is a biography of great men.’ What was initially thought impossible, became possible by Gandhi’s nonviolent struggle. Gandhi’s non-violent Satyagraha struggle, right from Champaran to Quit India Movement, in a sense, is a chain of passive resistance. Passive resistance is breaking laws for certain principles. This can be legitimately offered by person who respects rule of law and otherwise obeys laws. In fact, a Satyagrahi refuses to obey the law that he feels is wrong and immoral. After breaking such a law by accepting the extreme penalty prescribed for the socalled offence, he respects the rule of Law. He respects the law but offers noncooperation with regard to its evil elements only. Gandhi introduced an entirely new dimension in the technique of revolution. It was not only non-violent resistance to the evil, but it was also assistance in the right direction. Two words should be properly understood, one Satyagrahi lR;kxzgh and another Satya-grahi lR;- xzgh Satyagrahi lR;kxgh means one who accepts and lR;adopts truth as a principle as well as a way of life. Therefore, Gandhi’s nonviolence was not a negative concept, but it was a positive approach to life. This was Gandhi’s non-violent movement which was positive and dynamic, provided metaphysical foundation to the concept of morality. In this context, therefore, non-violence becomes a primary value in itself which is positive in nature and for this we must have a broad-based grassroot movement, in which common people

can participate. This is the foundation of his movements; from Champaran to Quit India Movement. Now, though late, there is a realization that there is no other alternative. I am afraid that next Century and Millennium might witness unprecedented proliferation of violence because history tells us that people have not learnt anything from destruction brought upon by wars. Therefore, it should be specifically emphasized that non-violence is to be accepted as the basis of personal life and social life and also as the only feasible and desirable technique of resolving conflicts and those who advocate peace should practice what they preach. Future of mankind depends upon its adopting non-violence as the principle of life on which depends a happy union of science and spirituality. If we follow the teachings of Gandhi which implies a sense of belonging and sharing, then alone we can achieve the goal of peace and non-violence. After all, progress means advance and advance means approach—approaching one another or coming nearer to one another. In the global context, our neighborhood is not restricted to the next door. Therefore, our enquiry and thinking will have to be based on universalization, viz., the concept of “think globally, act locally.” In this march, the real question is what human values we seek to preserve in our progress towards globalization or universalization. Shall we worship largeness and speed as our new Gods? The production will only be mass production or will it be production by masses also? We must understand that the present technique cannot hold persons together. We cannot forget that love is the best solvent for isolationist tendencies, as well as egoistic intentions. Therefore, we will have to seek the principle of non-violence in people’s hearts; which alone can save the planet earth from disaster. Gandhi lifted the notion of nationalism from its regional littleness to worldwide dimension. It was not exclusive, but it was inclusive and comprehensive. Gandhi’s religion knew no geographical limitations. Today, we are placed in a vicious circle of threat and counter-threat. We have forgotten that the ultimate sufferers of violence and wars are innocent civilians. Non-violence is a primary value in itself, which is positive in its nature. In this, we must have broad-based grassroots movements, which could cross the boundaries of the nations and are global in its nature. The principle of non-violence is not only an experience but it is the heart and soul of man’s behavior, and for propagating

this principle, Gandhi did not look back to his followers but rather walked alone. He walked alone throughout the world, he struggled all alone for achieving this goal and today we find that the number of persons who believe in his ideology is ever-increasing.

