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On March 18, 1996 the Time magazine, London published an interview of former Chief Justice of India PN Bhagwati where he stated,
“The Supreme Court (of India) today is the most powerful court in the world”.
The article proceeded to state,
“Nowadays, however, Indians are less likely to rely on politicians for redress of their grievances than on the Supreme Court. From garbage disposal to the removal of polluting factories from the vicinity of the Taj Mahal, hardly any matter seems beyond the court’s purview.”
I would not demur from the statement that the Supreme Court of India is the most powerful court in the world. To a great extent, Justice Bhagwati himself was responsible for this metamorphosis of the Supreme Court. From the beginning, he rejected the theory that judges do not make law and that it was no part of the function of a judge to decide what the law should be. He was of the opinion that lawmaking was an inherent part of the judicial process. He characterized the mere textual interpretation of a law as a phonographic theory of judicial function, merely following “His Masters Voice”.
To this end, he breathed life into Article 21 of the Constitution. The Right to Life was not a right to a mere animal existence, but as interpreted by Justice Bhagwati in Francis Coralie Mullin, was the right to exist with human dignity, to live a full life, with the right to employment, the right to shelter and the right to health and education.
In Maneka Gandhi, Justice Bhagwati, again dealing with Article 21, held that the “procedure established by law” in Article 21 had to be read as a procedure which was just, fair and reasonable. Otherwise a procedure which provided for a cruel and unusual punishment, like cutting off a hand for theft, would still have the imprimatur of Article 21.
For Justice Bhagwati, “judicial activism” was not a bad word. On the other hand, it was an essential weapon in the armory of the court for the purpose of ensuring that social justice was extended to every section of the population.
The door thrown open by Justice Bhagwati has resulted in the future generation of judges improving upon the theory and principles enunciated by him and implemented in judgments, as a result of which the Supreme Court of India was able to go into areas, by interpreting Article 142 of the Constitution, so that judgment after judgment practically bordered on governance of the country.
I had the good fortune to appear before Justice Bhagwati when he was Chief Justice of India in 1979 – 1980, when the Janata Dal government was in power, and the seminal issues relating to the emergency were being discussed. Subsequently, we were together in the organization known as SAARCLAW. Till he passed away on June 15, 2017, he was a patron of this organization of lawyers from the eight SAARC countries.
He was a genuine human being, kind and affable. The country has lost a great jurist and a great visionary.