THE EFFECT OF GLOBLISATION ON LEGAL SYSTEM

[yogesh saxena]

THE EFFECT OF GLOBLISATION ON LEGAL SYSTEM
YOGESH KUMAR SAXENA, Advocate , High Court
"Many Voices. One World" a publication of UNESCO which contains the
Final Report of the International Commission for the Study of
Communication Problems, presided over by Sean MacBride, emphasizes the
importance of freedom of speech and press in the preservation of human
rights in the following terms:
. Democratization of Communication. Human Rights
Freedom of speech, of the press, of information and of assembly are
vital for the realization of human rights. Extension of these
communication freedoms to a broader individual and collective right to
communicate is an evolving principle in the democratization process.
Among the human rights to be emphasized are those of equality for
women and between races. Defiance of all human rights is one of the
media's most vital tasks. We recommend:
All those working in the mass media should contribute to the
fulfilment of human rights, both individual and collective, in the
spirit of the Unesco Declaration on the mass media and the Helsinki
Final Act and the International Bill of Human Rights. The contribution
of the media in this regard is not only to foster these principles,
but also to expose all infringements, wherever they occur, and to
support those whose rights have been neglected or violated
Professional associations and public opinion should support
journalists subject to pressure or who suffer adverse consequences
from their dedication to the defiance of human rights.
The media should contribute to promoting the just cause of peoples
struggling for freedom and independence and their right to live in the
peace and equality without foreign interference. This is especially
important for all oppressed peoples who, while struggling against
colonialism, religious and racial discrimination, are deprived of
opportunity to make their voices heard within their own
countries. Communication needs in a democratic society
should be met by the extension of specific rights such as the right to
be informed, the right to inform the right to privacy, the right to
participate in public communication - all elements of a new concept,
the right to communicate. In developing what might be called a new era
of social rights, we suggest all the implications of the right to
communicate be further explored.
The story of mankind is punctuated by progress and retrogression.
Empires have risen and crashed into the dust of history. Civilizations
have flourished, reached their peak and passed away. "and yet time has
his revolution, there must be a period and an end of all temporal
things, an end of names and dignities, and whatsoever is terrene."
The cycle of change and experiment, rise and fall, growth and decay,
and of progress and retrogression recurs endlessly in the history of
man and the history of civilization. T. S. Eliot in the First Chorus
from "The Rock" said :
"0 perpetual revolution of configured stars,
0 perpetual recurrence of determined seasons,
0 world of spring and autumn, birth and dying!
The endless cycle of idea and action,
Endless invention, endless experiment".
The law exists to serve the needs of the society, which is governed by
it. If the law is to play its allotted role of serving the needs of
the society, it must reflect the ideas and ideologies of that society.
It must keep time with the heartbeats of the society and with the
needs and aspirations of the people. As the society changes, the law
cannot remain immutable. Sydney Smith, said, "When I hear any man talk
of an unalterable law. I am convinced that he is an unalterable fool."
The law must, therefore, in a changing society march in tune with the
changed ideas and ideologies. Legislatures are, however, not best
fitted for the role of adapting the law to the necessities of the
time, for the legislative process is too slow and the legislatures
often divided by politics, slowed down by periodic elections and
overburdened with myriad other legislative activities. A
constitutional document is even less suited to this task, for the
philosophy and the ideologies underlying it must of necessity be
expressed in broad and general terms and the process of amending a
Constitution is too cumbersome and consuming to meet the immediate
needs. This task must, therefore of necessity fall upon the courts
because the courts can by the process of judicial interpretation adapt
the law to suit the needs of the society.
"It is something to show that the consistency of a system requires a
particular result, but it is not all. The life of the law has not been
logic: it has been experience. The felt necessities of the time, the
prevalent moral and political theories, intuitions of public policy,
avowed or unconscious, even the prejudices which judges share with
their fellow-men, have had a good deal more to do than the syllogism
in determining the rules by which men should be governed. The law
embodies the story of a nation's development through many centuries,
and it cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics. In order to know what it is, we
must know what it has been. and what it tends to become. We must
alternately consult history and existing theories of legislation. But
the most difficult labor will be to understand the combination of the
two into new products at every stage. The substance of the law at any
given time pretty nearly corresponds, so far as it goes, with what is
then understood to be convenient; but its form and machinery, and the
degree to which it is able to work out desired results, depend very
much upon its past."