Issues in Culture of Peace and Non-Violence
In my own way, I have classified the various problems, which the world is facing in terms of four Ps - population, poverty, pollution and power politics or power game. I also classify the remedies for these in terms of four Ms viz. money power, muscle power, mafia power; and media power, the way people in general tend to see them. As has been rightly said by the Director of UNICEF. “The gulf between the young and adults seems to be growing every day not only in the universities, but in the society as a whole. With their needs for absolutes, the young are less than ever able to tolerate injustice and disorders of the world.” Thus the difference between the capacity of younger and older generations to tolerate injustice, and corruption is a real generation gap. There is no use in condemning and criticizing the younger generation, when my generation has failed to reach the values of life as propagated by Gandhi. It is true that on 15th August, 1947, we achieved political independence; but Gandhi always used the word ‘swaraj’ and not ‘swaraj’ ‘independence’. There is a vast difference between independence and freedom. Political independence we did get, but can it be said that we got freedom from inequality or freedom from exploitation of all kinds, that is, economic, religious, social and political? Unless this is achieved, there cannot be peace in the world. When, therefore, the youth or students revolt, though many times wrongly, we have no right to condemn them. As rightly said by Oscar Wilde, “Disobedience in the eyes of any one who has read history, is man’s original virtue, it is through disobedience that progress has been made, through disobedience and rebellion.” The well-known report of the United Nations on human environment tells us that, “The emotional attachment to our prized diversity need not interfere with out attempts to develop the global state of mind which will generate the rational loyalty to the planet as a whole. As we enter the global phase of human evolution, it becomes obvious, that each man has two countries, his own, and the planet earth. Now that all habitable parts of the globe are occupied, the careful husbandry of the earth is sine qua non for the survival of the human

species and for creation of decent way of life for all the people of the world”. Unfortunately even today, people are exploiting nature. The moot question is whether nature is our ally or enemy. The very word ‘exploit’ is explosive. If we treat nature as our enemy, then man cannot survive on this planet. The last century was a century of conquering nature. I am told, though I am not an expert in the field, that small birds, like sparrows are vanishing because of widespread use of mobile phones. Modernization has become the latest orthodoxy. We are forgetting that modernization is not necessarily modernity. In this process of modernization, ‘horse power’ is valued more than ‘man power’. The standard of spending is equated with the ‘standard of living’. Gresham’s law that ‘bad money drives good money out of the market’ is not only prevalent in the market but is also in vogue in social and political circles. I am not dealing with Globalization or arm twisting market economy, but I must draw your attention to the conclusion drawn by the ‘Wisdom Bank’ of Japan - Japan is manufacturing artificial wisdom so that men need not use their brains. It is also manufacturing artificial needs so that greed should become a need. It was on 11th September, 1906, that a Movement was started in South Africa, by Gandhi, which ultimately came to be known as “Satyagraha”. Initially “Satyagraha”. the name given to this movement was “Passive resistance”. This was resorted by the people, who had either no right to vote or were otherwise weak. They were not averse to use of arms, if possible, for the attainment of their rights. On the other hand, Satyagraha is the force of soul; pure and simple. Satyagrahis never used physical force that too effectively; though there were occasions, when they were in a position to use it. In a sense, this was non-violent assistance in the right direction. Call it coincidence or destiny, but it was on 11th September that the World Trade Center was demolished. After this demolition US President, George Bush, remembered Gandhi. After the said tragedy a new youth organization has been founded in the United States, named as “We want Peace, not War’. There is War’. another organization known as “Seeds of Peace”. There is also one more organization of Muslim Youth, who wonder as to whether it is just and fair to call every Muslim a friend of Osama Bin Laden. They also observed that it is very easy to live as a Hindu, as a Muslim, as a Buddhist, as a Christian, but it has become very difficult to live as a pure and simple human being. A point is also raised by these organizations that after 9/11, though it is difficult to forget the destruction and demolition of the World Trade Center in New York, the backlash

of hatred cannot end terrorism. It is not possible to forget this atrocity but will it be correct to hate a person whom we do not know, whom we have never seen, about whom we have never heard? If in spite of this hatred is possible, why it is not possible to love an unseen, unknown and unheard person? This is a moot question, which is relevant even today. In the present day economy animals have no place; it is our desire to include animals as members of our family and society. In the Indian Constitution, we have made a solemn declaration that at least one animal, that is, cow shall not be killed for any purpose whatsoever. But it must be understood that animals should not be man’s toy or mere pets, because pets and toys are kept as long as they amuse us. The day we chose to regard one animal as sacred and not a mere pet, we took a great stride forward in the direction of cultural progress. Ultimately, what is culture? Culture is the art of living with others, living with nature, with the animal world, and with fellow human beings. The word culture is most important. We want culture of peace or non-violence to be established. Can there be a culture of peace and non-violence, is again a moot question; and what do we mean by culture; such a culture will not be Western or Eastern, but can only be global. The Earth is called ‘Vasundhara’ or ‘Vasumati’. Vasu means wealth. We ‘Vasundhara’ ‘Vasumati’. intend to search the wealth, not to exploit it, but to make our lives gratifying and blessed. Therefore, the first article of this revolutionary creed should be that ‘man is the measure of all things’, and that you cannot preserve the dignity of man on charity. The underlying principle is reverence for life. This is true for all lives and that should be our watchword. The reverence for human life first, then for animals, and then for nature. This is known in our ancient lores and ‘Vibhuti ‘Vibhuti Yoga’ – the worship of all, and relationship with everybody that makes life rich. Yoga’ We believe in ‘Advaita’, that is, oneness, harmony, co-ordination and mutual co‘Advaita’, operation. I want to ask myself whether Gandhi has become out of date? There is a misunderstanding about the very concept of Gandhi’s non-violence. One armed man can be conquered by 10, 10 x 20, and so on but not all the armies of the world can conquer the spirit of one true man. This was Gandhi’s dynamic nonviolence. Whether we want ‘Yuddha or Buddha,’ War or Peace? Or peace through ‘Yuddha Buddha,’ war? I do not propose to deal with these questions.

