How Manto's "Naya Qanoon" captures the gulf between law and the lived reality of some: Patna HC CJ Sanjay Karol explains in Webinar

Naya Qanoon or "The new Constitution", a short story by Urdu playwright and author Saadat Hasan Manto, on Friday found its way into a talk given by Chief Justice Sanjay Karol of the Patna High Court to explain how distributive justice remains an elusive goal given how some sections of the common man are treated. .Chief Justice Karol was speaking on the theme Social Engineering and Distributive Justice: High Courts under our Constitution in a webinar hosted by the CAN Foundation with NUALS, Kochi when he commented, ."The gulf between the rights enshrined in the Constitution and the experiences of those rights by the average person, the common man on the street is perhaps best captured in what an eminent writer Sadat Hasan Manto had to say in his short story Naya Qanoon ('the new Constitution').".Chief Justice Karol went on to briefly recount the story for the audience:."The story revolves around a tonga driver in Lahore. He is excited, awaiting the promulgation of the Government of India Act, 1935, which is heard will bring self-rule to Indians and finally send the despicable Englishmen packing out of his country. On the day, the Act is passed, the Tonga driver gets into a fight with an English customer for charging a really high fare. To his shock, he is dragged away by two constables. Despite his shouting, “Woh din guzar gaya... Ab Naya qanoon hein miya, naya qanoon” (loosely translated: ‘Those days are over… Now there’s a new Constitution’). The police ignore him, dismisses his utterances as rubbish and lock him up.".Drawing parallels between the tonga driver and those who continue to be deprived of their rights despite there being laws in place for the same, Chief Justice Karol said, ."The author (Manto), through his sly and piercing narrative, shows us how despite the best effort of its makers, the law may still feel alien, foreign and even oppressive to the ordinary masses... For me, every person who is deprived and marginalised still continues to be the tonga driver."Chief Justice Karol.The Webinar also featured Justice Anand Pathak of the Madhya Pradesh High Court and Senior Advocate Vikas Singh as speakers..The session was moderated by Prasanth VG, Partner at Jyoti Sagar Associates and Advocate Siddharth Sharma. .Vice-Chancellor of the National University of Advanced Legal Studies (NUALS), Kochi Prof (Dr) KC Sunny rendered the welcome address. The speakers for the event were introduced by Advocate Sriram Parakkatt..Watch the Full Session:.Civil and political rights cannot be meaningfully exercised without securing socio-economic security: Chief Justice Sanjay Karol."The Constitution is a lived reality, experienced by the people in their vocabulary and in their behaviour towards institutions and to other citizens", Chief Justice Karol observed during his talk. .He went on to add that even the Constitution framers had realised that while political democracy was essential, it was not enough to secure welfare and enduring social change.."Political democracy had to be accompanied by a set of social and economic directives pertaining to citizens’ health, education and livelihood... The preamble, which is a part of the Constitutional basic structure, has a certain revolutionary thrust as it seems to transform the socio-economic structure of our society.".He went on to emphasise that while the directive principles of State policy, while not justiciable, should not be viewed as ineffectual. These principles have been deliberately framed to not be inflexible and to leave room for future generations, to read, think and interpret, he said. .He added,"It would be a misnomer to deem the principles ineffectual or redundant just because they are textually distinct from the Fundamental rights and non-enforceable. On the contrary, these principles act, along with the preamble, as a set of of values to guide the citizens of India as also the Constitutional functionaries on whom there is great trust reposed under the Constitution."."Part III (Fundamental Rights) and Part IV(Directive Principles) are not opposites, they are complementary and supplementary to each other. Or in Nelson Mandela's words, 'We do not want freedom without bread, nor do we want bread without freedom.'"Chief Justice Sanjay Karol.Chief Justice Karol also spoke on how the higher Judiciary has been instrumental in realising the integrated visions of Part III and Part IV of the Constitution. Several of these principles have been read into the fold of Right to Life under Article 21, he pointed out. He further observed, ."In doing so, the Courts have arguably laid down the social minimum and that is Constitutionally essential and which must be provided to all citizens... What the Apex Court's jurisprudence emphasises and what High Courts across the country has since beautifully upheld is that civil and political rights cannot be meaningfully exercised without securing socio-economic security. The lofty stature of equality before law and the fundamental freedoms is meaningless to a litigant who is homeless, starving or unemployed.".Lawyers and Judges are healers, every file contains a life: Justice Anand Pathak.At the outset of his talk, Justice Anand Pathak highlighted, ."Justice is the first promise we made to ourselves through our preamble. Therefore, justice is a non-negotiable principle in Courts."Justice Anand Pathak.He went on to observe that, while the doctrine of separation of powers assigns a separate sphere and authority to different organs of the State, "... it is to be kept in mind that the doctrine is regarding separation of powers and not the separation of Constitutional goals. Therefore, preamble, Directive