‘Parliament not last word on validity of a law… people of India speak through this court’

Goel said the court has always protected people’s rights against arbitrary exercise of state power | PTI Photo/TV Grab

SC judge A.K. Goel, who retired Friday, in his farewell speech says the court, guided by dharma, has protected people’s rights “against any arbitrary exercise of state power”.

1. Hon’ble the Chief Justice of India
   & Hon’ble the Judges,
   the AG and Law Officers present,
   the Bar President and office bearers of the SCBA, the AOR & other associations,
   Senior Advocates, Members of the Bar,
   the Secy Genl, the Registrars and members of registry,
   Staff of the Bar Assn,
   distinguished guests,
   ladies and gentlemen:
   Good evening.

2. First of all, I sincerely thank the organisers for organizing this function and also to all present for sparing their valuable time in being here.
My sincere thanks to the Chief Justice, the AG, and the Bar President for all the kind words spoken on this occasion.

3. At the outset, I may say that I have greatly cherished the opportunity to have not only served on the Bench, but also being a member of this Bar, over my legal career spanning 44 years. The Bar and the Bench complement each other, and are instrumental in strengthening the Rule of Law in a democracy more so, in one like ours.

4. When I first joined the Bench, I met senior judges for their guidance and blessings. A retired chief justice kindly gave me valuable and inspiring advice, which has always guided me:
(a) This opportunity is not a position of status, but the trust of society and its mission is service
(b) Make every effort to fulfil People’s high expectations
(c) Work hard, make fair but also speedy decisions as litigants cannot afford to keep waiting
(d) Never compromise impartiality and righteousness even in one matter.
I have tried to keep this advice in mind.

5.Now I want to share with this august audience some reflections from my journey in the profession and contemporary events which moulded my thinking

* I grew up as a student learning the inspiring stories and sacrifices of our freedom fighters and leaders – Lal, Bal, Pal, Bhagat Singh, Udham Singh, Madan Lal Dhingra, Chander sekhar azad, Bismil, Neta ji,Gandhi, Nehru, Patel, and others. Their fight was against exploitation and injustice. Several of these leading lights were lawyers or had studied the law, and it is thanks to them that India became a Republic with the longest written constitution of any sovereign country representing values for which they stood – justice, liberty eqality and fraternity, ensuring dignity of individual.

*In late sixties and early seventies I observed interesting legal developments that shaped the Rule of Law in our country – Amendments to the constitution, challenges to these amendments – the judgements in golaknath case, the bank nationalisation, the privy purses case, the keshwanand bharati, the supercession of judges. These developments were matters of constant debates and showed the functioning of our Judiciary as a machinery for checks and balances against unconstitutional executive and legislative actions

*Destiny brought me the opportunity to join the profession and my entry in the legal profession co-incided with further significant developments – the setting aside of the PM’s election, the imposition of emergency, arbitrary exercise of power including power of detention and protection from by the courts against arbitrary actions , with of course the notable exception of the ADM Jabalpur case. Post emergency, decisions in Maneka Gandhi, Minerva Mills and other cases strengthened and expanded the scope of fundamental rights and judicial review making the powerful minority view of justice Khanna as the majority view.

*As a young lawyer, I was lucky enough to get the valuable opportunity to observe first hand, the functioning of eminent judges and senior advocates, which was a foundational source of learning for me. I witnessed this court –as an ever-vigilant sentinel on the qui vive, and those were exciting times indeed.

*I found seniors in the Bar as well as judges, very supportive and encouraging of young lawyers. I believe there is great opportunity in this profession if you are sincere, willing to work hard and have patience. Certainly luck has a role too.

*Initial phase of practice is a struggle. You get support from unknown sources. Even with average practice, I got the opportunity to be designated a senior advocate and invited to join the Bench.

*I never thought I had capability to be a good judge, having seen eminent judges and advocates whom I could never match but destiny brought me unique opportunities and for which I’m ever grateful.

6. I am proud of our rich and unique legal system and great people who have run it. The courts have firmly stood against arbitary or malafide exercise of power at any level. The judiciary in India enjoys high prestige and respect of people for the meaningful role it has played in rendering even handed justice. The Bar and the Bench deserve equal credit for this success.