The United Nations has declared 2001 to 2010 as the decade of Culture of Peace and Non-violence for the children of the world. Unfortunately we treat our children as our property. We want them to be our carbon copies or pocket edition. This is nothing but cruelty. It is a moot question as to whether we are living for the children; are we planning for the next generation, or do we want to grab everything for ourselves, ignoring future generation and their destiny. Therefore, it appears that United Nations feel that the culture of non-violence and peace should be for the children of the world, who represent future of the mankind. Fact is that they are abused and exploited in every possible sense and way. Future of mankind depends upon its adopting non-violence as the principle of life on which depends a happy union of science and spirituality. I call it S+G that is Science plus Gandhi, which alone can Save Planet Earth. Gandhi was an apostle of peace and brotherhood. The modern nuclear weapons not only pose a grave threat to world peace but will destroy mother earth. So far as India is concerned, the main problems are population, poverty and pollution. It appears that the people have started in believing that all these problems could be solved by money power, muscle power, media power and mafia power. Therefore, in the present National and International context, as laws cannot solve these problems, at least within reasonable period, Gandhian Philosophy is the only alternative. Apart from the ecological sustainable mode of development preached by Gandhi, decentralization of socio-economic power based on non-violence, and building up of people’s power, communal harmony based on people’s initiative, rather than the State power is the only alternative. Nathuram Godse killed Gandhi bodily, but his soul and thought must live for ever. Let us at least see that he lives, if not in flesh and body, but in spirit and thought. Otherwise future generation will never forgive us.

Trusteeship – A Technique of Social Change

Capitalism means an order of things in which basis of distribution is purchase or barter. Unless you have purchasing power, you are unable to get anything that you need even food for hungry. It is an irony of fate that things can only be bought, forcibly snatched or acquired, but nobody can get it because they are needed. This is why, in the present day social order, needy persons are deprived of the primary amenities of life. Therefore, everything has got

exchange value, that is price. It is price based economy and not need based or value based. It is a diabolical social order. There is of, course, scope for charity. Human dignity cannot be preserved on charity if those who live in perpetual misery are condemned to live on the sufferance of those who are well to do, then it is difficult to preserve human dignity and the whole civilization will come to an end sooner or later. Charity is a weapon invented by capitalists to preserve capitalism and protect their property by gaining sympathy of poor class. Therefore, Gandhiji invented and preached trusteeship as technique of social change. He called it, the technique of change of heart. Gandhi said that capitalist is a trustee of his wealth, labourer is a trustee of his labour for the benefit of society, and government is trustee of the people and cannot act as a despot or a king. The Government is vested with the power over land and property of people to manage or use it for the welfare of people in general. The concept of trusteeship will apply to everybody in all the spheres of life. Gandhi who was a revolutionary adopted the broom with Charkha as symbols of revolution. He gave recognition to the dignity of labour and the Charkha was meant to bring economic equality and dignity of labour. In the Charkha same way, he introduced broom and collective cleanliness to abolish social injustice. He himself used to clean his latrine and made the residents of the Ashram clean the latrines. He thought that the status of a man could not be measured from the work he did. He felt that the high and lowness of the caste would find no place in the country when the Bhagavad - Gita would be in the hands of Sweepers and the broom in the hands of the upper classes. He believed that the Sarvoday is possible only through Antodaya. Gandhi derived new definition of Swadesi. He said: “Swadesi means neighborliness.” You produce for your neighbor. Production for sale is capitalism. Hence, Gandhi advocated production for home consumption and not for sale or export only. He laid emphasis on need- based life and not on greed-based life. Ultimately there is an end to needs but greed is never ending, rather ever increasing endless. For Gandhi, Khadi and Village Industries meant decentralization of production and distribution of the necessaries of life. Khadi, to him, was the Khadi, symbol of unity of Indian humanity, of its freedom and equality and therefore,

