Last Saturday, I attended the third Palkhivala Memorial Lecture at the IMAGE auditorium in Chennai. The speaker was Ram Jethmalani and he spoke on "The Judicial System - need for urgent reforms and Uniform Civil Code".
RJ was introduced by former Attorney General of India, K. Parasaran. RJ, he said was one of the youngest persons to become a lawyer - apparently he was just 18 when he became a lawyer. Parasaran described RJ as an outspoken and fearless person in articulating his thoughts and beliefs on various issues. RJ shifted from Karachi to the Bombay Bar after Partition and joined the bar around the same time as Nani Palkhivala who was a few years older than RJ.
RJ said he had interacted professionally with Palkhivala on many occasions since the 1950s, but the relationship grew closer only in the 1970s when RJ asked Palkhivala to appear on his behalf in a case against Indira Gandhi's Government, which had filed a case against RJ for a speech he made to the Kerala bar against the emergency. Palkhivala obtained an injunction which gave Jethmalani the time to leave the country for political asylum in the United States (I recall reading somewhere that it was Sorabjee who appeared on RJ's behalf, but this is right from Jethmalani himself. In the aftermath of the emergency, RJ was elected to the Lok Sabha in 1977). RJ echoed Sorabjee's words in the first Palkhivala Memorial Lecture and said that the 1990s were a watershed in Palkhivala's view of judges and Palkhivala was upset at the fall in the standards of the judiciary. RJ said he regarded Nani Palkhivala as the Joseph Schumpeter of India for his efforts at initiating creative destruction.
RJ raised three main issues:
1. The need for a National Judicial Commission in India as the appointing authority for the higher judiciary
Earlier, the Executive had the sole prerogative on the selection of judges (though in consultation with the Chief Justice of India). The Indira Gandhi government, being unhappy with the judgement in the Keshavananda Bharati case in 1973, decided to supercede all the three members of the bench in that case in selecting the next Chief Justice. This according to RJ was the beginning of the misuse of the Executive's prerogative. The system has changed in the late nineties to that of a collegium comprising the Chief Justice and a few senior judges of the Supreme Court as the appointing authority for judges. The current Vajpayee Government has introduced the 98th Amendment Bill in the Budget Session of 2003 proposing a National Judicial Commission (NJC) which will be in charge of appointing Judges to the higher judiciary and for transferring High Court Judges. RJ has been a strong advocate of the NJC, but feels that the bill should be modified so that the NJC will be a fair reflection of society and be balanced in composition including representatives from the ruling and opposition parties as well as the best legal minds in academia and the bar. Other sections of society like women, dalits and eminent personalities from other fields must also be part of the NJC, according RJ.
2. The need for a change in the law relating to Contempt of Court
Today, the Supreme Court can charge someone with Contempt of Court and decide on the punishment and the level of punishment can be arbitrary (RJ said they could even hang someone for it, if they chose) and the person punished would have no avenue for appeal. RJ was of the view that Parliament should be supreme even when it came to Contempt of Court and the law should be changed to reflect that.
3. The justification for and the practicality of the Uniform Civil Code
RJ made three points on the matter of the Uniform Civil Code (UCC).
a. RJ was critical of the Supreme Court for delivering gratuitous advice to the government on the necessity to enact a UCC and regretting the delay in doing so. Article 44, under the Directive Principles of State Policy, says "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." RJ said that this only indicated that the framers of the consititution had felt that a uniform civil code was something to strive for, but only at such time when it could be achieved without causing unacceptable social unrest and upheaval. RJ also said that the Directive Principles were in any case not enforceable by the courts and so the Supreme Court should refrain from making statments on the need to implement a UCC.
b. RJ asked if the minority communities were justified in opposing the UCC on the grounds they used.
The minorities claim that the UCC will infringe on their personal laws and customs like the rights of women, marriage etc.. and since these personal laws are part of their religion, it is tantamount to interfering in their freedom to practice their religion. RJ quoted Article 25 of the Consitution which says "Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion." RJ was of the view that the phrase "subject to public order, morality and health" indicates that the freedom to profess, practice and propagate religion comes with a caveat and so there is no basis for claiming that a uniform civil code would infringe on the religious rights of anyone. Having said that RJ also felt that the framing of the UCC should be guided by knowledge and inspired by love to make as many people as possible happy, and not done to thrust something down on the minorities.
c. On the need to enact the UCC now, RJ was emphatically against it saying now is not the time to embark on the UCC. He said the priority should first be to address the basic rights and priviliges enshrined in the consitution like providing education and universal justice to all, rather than trying to come up with a UCC, which could result in a lot of unnecessary social tension, chaos and conflict. RJ referred to an op-ed article which he had read in "The Hindu" that morning by Justice V.R. Krishna Iyer titled Unifying Personal Laws and said he was in complete agreement with Justice Krishna Iyer who said "Our founding fathers have been cautious in their phraseology while drafting Article 44 and therefore in a situation where the nation is in the grip of communal tension hurry must make way to moderation". RJ urged everyone to read Justice Krishna Iyer's article.
RJ was also critical of the Supreme Court for some recent decisions citing the instance of the overturning of the Mumbai High Court judgement which had increased the flying age of Air India airhostesses from 50 to 58 years. The Supreme Court, RJ said, was discriminating against women by saying there was nothing wrong in the flying age being 50 for women but 58 for men. Incidentally, RJ had argued the case on behalf of the airhostesses in the Supreme Court.
The Chennai press covered Jethmalani's speech, but chose to focus only on his views on the Common Civil Code and in passing mention his views on the National Judicial Commission. There was no mention of what he said on the Contempt of Court issue. The headline in "The Hindu" was Jethmalani not for common civil code and the one in the "New Indian Express" (Chennai) was Jethmalani opposes enactment of uniform civil code.
RJ's speech was attended by a small audience, in contrast to the larger audience turn out for the first two Palkhivala Memorial Lectures. There was also an air show organised by the Indian Air Force on the Marina beach in Chennai on the same morning and this resulted in huge traffic jams. This was largely responsible reason for the lower turnout of the audience.