"Many Voices. One World" a publication of UNESCO which contains the Final Report of the International Commission for the Study of Communication

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