ultimately in the poetic expression of Pandit Jawaharlal Nehru, “the livery of India’s freedom.” For him, Khadi is the central sun around which the other village industries revolve like so many planets. Even today, as the statistics go, about sixty lakhs of people are employed in the production of Khadi and village industries i.e. Gramodyog. If each and every citizen of India uses one khadi dress in a year, about one crore people will get employment. I do not think any industry, howsoever big it may be, or even multinational, can provide such an employment. Unemployment is bound to cause destruction and violence. It will destroy the very fabric of our nation. It is a misunderstanding that using Khadi is very costly. Today it is noticed that a large number of divorcee Muslim women are employed in the production of Khadi. Cottage industries provide employment to lakhs of women. While Khadi. calculating the price, the cost of cotton produce, and the living wages for the labouring class are taken into consideration. It is a social cost which is most reflected in the price of Khadi; it is value-based rather than price-based. A product that is based on exploitation would always be cheaply priced. The moot question is whether exploitation should be tolerated and encouraged. The centre of Gandhi’s economics was man. For him man was the measure of everything. He wanted production by masses and not only mass production. He wanted production by men and not at the cost of men. He was interested in ‘Man Power’ and not ‘Horse Power’. For him foundation of economy should be man. Gandhi believed in humanism even in the economic field. System of production and the system of distribution should be coupled with the cultural development of human being. The Human personality should be capable of being developed through this process, which means that the System of production and distribution should be conducive to the growth of all human faculties. He was not against machines. In a sense, spinning wheel is also a machine. Use of tools should be as an extension of our limbs. The hammer is the extension of man’s fist. It is an Upakaran;’ ‘upa’ in Sanskrit means sameep that is ‘next’ Upakaran;’ therefore, upakaran is one which is next to sense. Hence, tools or machines should not be as substitute for human power, but to augment it, to extend it. We should not allow tool or machine to replace human power. If glasses replace eyes, the very eyesight is lost. The man-machine relationship should not

mismatch. For Gandhi, man, being the measure of all things, he is above technology or science. Man is greater than technology. In his economy nature and animal had honorable place. For him culture is the art of living with others. This means our planning should be such which will give ample scope for the development of faculties of the animal. For him nature is our ally. Natural resources are not meant for exploitation. Nature is not an enemy that we must conquer or exploit. We want to co-operate with nature and animals to enrich our life, to make life richer, greater and more beautiful. Gandhi’s principle of non-violence was basically based on non-exploitation of man by man, or of nature. It is not a negative concept but a dynamic positive principle of life. For Gandhi live and let live was not enough, he wanted that people should also help others to live. It was a positive, living, dynamic nonviolence. For him exploiting villages and villagers is in itself organized violence. As rightly said by Martin Luther King, “Nothing in our glittering technology can raise a man to new heights, because material growth has been made an end in itself, and in the absence of moral purpose, man himself becomes smaller as the works of man become bigger”. Gandhi wanted a change in basic mechanism of ownership, production and distribution. He wanted freedom from the rule of merchandise and rationality in productive and distributive system based on human relationship. Thus, fundamental principles of his economics were simplicity, nonviolence and sanctity of human labor. He was against craze for machines and its indiscriminate multiplication to replace men. He was against inventing labor saving devices but wanted to provide employment to forced idleness. His plan was for peace, security and progress rather than war and exploitation. He wanted growth in national wealth for men and not at the cost of men. If you want a humanistic society based on human values, the principle of Trusteeship is the only alternative.