7. This Court is unique in the world. Apart from traditional role of adjudication of disputes and settling the law, this court has been actively engaged in reviewing validity of executive and legislative actions on the anvil of fundamental rights, upholding the values in the Preamble and upholding the core principle, which is also its emblem: “yato dharma tato jayah” – the ‘victory follows the righteous’.

The story goes that Duryodhan sought blessings of his mother Gandhari for success in the great fight against pandvas. The righteous mother instead blessed only the righteous to be victorious, without bias for her son.

‘Dharma’ – the due process or the righteousness – represents the highest law and is the transcendental touchstone our society has held highest since time immemorial.

It is this principle which inspired the doctrine of basic structure and the doctrine of reasonableness which is read as being inherent in articles 14,19,21 – the golden triangle on which all disputed actions are tested. This is what inspired the majority view in Keshwanand Bharti, as well as the famous dissent in ADM Jabalpur, affirmed later in Coehlo and M.Nagraj.

This has remained the guiding principle through the changing times consistently in protecting people’s constitutional and human rights against any arbitrary exercise of State power . Today the Parliament is not the last word on validity of a law or even a constitutional amendment. “We, the People of India” speak through this court based on “Dharma” – the transcendental constitutional values which is the essence of Indian Democracy.

8. In serving this mission, this court has not shied away from using its power of interpretation to overcome barriers of lacunae in enacted law. Thus, food, shelter clothing, access to health, corruption free administration, access to education, clean environment, prison justice, protection of all human rights, dignified life, fairness in giving jobs and distribution of state largesses etc. have been read to be part of rule of law and right to life. I am thus, truly proud to have been associated with this court.

9. During my tenure in this Court, I have been fortunate to work with extremely learned brother and sister judges, who are the brightest and the noble human minds and the equally learned bar to handle crucial issues affecting the entire country, and to strengthen the Rule of Law . In his judgement in ADM Jabalpur while considering the effect of suspension of article 21 on enforcing the rule of law, Justice Khanna considered several definitions of rule of law – the principle thatall members of a society,(including those in government) are considered equally subject to publicly disclosed legal codes and processes” ; or “a government of laws and not of men”.

The World Justice project,(WJP), a US NGO which since 2008, publishes an annual “Rule of Law Index” – an assessment of countries’ adherence to Rule of Law, notes

“Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of equity, opportunity, and peace—underpinning development, accountable government, and respect for fundamental rights.”

These principles that have implicitly guided my thinking and decision making through my career – as an advocate but even more so as a judge.

10. The WJP Rule of Law Index 2017-18 ranks India at 62 among 113 countries.

For all our great accomplishments, this ranking is at the very least, a reflection of our very real and serious challenges and I would be remiss in not recognizing them..

The first is delay. 5 year old cases are 43%. Processes of recruitment to judiciary, training , performance appraisal methods, accountability procedures, procedural laws, more effective use of technology, reengineering of judicial hierarchy are some of the issues needing constant attention and review . Non availability of benches in this court to decide issues referred to larger benches is also an issue needing attention. Working of judiciary in a great measure depends on working of other wings. Without competent and speedy investigation, criminal justice system will remain deficient. Without accountable administration, volume of litigation against govt. will remain heavy.

11. Needless to say, this court’s mission requires deliberation and serious reflection. The burdening of this court’s docket has the unfortunate consequence of eclipsing some serious issues deserving of immediate attention, as lot of time gets spent on matters which are not meant to be dealt with by a highest constitutional court, and by expectations of unlimited oral arguments. This is compounded by impediments of unnecessary and frequent adjournments, delaying proceedings, and prohibitive costs of litigation for the common man. I am confident that aligned efforts of the Bench and the Bar can evolve a solution such that the common man is served better.

12. I have no doubt, and great hope, that with constant efforts of the bar and the bench, we can make our system number 1 in the world.

The new generation particularly promises a greater hope. “In confrontation between the stream and the rock, it is the stream which wins, not because of strength but because of perseverance.”

My vision for our future is embodied in the prayer “Sarve santu sukhina, sarve santu niramaya, sarve bhadrani pashyantu, ma kaschit dukh bhag-bhavet.”

I firmly believe that strengthening the Rule of Law can take us ever closer to making this a reality for the maximum people. With this, I take your leave and bid you farewell with all my best wishes. Thank you. Jai Hind.