The framers of our Constitution did not, however, want to frame for
the Sovereign Democratic Republic, which was to emerge from their
labour, a Constitution in the strict legal sense. They were aware that
there were other Constitutions that had given expression to certain
ideals as the goal towards which the country should strive and which
had defined the principles considered fundamental to the governance of
the country. They were aware of the events that had culminated in the
Charter of the United Nations. They were aware that the General
Assembly of the United Nations had adopted the Universal Declaration
of Human Rights, for India was a signatory to it. They were aware that
the Universal Declaration of Human Rights contained certain basic and
fundamental rights, appertaining to all men. They were aware that
these rights were born of the philosophical speculations of the Greek
and Roman Stoics and nurtured by the jurists of ancient Rome. They
were aware that these rights had found expression in a limited form in
the accords entered into between the rulers and their powerful nobles.
For instance, the accord of 1188 entered into between King Alfonso IX
and the Cortes of Leon, the Magna Carta of 1215 wrested from King John
of England by his barons on the Meadow of Runnymede . He was compelled
to- affix his Great Seal on a small island in the Thames in
Buckinghamshire - still called Magna Carta Island, and the guarantees
which King Andrew 11 of Hungary was forced to give by his Golden Bull
of 1822. They were aware of the international treaties of the mid-
seventeenth century for safeguarding the right of religious freedom
and the rights of aliens. They were aware of the full blossoming of
the concept of Human Rights in the writings of the "philosophers" such
as Voltaire, Rousseau, Diderot, Rayal, d'Alembert and others, and of
the concrete expression given to it in the various Declarations of
Rights of the American Colonies (particularly Virginia) and in the
American Declaration of Independence. They were aware that in 1789,
during the early years of the French Revolution, the French National
Assembly had in "The Declaration of the Rights of Man and of the
Citizen" proclaimed these rights in lofty words and that Revolutionary
France had translated them into practice with bloody deeds. They were
aware of the treaties entered into between various States in the
nineteenth century providing protection for religious and other
minorities. They were aware that these rights had at last found
universal recognition in the Universal Declaration of Human Rights.
They were aware that the first ten Amendments to the Constitution of
the United States of America contained certain rights akin to Human
Rights. They knew that the Constitution of Eire contained a chapter
headed "Fundamental Rights" and another headed "Directive Principles
of State Policy". They were aware that the Constitution of Japan also
contained a chapter headed "Rights and Duties of the People". They
were aware that the major traditional functions of the State have been
the defiance of its territory and its inhabitants against external
aggression, the maintenance of law and order, the administration of
justice, the levying of taxes and the collection of revenue. They were
also aware, that increasingly, and particularly in modem times,
several States have assumed numerous and wide-ranging functions,
especially in the fields of education, health, social security,
control and maintenance of natural resources and natural assets,
transport and communication services, and operation of certain
industries considered basic to the economy and growth of the nation.
That Section 8 of Article 1 of the Constitution of the United States
of America contained "a welfare clause" empowering the federal
government to enact laws for the overall general welfare of the
people. They were aware that countries such as the United States, the
United Kingdom and Germany had passed social welfare legislation.
The framers of our Constitution were men of vision and ideals, and
many of them. had suffered in the cause of freedom. They wanted an
idealistic and philosophic base upon which to raise the administrative
superstructure of the Constitution., They, therefore, headed our
Constitution with a preamble which declared India's goal and inserted
Parts III and IV in the Constitution.
"It may not be possible to frame an exhaustive definition of what
executive function means and implies. Ordinarily the executive power
connotes the residue of governmental functions that remain after
legislative and judicial functions are taken away. The Indian
Constitution has not indeed recognised the doctrine of separation of
powers in its absolute rigidity but the functions of the different
parts or branches of the Government have been sufficiently
differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption, by one organ or part of
the State, of functions that essentially belong to another. The
executive indeed can exercise the powers of departmental or
subordinate legislation when such powers are delegated to it by the
legislature. It can also, when so empowered, exercise judicial
functions in a limited way. The executive Government, however, can
never go against the provisions of the Constitution or of any law.
This is clear from the provisions of Article 154 of the Constitution
but, as we have already stated, it does not follow from this that in
order to enable the executive to function there must be a law already
in existence and that the powers of the executive are limited merely
to the carrying out of these laws."
When our Constitution states that it is being enacted in order to give
to all the citizens of India "JUSTICE social, economic and political",
when clause (1) of Art. 38 of the Constitution directs the State to
strive to promote the welfare of the people by securing and protecting
as effectively as it may be social order in which social, economic and
political justice shall inform all the institutions of the national
life, when clause (2) of Art. 38 directs the State, in particular, to
minimize the inequalities in income, not only amongst individuals but
also amongst groups of people residing in different areas or engaged
in different vocations. Art. 39 directs the State that it shall, in
particular, direct its policy towards securing that the citizens, men
and women equally, have the right to an adequate means of livelihood .
The operation of the economic system does not result in the
concentration of wealth and means of production to the common
detriment. There should be equal pay for equal work for both men and
women, it is the doctrine of distributive justice which is speaking
through these words of the Constitution.