******

Annexure: A Life sketch

Name
Dharmadhikari

: : : : : :

Chandrashekhar 20 November 1927

Shankar

Birth Date Birth Place Education Profession Appointment

Raipur (Madhya Pradesh), India M.A., L.L.B. from Nagpur University. Lawyer since 1954 to 1972.

• Government Pleader, High Court Bombay, Nagupur Bench From 1965 to 1972 • Judge of the High Court of Judicature at Bombay w.e.f. 13 July, 1972.

Acting Chief Justice of the Bombay High Court. Retired on 20th November, 1989 • Chairman of Maharashtra Administrative Tribunal from 7 July, 1991 to 20 November, 1992 • Presently: . Chairman, Dahanu Taluka Environment Protection Authority

. Chairman, Vidhi Anuvad va Paribhasha Sallagar Samiti, Government of Maharashtra Chairman, Committee To Monitor Animal Welfare Laws in Maharashtra. .

Family Information

: •
Belongs to the family of lawyers. His Grandfather Shri T.D. Dharmadhikari was in Judicial Service and was A.D.J, was known for his integrity and uprightness. • Son of Acharya Dada Dharmadhikari, well-known Gandhian Thinker and Freedom Figher; took part in all movements launched by Gandhiji and was imprisoned several times.

• •

Brother, Late Y.S. Dharmadhikari, was Advocate General of Madhya Pradesh. Mother, Late Smt. Damayanti Dharmadhikari, took part in individual Satyagraha in 1941 and Quit India Movement of 1942 and was imprisoned for about Three years. • Wife, Mrs. Tara Dharmadhikari, was M.A. (Economics) and held Diploma in Journalism and was Deputy Director, Information and Publicity, Government of Maharashtra and Editor, Lokrajya.

Daughter, Aruna Patil is a Doctor.

Sons, Satyaranjan is Judge of High Court of Bombay and Ashutosh is an Advocate.

Special Activities: •

Took part in Quit India Movement of 1942. Government of Maharashtra in recognition of his Services as Freedom Fighter, sue motto, included his Name in Prestigious List of Freedom Fighters.

• Was associated with Student’s Movement and was Secretary of National Union of Students, • Actively associated with Educational, Social and Cultural Organisations. • Chairman of Educational Regulatory Authority

 Was President of : .

Rashtriya Mill Mazdoor Sangh. Union of the Employees of Textile Mills at Nagpur Kusumagraj Pratisthan and Yusuf Meherally Centre. Was Vice President of : . Vidarbha Rashtra Bhasha Prachar Samiti. Gandhi Memorial

. Leprosy Foundation, Wardha and

. Maharashtra State Free Legal Aid and Advice Board. Now President of : . . . . . Now, Vice-President of : . Global Indian Trust and Global Indian International Schools, Singapore, Malaysia, New Zealand, India and Viernam . Shiksha Mandal Wardha and Jabalpur. Japan, Abhyankar Smarak Trust, Nagpur. Maharashtra State Federation of Goshalas and Panjarpol. Kushta Rog Niwaran Samiti, Shantivan. Trusteeship Foundation. Nasha Bandi Mandal.

Chairman : . . . Institute of Gandhian Studies, Wardha. Vidhi Anuvad va Paribhasha Sallagar Samiti Government of Maharashtra. Bombay Reforms Association.

. Maharashtra Gramdan Board. . Sarvodaya Ashram, Nagpur.

. Managing Council G.S. college of Commerce and Economics, Jabalpur. Now, Member of : . . Board of Advisors, Mani Bhavan Gandhi Sangrahalaya. Advisory Board, Sane Guruji Kathamala, and Rashtriya Smarak.

. Advisory Committee, Campaign Against Child Labor (CACL) . Community Aid and Sponsorship Programme (CASP) . Trustee . Kushta Rog Niwaran Samiti, Shantiwan. Kendriya Hindi Samiti, Bharat Sarkar.

. Society for Educational, Action and Research in Community Health (SEARCH) Gadchiroli. . . . Jamnalal Bajaj Foundation. Geeta Pratisthan. Fuiji Guruji Memorial Trust.

