“I am very happy to have this opportunity to join this very distinguished audience of judges, jurists, and legal luminaries from 54 Commonwealth countries in this historic and beautiful city of Hyderabad. I commend the organizers for this very important and opportune initiative. The theme of this conference “Emerging Economies – Rule of Law: Challenges and Opportunities” is specially relevant today when a new global architecture is taking place and there is restlessness in the air in many developing countries. The ability of emerging economies to be a partner in shaping the new international order in the 21st century will be determined to a large extent by the choices they make with respect to their systems of governance as well as the legal and institutional structures they devise for enforcing the rule of law.While the policy preferences that countries make are invariably rooted in the realities of their history, politics and culture, the fact of globalization and the challenges that the world community faces as a whole demand a purposive alignment of domestic policies and laws with the evolving international laws and norms.
This is necessary to address common challenges facing the humanity as a whole. There include international terrorism, poverty, malnutrition, amidst rapid growth, protection of human rights, climate change, energy security and I could go on. Indeed, the rule of law can no longer be divorced from “global policy languages”. The twin challenges of fostering law bound states and law based international environment will, I hope, engage the attention of this august assembly.
It is my firm belief that meaningful solutions to the problem of mass poverty that prevails in many developing counties can be found only in the framework of a rapidly expanding economy. Rapid economic growth therefore is a prime necessity.
To that end, it is necessary to create a macro-economic environment which is conducive to the promotion of savings, investment, entrepreneurship, innovation and the management of rapid technological changes. A sound legal system based on the rule of law and effective and speedy contract enforcement are the major determinant of a favourable macro economic environment that I have been talking about. At the same time, it is also necessary to ensure and this with point Chief Justice of India made that the fruits of development are distributed equitably. Thus developing countries need a legal system which is conducive both to rapid economic development and which also has a built in mechanism to promote an equitable distribution of gains from development.
Speaking for India, I wish to assert, our government stands committed to the pursuit of what the Hon’ble Chief Justice described as the inclusive economic growth. The welfare of the poor and the common man is the centre – piece of our policies. In this national endeavour we are inspired by the vision of the father of our nation Mahatma Gandhi and India’s first Prime Minister Jawaharlal Nehru. The story of India’s economic growth story remains firmly anchored in the Nehruvian vision of an egalitarian society. Our Constitution enumerates the Fundamental Rights of citizens and the Directive Principles of State Policy, which, through judicial interpretation are now read together to reinforce each other.
We have remained steadfast in our commitment to implement constitutional directives to ensure that our policies and laws uphold human dignity. While opening up our economy and freeing it from the shackles of bureaucratic controls over the years, we have endeavoured to pursue distributive justice as mandated in our magnificent Constitution. Article 14 and its specific manifestations in Article 15 and 16, remain the heart and soul of the diverse facets of the rule of law viz. non arbitrariness in state action, equality, reasonableness, proportionality and the doctrine of fairness. Similarly, article 21 is the fountain head of diverse rights which ensure our citizens freedom and dignity. Needless to say, this is an unfinished project and our nation has a long way to go in this direction.
An irrevocable commitment to democracy based on the rule of law remains the proudest achievement of the Indian state since independence. Our understanding of the rule of law as the sheet anchor of democratic rights and a just society is inextricably linked to the preservation of individual liberty and freedom of all our citizens. We believe that the power of the State is to be applied for the advancement of the basic human rights of all our citizens. But at the same time it should be so constrained by the rule of law as to advance civil and political rights of the individual and thus prevent oppressive governance.
It is a matter of pride for us that India is one of the very few nations, in the developing world and certainly the only one of its size and diversity to have remained a vibrantly democratic republic in real and in operational terms.It is a shining example of constitutionalism and the rule of law. India’s Constitution is not only one of the most comprehensive documents of its kind in the world, but one whose every phrase has been animated by vibrant and dynamic judicial interpretation. It is not a bare text, but a living, evolving organism. Constitutional jurisprudence, generally, has struck a balance in favor of perceived social good. Well known legal doctrines have thus been reinterpreted in the context of the legitimate demands of social justice, inclusive growth and redressal of historical injustices or imbalance within India’s fast transforming economy and polity.
