Inaugural Address by Dr. Rajendra Prasad, the Hon’ble President of India while inaugurating the Bar Association of India, at Vigyan Bhavan, New Delhi, on Saturday, the 2nd April, 1960.
Mr. Vice-President, Mr. Prime Minister, Mr. Attorney General, Ladies and Gentlemen, I think it is a wise decision which the members of the Bar have taken to establish an All-India Bar Association. It is wise particularly because this decision has been taken in good time. If there is any foundation for the apprehensions which the Attorney-General has given expression to, a body like this can help in resolving many of the difficulties which may arise and in guiding public opinion in the country and, if I may say so, also to the members of Legislatures in whose hands power of legislation is vested.As we all know, we have deliberately elected for a democracy, and the particular form of democracy which we have chosen for ourselves is on the lines of the British democratic Constitution. We are therefore naturally guided on many occasions by precedents and by actions of those concerned with the British Constitution. But it will be incorrect to think that we are entirely or principally based on the British Constitution. For one thing, there is the fundamental difference that in spite of whatever we may think or say, our Parliament is not sovereign in the sense in which the British Parliament is sovereign. The powers of our Parliament are limited just as the powers of our provincial or State Legislatures are limited, and they are limited by the Constitution itself. It may appear to an observer, who is an impartial observer, that the Parliament has got the power really to change the Constitution also. That is not the view that I take. By laying down a special procedure for altering the Constitution or for introducing amendments in the Constitution, the Constitution has laid down that the Parliament for the time being constitutes itself into a Constitutent Assembly for that particular function, and after having fulfilled that function it again reverts to the position of an ordinary Parliament for ordinary day-to-day legislation. This is so because, it is apparent that there are two kinds of amendments which are involved in our Constitution. There are certain amendments which can be passed more or less without much formality. There are others on which there are many restrictions and many kinds of limitations. A special procedure is provided without which the amendment cannot be passed, and therefore I say that when we make this distinction, we must recognize that the Parliament cannot be said to be sovereign in the sense in which the British Parliament is sovereign whose orders or whose decisions cannot be questioned in any court of law.
It is almost the daily experience of all of us that Acts and legislations passed by the Parliament are brought before courts on which they have to pronounce whether they are valid or they are not valid, whether the Parliament had the right to pass that particular law or it did not have the right, whether it had exceeded its jurisdiction or it had acted within its powers. If that is so, then we must realise that the Constitution for that very reason divides the functions of the various organs of the State and it makes each organ more or less self-sufficient and independent in its own sphere. If the Legislature is independent in its sphere, the Judiciary is equally independent in its own sphere. While one cannot and ought not to interfere with the activities of the other, each one has certain restraints which it has to put upon itself in order to be able to act justly and fairly, so that the work may proceed without any difficulty and without any obstruction. We know that in this respect, our State Legislatures pass laws, and many of these laws conflict with the laws passed by the Centre and according to the provisions of the Constitution itself, this conflict has to be resolved either by obtaining the assent of the President or by declaring that in the Concurrent field the decision of Parliament will be supreme as compared to the decision on the same subject of a State Legislature. The whole Constitution therefore envisages checks and balances so that unless each acts within its own sphere limited by the Constitution and even more so limited by its own sense of dignity and sense of restraint, the work of the Constitution cannot get on well. It is here, that the importance of the judiciary becomes so apparent and that is so when taking into consideration that the judiciary has to decide not only disputes between one individual and another, between one citizen and another but also between a citizen and the State, between one State and the Centre, between all the States on the one side and the Centre on the other and between one individual and the Centre. This gives a wide scope where the jurisdiction of the Court extends, and therefore, the responsibility of the courts becomes all the more important and it has to be realised by courts while giving any decisions.
The courts are helped and assisted by the members of the bar in carrying on their functions. They only make submissions; they do not advise the courts, and when the bar is strong it also provides the Government with the field for the recruitment of good judges. The tendency now is to confine all appointments to the higher posts in the judiciary to the members of the bar. If the bar is weak, the Judiciary will be weak. There can be no question about that, and if we want to have a strong judiciary, we must start with a strong bar, so that it can furnish the right type and the right calibre of judges. There is an old saying
यथा राजा तथा प्रजा।
Which means, as is the King, so are the subjects. I think this has to be reversed in a democracy
यथा राजा तथा प्रजा।
In a democracy, the rulers cannot be better than the ruled, because they represent the ruled, and they are selected and elected by those who are raised. They cannot obviously rise much above their own standards and above their own status. If they are wise, they will select wise men; if they are corrupt, they will select corrupt men and if they are good, they will elect good men. Therefore, it is the creation of public opinion of the right type, amongst the masses, amongst the people who have to constitute the Government, that has to be carried on continuously, without any break. The bar offers opportunities for its members to help in this matter as much as it can help in the actual administration of justice. I have therefore always felt that there is a need for a strong bar, and the formation of a bar association like the one that you are going to have is sure to help in the development of those qualities amongst the members of the bar, which will also be reflected in course of time in the members of the bench when they come to be exclusively recruited only from amongst the members of the bar.
There is only one more word which I would say, the Attorney-General has referred to the example of a similar association in America. There is no doubt that, it is a very ennobling and inspiring illustration which he has given to us, and I can only hope that the members of our bar will devote themselves with equal zeal and enthusiasm to the work.
Since independence, our litigation has changed its quality. Formerly members of the bar used to become rich, because there used to be a lot of land litigation about big zamindaris and so forth. Now, with the abolition of zamindaris and abolition of all big intermediaries, that kind of litigation has ceased. Formerly there used to be a lot of litigation in connection with land. There was little legislation but more litigation. Now we have more legislation but little litigation pertaining to land; I think it is not bad, but at the same time it adds to the responsibility and to the work both of the lawyers and of the judges because, the old conception that everyone was supposed to be in the know of the law and was to be held responsible for disobeying it because he was supposed to know it, should not hold good any longer, because we are producing legislation on such a mass scale now that it becomes impossible for anyone to keep himself fully acquainted with the trends of the new legislation, and details of it are, of course, out of the question. It is therefore all the more necessary for those who are in a position, to guide and to advise the ordinary man to keep themselves fully posted, fully up to date with regard to the trends of the law, so that they can give the ordinary man the right type of advice and their advice should not necessarily be for winning a case although it is important for a lawyer to win a case. But I think he is not there only for winning a case. He is there principally as an officer of the court, to help and assist the court; winning of a case is only an incidental thing. The real thing is that he is to assist the court so that the court may arrive at the correct conclusion. Since there are lawyers on both sides, the idea is that, all the points of view will be placed before the court and it will be left to the court to choose which is the best, which is the correct and which is the right one for adoption and acceptance. Therefore why merely argue from one point of view? It does not mean that you should accept the other point of view or that you should necessarily wish to win your case. You should always try to help the court so that, it may arrive at the correct and the right conclusion and if that ideal is held aloft by the members of the bar, I have no doubt that, the courts will also arrive at correct conclusions in most cases.
Ladies and gentlemen, I think I have trespassed upon your patience very much, to speak on a subject on which I have no right to speak, but since you have given me the indulgence, I have taken this opportunity.