. Gandhi National Memorial Society, Agakhan Palace, Pune. . Seva Mandal Education Society, Mumbai

. . .

Vishwa Vatsalya Prayogic Sangh. Gandhi Smarak Nidhi, Delhi and Mumbai. Gandhi Labor Foundation, Puri.

Connected with Award Committees of : . . . Indian Chamber of Commerce. Jamanalal Bajaj Award. Sane Guruji Memorial Award.

. Ladies Wing of Indian Merchants ChambersJankidevi Bajaj Award. . . Padmaraja Rani Bang Memorial Award (Chetna Akbarally’s Sadbhavana Puraskar etc. Vikas).

Also Actively connected With: . . Maharashtra Vyassan Mukti Movement. Prayas/Mahila Shantisena.

Authorship: •
A book on Constitution of India titled as“Bharatiya Sanvidhanache Adhisthan” (Marathi) which received Government of Maharashtra Literary Award for the year 1976-77. Reflections on Indian Constitution, Religion & Rule of Law (English) Shodha – Gandhicha Loktantra Parhej Aur Pabandiya (Hindi) Manjil Durach Rahali- (Marathi) RahaliGandhi Prachar aur Prabhav (Hindi) Samajman (Marathi) Kalachi Paule- (Biography in Marathi) Paule-


• •
• •

Antaryatra (Marathi) Received Government of Maharashtra Literary Award for the year 2002-2003

• • • • • •

Surodayachi Wat Oahuya (Marathi) Sahapravas (Marathi) 1857 Cha Swatantra Sangram Gandhi Ajchya Sandarbhat Bharatiya Sanvidhan Aantrang (Hindi) Bhartiya Bandharanu Adhisthan (Gujarati)

Contributed several articles in English, Hindi, and Marathi in various periodicals, magazines etc. Known as good orator. Delivered number of talks in Lecture Series, Organized by the Universities and other Social and Cultural Organizations. Delivered Convocation Addresses in Shivaji University and Konkan Agricultural University.


• • • • • • • • • • • •

Awards:
Government of Maharashtra Literary Award 1976-77 2002-03. Karandikar Trust Dharwad Literary Award Distiguished Citizen Award of Rotary Club of Bombay Gopal Krishna Gokhale Award Gandhi Jan Award Gosewa Ratna Puraskar Rashtra Gourav Puraskar (World Peace, Movement Trust) Padma-Bhushan Awrd by the President of India Bharati Gourav Puraskar Ashirwad Rajbhasha Gourav Puraskar Justice Rande Saman Seva Puraskar Durgadevi Saraf Samaj Seva Puraskar Justice Ramshastri Prabhune Samajik Nyaya Puraskar

• •

Bhausaheb Dhamankar Prerana Puraskar, for Samaj Seva and Kushta Seva and Social Awareness Michael John Gold Medal by TATA Worker’s Union, Jamshedpur (In recognition of his selfless services to humanity and Country and above his dedication to cause of justice, peace and progress.) National Gandhi Fellowship by Gandhi Smriti & Darshan Samiti, New Delhi Was Invited do deliver keynote address in BruhanMaharashtra Mandal 1999 Convention, San Jose, Silicone Valley, U.S.A. Visited Japan on the invitation of Japan-Bharatiya Maitri Sangh and Nipponan Myohoji Trust, Japan Visited Singapore in connection with India’s Independence Day celebration and unveiling of Statue of Mahatma Gandhi and Mahatma Gandhi Centre for Values Visited Malaysia and Japan in connection with opening of Global Indian International School and unveiling of the statue of Mahatma Gandhi

Visits:

• •

Bibilography

BOOKS

• • • • • • •

Chorghade, Wamanrao, Dharmakritan Heimendorf, Christoph Von Furrer, Tribes of India: The struggle for survival Mangalwedhekar, Raja, Shahir G.D. Madgulkar Shewalkar Ram, Shikshakacha Dharma Padgaonkar, Chandrakant, Mahatma Gandhi Pranit Akara Vrata Chandrakant, Justice Dhananjay Deshpande, Vishyanurup Dnyaneshwari M.K. Gandhi : Hind Swaraj or Indian Home Rule, My Experiments with Truth