The Indian experience of ensuring unity of its people amidst diversity I suggest could be of use to many other countries that face the challenge of establishing a national identity in spite of cultural and religious diversities in their societies. This, I believe, can be done by repudiating extreme positions, by giving enhanced choices to the people and by making use of the capacity of democracy to accommodate diversity and differences.
To ensure the cohesiveness of our pluralistic society, we have embedded secularism as a part of the basic structure of our Constitution.
Secularism I suggest to this august assembly, is a vehicle for managing plurality and is directly linked to federalism, another constitutional vehicle for managing plurality, multiplicity and diversity. Federalism operates as a safety valve for dissent, for discomfort and for dissatisfaction, channeling them into more manageable outlets within the constitutional structure. Over the last sixty years, our quasi federal structure has become increasingly more federal and more decentralized, not only through linguistic federalism, active judicial review by the apex court and the establishment of Panchayati Raj but also through fiscal federalism and the growth of regional political parties, and indeed, by national and regional coalitions.
Constitutional democracy with an unwavering commitment to the rule of law seems to me the best choice for emerging economies which seek justice – political, economic and social-for all. Considering the reality and scale of conflict, deprivation and exploitation that affect the lives of millions and millions of people in the developing countries, they need to take bold and imaginative measures to pursue the path of development with social economic growth and to pursue the path of development with a human face.
That the rule of law is an instrument of progressive change, social and political stability and economic development has been decisively demonstrated in countries which have embraced its spirit in their institutions.
The unparalleled creation of wealth in recent times is owed substantially to various legal protection norms and instruments governing business organizations, corporations, tradeable assets, labour contracts, workers associations, venture capital, insurance and protection of intellectual property rights.
Any political system in my view must ensure equality of opportunity and access to fair and neutral processes. It must empower citizens to respect, protect and fulfill their human rights. Legal empowerment of citizens must include universal franchise, free and fair elections, right to free expression, right to due process and equality of treatment – these being the basic essential characteristics of a genuinely democratic society.
Notwithstanding muted dissent by sceptics I believe that legal empowerment, development and democracy are demonstrably intertwined. Indeed, “democracy and legal empowerment are kindred spirits“ .With a view, therefore, to minimizing and eventually eliminating “rightless” people, there is a compelling need to pursue development strategies which provide effective livelihood security for the underprivileged and the poor. This is also a thought which justice Kapadia outlined in his addressed.At the same time, it is imperative to adopt legal empowerment measures which foster and institutionalize the access of the poor to legal services so that they know about available legal safeguards and are able to take advantage of them at affordable cost.
In response to the challenges of development and preservation of human rights and in serving as an agent of progressive change, law and society must remain in constant engagement in a dialectical relationship. To quote India’s first Prime Minister, Jawahar Lal Nehru “the rule of law must not be divorced from the rule of life”.In a fast changing world, the legal order must constantly adapt itself to change. That is the only way it can retain its relevance. In this context, the role of courts and judges in making law an instrument of social stability and progressive change cannot be over emphasized.
We are today witness to the evolution of India’s own constitutional jurisprudence through a series of landmark decisions of our Supreme Court, sometimes invited through public interest and sometimes through social action litigation. We find that in interpreting laws, our judges have also widened and deepened their scope and reach as law givers. This has also been the case in the evolution of law in other constitutional and parliamentary democracies.
A judicial system conceived to serve the cause of substantive justice and to remedy injustices cannot be limited by outdated precedents. The judicial process has in my view a dynamic role to pay, both as the guarantor of justice to litigants and as upholder of the constitutional ideals of our nation.
At the same time, it has to be ensured that the non-negotiable premise of the constitutional scheme – defined as the basic structure of the constitution is not subordinated to political impulses of the moment or to the will of transient majorities. Also while the power of judicial review must be used to enforce accountability, it must never be used to erode the legitimate role assigned to the other branches of government. This is vitally necessary to preserve the integrity and sanctity of the constitutional scheme premised on the diffusion of sovereign power.
These are some of the thoughts, which I thought I would place before this august assembly.
In conclusion, I would urge this distinguished audience of jurists and thinkers to reflect on practical, pragmatic ways and means which would ensure the continuing resilience and strength of liberal institutions of democracy and the rule of law in the framework of a rapidly expanding economy. We owe it to future generations to think anew and to build upon the edifice we have inherited.
With these words, I am truly delighted to inaugurate this very important conference.”
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