Principles and Fundamental Duties are to be seen in that perspective, being a repository of Constitutional goals and its spirit.".On the role of the Bar and the Bench in working towards the Constitutional goal of justice, he further remarked, ."One of the attributes to be inculcated within the stakeholders in the justice system is the thought that they are basically healers in society who try to treat and heal the patients or litigants. They are to be inculcated with the thought that every file contains a life. ".Agreeing with Chief Justice Karol on this count, Justice Pathak also spoke on the significance of High Courts in carrying out social engineering and ensuring distributive justice. ."The role of High Courts cannot be undermined", he said, adding that "for majority of litigants, the High Court is the final authority. Their limited resources do not allow them to take their disputes to the Apex Level. In that perspective also, the role of High Courts assume importance, because they cater to the needs of very poor and marginalised people. Providing them speedy and meaningful justice itself is distributive justice..The rise of virtual hearings, in some ways, have aided the cause of justice, he had occasion to observe. In this regard, Justice Pathak said, "No doubt physical hearing and its significance cannot pale into oblivion, but the new mechanism (virtual hearings) has strengthened the access to justice. Now, courts are available 24x7, even at distances, if exigencies are there. This transformation within 6 months is an example of social and algorithmic engineering, combined.".Before concluding his address, Justice Pathak also commented on how social engineering may be carried out using big data science and data mining. ."I expect that social engineering should use big data science and data mining to undertake post-litigation audit about the impact of litigation and justice dispensation. It can also take care of as to what extent justice dispensation is translated into justice realisation on ground", he observed..High Courts having wider powers in dealing with issues faced by the people: Vikas Singh.Senior Advocate Vikas Singh took the audience through a number of Supreme Court and High Court rulings that touched upon social engineering and distributive justice in the course of his talk..Among other rulings, the Supreme Court's verdict over whether prior enquiry is required before charging a person under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was discussed. .Singh recounted that a Division Bench of the Supreme Court had initially held that there should be a preliminary enquiry. However, when referred to a larger Bench, the Court overturned the Division Bench Judgment. .Singh commented that while he personally was of the view that the earlier Division Bench ruling was correct, the larger Bench had adopted reasoning that was significant in overruling the Division Bench. .He explained, "The larger Bench said that the whole purpose of protecting a person of the SC/ST who is being harassed will be defeated if, in the enquiry which is to be done, may be done by people who would be of the forward caste. So no body would depose or come forward to say what he claims to have happened has happened. The purpose of having a law where there is no bail for somebody who is charge of an offence will get defeated by this preliminary inquiry. Although personally, I may not agree. It’s a very important thought, I feel." .He added, ."When you look at the downtrodden people of our society and when you look at people who have suffered this kind of discrimination for centuries.. to bring them at par with everybody else in the society, the Courts have to play a very major role in ensuring that distributive justice is administered. ".Singh also opined that the High Courts have greater powers in tackling the problems faced by the common man. .Referring to issues such as the migrant crisis amid the COVID-19 lockdown and the impairment of justice owing to the delay in introducing police reforms, Singh remarked, "I personally feel that High Courts are having much wider powers that the Supreme Court while dealing with problems of this kind being faced by the people of this country.".He pointed out, "The migrant labour issue was first raised in the Supreme Court. On the 31st of March, unfortunately, the Supreme Court got carried away by the statement of the Government of India that there is no migrant labourer on the streets, and that every migrant labourer has been taken care of… Believing that statement, the Supreme Court accepted and closed that PIL on March 31. That was very unfortunate, and later on also, the Supreme Court remained in that same sort of numbness to this issue.". However, this was not the case with several High Courts, including those of Allahabad, Patna, Karnataka, Madras and Gujarat, Singh said. He observed, ."...the High Courts of this country, notwithstanding the attitude of the Supreme Court, rose to the occasion. Some of the High Courts did yeomen’s service in this... If you ask me, migrant people are the ones whose fundamental rights were really impacted by the lockdown and the pandemic. The rest of us may have suffered economic hardships. But the right to life and liberty was really at stake for them. Not giving recourse to them was, according to me, a great injustice and which was definitely corrected by the High Courts...”.As he concluded his talk, Senior Advocate Singh also commented, "I pray to the almighty that the tribe of the like of Justice Karol and Justice Pathak grow and we have more such judges who are humane and who look at the problem of the citizenry. Ultimately, the system is meant for the people.".The webinar came to an end after a question and answer session.