• • • • • • • • • • • • • • • • • • •

Dr. L.M. Singhvi Democracy and Rule of Law, Freedom on Trial, Towards Global Togetherness Nani Palkhivala, We the Nation, We the People Palkhivala, Nation, Leila Seth, On Balance P.B. Gajendragadkar, To the Best of My Memory Gajendragadkar, M.C. Chagla, Roses in December Chagla, All the Prime Minister’s Men, Indira Gandhi and Her Power Men,

Janarddan Thakur, Thakur, games K.A.Abbas

Indira Gandhi – Return of the Red Rose

L.K. Advani, My Courntry My Life Advani, D.R. Mankekar, Decline and Fall of Indira Gandhi Majorie Sykes, Moved by Love Dada Dharmadhikari, Manishchi Sneh Gatha Nandini Mehta, Jako Rakhe Gomaiya Dr. Francies Neilson, The Tragedy of Europe Bertrand Russel, Authority and Individual Kagawa, On the Steps Fukuka, One Strew Revolution Thucydides, The Poloponnesion War Justice V.R. Krishna Iyer, Dynamic Lawyering Justice S.R. Khanna, Law, Men of Law and Education The Constitution of India ‘Words and Phrases Permanent Edu. 36, A.P. 461 Essay, Magzines, Periodicals Etc. Mahatma Gandhi, Harijan, 1 August, 1936, Young India, 25 June, 1931 Vision and Values – Essay in Honour of Dr. D.S. Kothari on his Birth Centenary

• • •

• •

John Ruskin, ‘Ad Valerom’, Unto This Last Ruskin, ‘Ad Valerom’,

Extracts from Lectures, Letters, Speeches etc. • •
Emerson, Extract from the Commemorative lecture,

Justice Chandrashekhar Dharmadhikari, Ramanand Tirtha Lecture Series, delivered at Nanded • Post Centenary Silver Jubilee of Bombay High Court Justice Oliver Wendell Holms, Jr. Speeches (1913) Justice S.H. Kapadia, Fifth M.C. Setalvad Memorial Lecture, 16 April 2011 Delhi Post Centenary Silver Jubilee of Bombay High Court, pp. 2-6, 49,78,113-114,117. Extract from the Speech of Former Chief Justice of India, Justice Y. V. Chandrachud Extract from F.S. Nariman’s Speech

• •
• • •

• Extract from Justice Ranganath Mishra’s letter to the Chief Justices of High Courts, Dated 4, November 1990 • Extract from Justice K.G. Blakhrishan’s circular prescribing a 12-point model Code of Conduct for Judicial Officers (Judges of subordinate Courts)


• •

Justice R.C. Lahoti, first M.C. Setalvad Memorial Lecture, 22 February, 2005 Delhi Extract from Indira Gandhi’s broadcast to the Nation on the morning of 26 June, 1975 Extract from Bishan N. Tandon’s PMO Diary

• Extract from Dr. L.M. Singhvi first golden jubilee lecture, Supreme Court Bar Association at the Indian Law Institute, 1999 • Extract from Balasaheb Deoras Speech at a rally in Delhi on I December, 1974

• Extract from Acharya Dada Dharmadhikari’s letter to Vinoba Bhave dated 15 August, 1975 • Extract from Gandhi’s directive to Congress

• Extract from Congress party’s resolution commemorating the first anniversary of the Independence Pledge, 26 January, 1931 • Extract from Prof. Devdatta Dabholka’s speech

LEGAL CASES • Observations of the Supreme Court in Mohd. Giasuddin vs State of Andhra Pradesh (AIR 1977 Sc 1926) • • • • • • S.C. Mittal etc. vs Union of India & ors. (All India Reporter 1983 page 1) Saifuddin vs State of Bombay (AIR 1962 SC 853) Indira Gandhi vs Raj Narain, Allahabad High Court Makhan Singh vs Punjab, (AIR 1964 SC 381) Liversidge vs Anderson (1942 AC 206) Liversidge Pochanna Appedwar vs State of Maharashtra (AIR 1985 SC 389)

• Commissioner, Hindu Religious Endowment, Madras vs L.T. Swamiar (AIR 1954 SC 282) • K.S. Srinivasan (AIR 1958 SC 419 V 45 C 64, February 18, 1958) POEMS

• • • • •

Khalil Gibran, On Children G.K. Chesterton, The Secret People Lionel Johnson, A Friend John Masefield, On the Hill John Gilbert Holland, God, give us men!