. Every person is entitled to life as enjoined in Art. 21 of the
Constitution and in the facts of this case read in conjunction with
Art. 19(1)(d) of the Constitution and in the background of Art. 38(2)
of the Constitution every person has right under Art. 19(1)(d) to move
freely throughout the territory of India and he has also the right
under Art. 21 to his life and that right under Art. 21 embraces not
only physical existence of life but the quality of life and for
residents of hilly areas, access to road is access to life itself.
These propositions are well-settled. We accept the proposition that
there should be road for communication in reasonable conditions in
view of our constitutional imperatives and denial of that right would
be denial of the life as understood in its richness and fullness by
the ambit of the Constitution. To the residents of the hilly areas as
far as feasible and possible society has constitutional obligation to
provide roads for communication.
"The functions of Government under our system are apportioned. The
legislative department has been committed the duty of making laws; to
the executive the duty of executing them : and to the judiciary, the
duty of interpreting and applying them in cases properly brought
before the Courts. The general rule is that neither department may
invade the province of the other, and neither may control, direct, or
restrain the action of the others." It is also well to remember that
freedom depends upon the separation of three organs of the State.,,
Each must function within its own domain and remain distinct.
On this aspect, it is appropriate to recall what Montesquien in 'The
Spirit of the Law'
"Democratic and aristocratic States are not in their own nature free.
Political liberty is to be found only in moderate governments; and
even in these it is not always found. It is there only when there is
no abuse of power. But constant experience shows us that every man
invested with power is apt to abuse it, and to carry his authority as
far as it will go. Is it not strange, though true, to say that virtue
itself has need of limits?. In every government there are three sorts
of powers : the legislative the executive in respect of things
dependent on the law of nations and the executive in regard to matters
that depend on the civil law..
The political liberty of the subject is a tranquillity of mind arising
from the opinion each person has of his safety. In order to have this
liberty, it is requisite the government be so constituted as one man
need not be afraid of another. When the legislative and executive
powers are united in the same person, or in the same body of
magistrates, there can be no liberty; because apprehensions may arise,
lest the same monarch or senate should enact tyrannical laws, to
execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not separated
from the legislative and executive. Were it joined with the
legislative. the life and liberty of the subject would be exposed to
arbitrary control; for the judge would be then the legislator. Were it
joined to the executive power, the judge might behave with violence
and oppression.
There would be an end of everything, were the same man or the same
body, whether of the nobles or of the people, to exercise those three
powers, that of enacting laws, that of executing the public
resolutions, and of trying the causes of individuals."
. Judicial review of the administrative action or inaction where there
is an obligation for action should be with caution and not in haste.
Its sense of priority it has determined, there may have been certain
lethargy and inaction. It has been said by Adam Smith in his 'Wealth
of Nation' that whenever you see poverty widespread rest assured that
either of the two causes must have operated, either energy has not
been applied or energy has been misapplied.
"The judge, even when he is free, is still not wholly free. He is not
to innovate at pleasure. He is not a knight-errant roaming at will in
pursuit of his own ideal of beauty or of goodness. He is to draw his
inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to
exercise a discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to "the primordial necessity
of order in the social life." Wide enough in all conscience is the
field of discretion that remains."
. It is not necessary to express our opinion in this case whether our
Constitution is truly based on Montesquien system of separation of
power. We accept the position that Court cannot usurp or abdicate, and
the parameters of judicial review must be clearly defined and never
exceeded. Judicial review of administrative action depends upon the
facts and circumstances of each case. Its dimension is never closed
and must remain flexible. But in this case the order of the High Court
in the light we have read it, does not exceed that parameter.
Our Constitution does not use the expression 'freedom of press' in Art.
19 but it is declared by Supreme Court that it is included in Art.19(1)
(a) which guarantees, freedom of speech and expression. In todays'
free world freedom of press is the heart of social and political
intercourse. The press has now assumed the role of the public educator
making formal and non-formal education possible in a large scale
particularly in the developing world, where television and other kinds
of modern
Freedom of expression has four broad social purposes to serve : (i) it
helps an individual to attain self fulfilment, (ii) it assists in the
discovery of truth, (iii) it strengthens the capacity of an individual
in participating in decision-making and (iv) it provides a mechanism
by which it would be possible to establish a reasonable balance
between stability and social change. All members of society should be
able to form their own beliefs and communicate them freely to others.
In sum,the fundamental principle involved here is the people's right
to know. Freedom of speech and expression should, therefore receive a
generous support from all those who believe in the participation of
people in the administration..
Article 19 of the Universal Declaration of Human Rights, 1948
declares : "Every one has the right to freedom of opinion and
expression, this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers."