About the Author
Sheshrao Chavan is Vice President (worldwide) of the Association of world Citizens, which has NGO Status with the United Nations and Consultative Status with United Nations Economic and Social Council and a World Citizen. Chavan is a prolific writer. He has to his credit over a dozen books, main among them are: India After Mahatma Gandhi; Mahatma GandhiMan of the Millennium; Mahatma Gandhi-Eternal Pilgrim of Peace and Love; Mahatma Gandhi-the Sole Hope and Alternative; Gandhi & Ambedkar-Saviours of Untouchables; The Makers of Indian ConstitutionMyth & Reality; The Constitution of India-Role of Dr. K.M.Munshi; Glimpses of the Great; Mohmmad Ali Jinnah-the Great Enigma; Whither India Today, This was a Man, Rule of the Heart – The Justice of Chandrashekhar Dharmadhikari (First Edition). Gandhi-Jinnah Talks and The Last Days of Mahatma Gandhi Chavan delivered keynote address at the International Conference on Reforms and Revitalization of the United Nations held at San Francisco in June 2004. The other keynote speaker was Dr. Robert Muller, Chancellor of the United Nations Peace University. Chavan also addressed a number of meetings and workshops at the United Nations’ Head Quarter in New York. He addressed a conference of Fellow of Reconciliation (FOR) at Seattle in Washington State. He also addressed the Chief Justices of the world at their 3rd International Conference held at Lucknow in 2002. Judges from 44 countries had attended the Conference.

Address: Gurudatta Nagar, Begumpura, Aurangabad, Maharashtra, India. Tel. cell: Email : 91-240-2400362. 09850011755 sheshrao_chavan@yahoo.co.in

Acknowledgments
The sole credit of bringing out the biography of Justice Chandrashekhar Dharmadhikari goes to Global Indian Foundation and its Directors Mr. Shailesh Temurnikar and Mr. Atul Temurnikar. I am only an instrument.

The autobiography of Smt. Leila Seth, former Chief Justice of Himachal Pradesh Published by Penguin Books under the title, “On Balance” has been very useful to me in the context of life and work of Justice Chandrashekhar Dharmadhikari. I have extensively made use of it for which I thank from the bottom of my heart Smt. Leila Seth and also Penguin Books. The first M.C. Setalvad Memorial Lecture delivered by Justice R.C. Lahoti, former Chief Justice of India on 22nd February 2005 at Delhi has provided me a lot of information about judiciary, the use of which I have made at the appropriate places. While reading the text of the lecture, I felt that I am listening to him in person. I extend my heartfelt thanks to him. Justice Lahoti released the first edition of Rule of the Heart – The Justice of Chandrashekhar Dharmadhikari and while doing so, he had urged that the biography should be translated into regional languages. He had also suggested the title for Hindi edition, “Dil Ki Saltanat” I am happy to say that the translations in Hindi and Marathi are ready. I wanted Motilal Setalvad’s, ‘My Lilfe, Law and Other Things’ for reference, but could not get it. It was Justice A.S. Bagga, Vice Chairman, Central Administrative Tribunal, who took pains to make it available to me from the CCI Library, Mumbai. He did it for his regards for justice Dharmadhikari and his love for me. I profusely thank him for his gesture. I am grateful to Shri Dhiru S. Mehta, who has been a constant source of encouragement to me.

I cannot forget thanking Smt. Nandini Mehta, a great Hindi Poetess. Her book, Jako Rakhe Gomaiya’ has provided me insight of those days. Advocate D.R. Irale provided me the Maharashtra Law Journals from 1977 to 1987 for which I am thankful to him. I thank all the three publishers namely, Global Indian Foundation, Rule of Singapore, Gandhi Smriti and Darshan Samiti Delhi and the Heart-the Justice of Chandrashekhar Institute of Gandhian Studies, Wardha for publishing the first edition of Dharmadhikari. I also thank them for bringing out second edition. I thank all those who have encouraged and helped me in the revision of the second edition.

Shehrao Chavan

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