"The objection that our judicial institutions lack the political power
and prestige to perform an active role in protecting freedom of
expression against the will of the majority raises more difficult
questions. Certainly judicial institutions must reflect the
traditions, ideals and assumptions, and in the end must respond to the
needs, claims and expectations of the social order in which they
operate. They must not and ultimately cannot, move too far ahead or
lag too far behind. The problem for the Supreme Court is one of
finding of the proper degree of responsiveness and leadership or
perhaps better, of short-term and longterm responsiveness. Yet, in
seeking out this position the Court should not under-estimate the
authority and prestige it has achieved over the years. Representing
the conscience of the community" it has come to possess a very real
power to keep alive and vital the higher values and goals towards
which our society imperfectly strives Given its prestige, it would
appear that the power of the Court to protect freedom of expression is
unlikely to be substantially curtailed unless the whole structure of
our democratic institutions is threatened"
"Court reiterated that the freedom of speech and expression guaranteed
under Art. 19(1)(a) of the Constitution includes that freedom of press
i.e. the freedom of propagation of ideas, and that freedom is ensured
by the freedom of circulation. Liberty of circulation is as essential
to that freedom as the liberty of publication. Central to the concept
of a free press is freedom of political opinion and at the core of
that freedom lies the right to criticise the Government, because it is
only through free debate and free exchange of ideas that Government
remains representative to the will of the people and orderly change is
effected. When avenues of political expression are closed, Government
by consent of the governed would soon be foreclosed. Such freedom is
the foundation of free Government of a free people. Our Government set
up being also limited and responsible we need requisite freedom of any
animadversion for our social interest which ordinarily demands free
propagation of views. Freedom to think as one likes and to speak as
one thinks are as a rule indispensable to the discovery and separate
of truth and without free speech, discussion may be futile."
"We feel it our duty to say that the executive action taken in this
case by the State and its officers is destructive of the basic
principle of the rule of law. The facts and the position in law thus
clearly are (1) that the buildings constructed on this piece of
Government land did not belong to Government, (2) that the petitioners
were in possession and occupation of the buildings and (3) that by
virtue of enactments binding on the Government, the petitioners could
be dispossessed, if at all, only in pursuance of a decree of a Civil
Court, obtained in proceedings properly initiated. In these
circumstances the action of the Government in taking the law into
their hands and dispossessing the petitioners by the display of force,
exhibits a callous disregard of the normal requirements of the rule of
law apart from what might legitimately and reasonably be expected from
a Government functioning in a society governed by a Constitution which
guarantees to its citizens against arbitrary invasion of the executive
of peaceful possession of property."

The Constitution enshrines and guarantees the rule of law and the
power of the High Courts under Art. 226 (which is equally true of Art.
32) is designed to ensure that each and every authority in the State,
including the Government acts bona fide and within the limits of its
powers and that when a Court is satisfied that there is an abuse or
misuse of power and its jurisdiction is invoked, it is incumbent on
the Court to afford justice to the individual. The Court further
observed that in such an event the fact that the authority concerned
denies the charge of mala fide, or asserts the absence of oblique
motives or of its having taken into consideration improper or
irrelevant matter, does not preclude the Court from inquiring into the
truth of the allegations made against the authority and affording
appropriate relief to the party aggrieved by such illegality or afuse
of power in the event of the allegations being made out.
There is a growing body of authority, attributable in large part to
the efforts of Lord Denning, to the effect that in some circumstances
when public bodies and officers, in their dealings with a citizen,
take it upon themselves to assume authority on a matter concerning
him, the citizen is entitled to rely on their having the authority
that they have asserted if he cannot reasonably be expected to know
the limits of that authority; and he should not be required to suffer
for his reliance if they lack the necessary authority."

In the context of our national dimensions of human rights, right to
life, liberty, pollution, free air and water is guaranteed by the
Constitution under Articles 2.1, 48A and 51 (g), it is the duty of the
State to take effective steps to protect the guaranteed constitutional
rights.
There is yet another aspect "which needs consideration by the
Government and the Parliament. Industrial development in our country
and the hazards involved therein, pose a mandatory need to constitute
a statutory "Industrial Disaster Fund", contributions to which may be
made by the Government, the industries whether they are transnational
corporations or domestic undertakings, public or private. The extent
of contribution may be worked out having regard to the extent of
hazardous nature of the enterprise and other allied matters. The Fund
should be permanent in nature, so that money is readily available for
providing immediate effective relief to the victims. This may avoid
delay, as has happened in the instant case in providing effective
relief to the victims. The Government and the Parliament should
therefore take immediate steps for enacting laws, having regard to
these suggestions, consistent with the international norms and
guidelines contained in the United Nations Code of Conduct on
Transnational Corporations