The Citizen and Judicial Reforms

THE

CITIZEN AND

IUDICIAL REFORMS Under Indian Politv

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THE

CITIZEN AND

IUDICIAL REFORMS Under Indian Potity

Editor

Subhash C. Kashyap

Oniversql Lw

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CONTENTS Foreuortl

Vll

x

Tnble of Cases

PART I : INTRODUCTION

o

Judiciary in Indian Polity Subhash C. Knslryap

PART

. r

II : JUDICIARY AND IUDICIAL REFORMS

Why has Judiciary Failed? Shmti Bhushnn

Jf,

Judiciary and Judicial Reforms

l.S. Vemw

.

Some Aspects of fudiciary

Rnjindar Sachar

o

69

Judiciary and Legislature Biplab Dasguptn

IJ

PART III: THE CITIZEN, TUSTICE AND TUDICIARY

o

The Citizen and Judicial Reforms R.S. Pathak

The Citizen and the Performance of the Iudiciarv Shiuroj Pntil

81

6J

Citizenship Values and Quality of fustice Shio Daval

90

Mechanism for Accountability and Making Justice more Citizen-f riendly and lnexpensive

N.Vittal

106

Common Man and fudicial Reforms Randhir lailt

Fundamental Duties of Citizenship and Administration of lustice K.V. Visltwanntlnn

t25 IJU

PART IV: APPOINTMENT AND REMOVAL OFIUDGES Quality of Judges

Murli

C. Blnrnlnre

147

Appointment, Transfer and Removal of Judges Shynmlha Pappu

LJZ

The Citizen and Judicial Reforms

Crlteria and Procedure for the Appointrnent of ]udges Mohendra P. Singh

159

Removal of Supreme Court and High Court Judges Satya Praknsh Malaoiya

Independence of Judiciary, Appointment of Judges and Rights of Citizens Pinki Anand

176

179

Quality of Judges S.S. Vishweshwaraiah

PART

189

V: ADMINISTRATION OFIUSTICE

Probity in Administration of Justice 193

P.P. Rao

Pendency of Cases P.K. Dat;e

195

.

Technology and Justice P,V. Indiresan '

t97

Subordinate Courts - Their lndependence, Appointments and Conditions of Service

206

K.N. Bhat

e

Criminal Justice Administration in Myth and Reality 217

Rnnbir Singh o

. Reforms in the Crirninal Justice System D.R. Knarthikeyan

o

Impact of Judicial Activism on Personal Laws - A Case Study K.M.H.Rayappa

226

238

PART VI : JUDICIAL ACCOUNTABILITY AND

CONTEMPT IURISDICTION

. o

- Its Parameters Mohd. Sardar Ali Khan

Contempt Jurisdiction

Contempt of Court and Accountability of Judiciary

Anil Diwan

r

1AE

Judicial Accountability - Removal of Judges and Contempt of Court Prashant Bhushan

Subject Index

25b

259 268

FOREWORD "We the people of India" have completed more than half_a_cenfury of our life as a sovereign Republic. There have been scores of achievements of

-hi"h we can be proud most legitimately. On the political plane, our greatest successes have been (i) maintenance of the

unity and integrity of the nation and secular character of the polity, and (ii) preservaiion of freidom and democracv. on the negative side, however, we have not been able to fulfil the vision and the

dreams.of our founding fathers. we have failed to bring "justice - social, ,,the dignity of the :cgnoTrc and political" to all our citizens and to assure individual" citizen promised in the preamble to the Constitution of Indii. Indian polity today is passing through difficult times. euestion marks are being raised about the functioning of the three organs of the state the Executive, the Legislature and the Judiciary. people are fast losing faith in the guglity, integrity and efficiency of most governmental irutitufrons. Even judieiary which was the last bastion of hope in our polity has begun to face serious erosion in its credibility. The prevailing scenatio is indeed ?isturbing. A great deal has been written and debated on the weaknesses of the working Jf our Legislaturesi,, our political leadership; and our system of puEfic . administration - all these requiring basic reforms. However, iudiciary has been generally treated as a holy cow in this debate. people have been mosi reluctant to appraise the working of the Judiciary for ensuiing its accountability to the pegqle. It is high time that questions'are asked on who will judge theludges; lld \9- can we bring justice to the common person in " .rudibli ana peoite_ friendly manner. The centre for Policy Research has been involved for a rong time in undertaking studies in the field of good govemance. Recently, as a 'withof its larger project on political reforms, it organized in collaboration fart .the citizenship Development society a specialiied conference on ,The citizen and Judicial Reforms under Indian polity'. several other conferences were recently organized by this Centre in different parts of the country which had devoted a session to reforming the Judiciary. This volume is edited by Dr. subhash C JGshyap. Honorary Research professor at *re centre for poricy Research and

viii

The Citizen and Judicial Reforms

eminent constifutional expert. It is based on the selected paPers Presented at the conference on 'The Citizen and fudicial Reforms under Indian Polity' organized by us during April 13-14,2002 and includes a few special papers on judiciary discussed at earlier conferences on Political Reforms. Besides a very comprehensive and incisive inhoduction by the editor, the

present sfudy contains valuable contributions from some of the most distinguished leaders moulding Indian public opinion - parliamentarians -

former Lok Sabha Speaker, Governors and Cabinet Ministers - eminent Judges including former Chief fustices of India; jurists; leading advocates; and senior administrators; and the academics. The topics covered in this volume include some of the most sensitive issues like the citizens' woes with special reference to the costs and delays of justice; the quality and procedures for appointment and

judges; flaws in the system of adminishation accountability of the |udiciary and contempt jurisdiction.

removal

of

of

justice;

We are delighted to present this wcirk before the interested citizens of India and all other readers. We hope that it wlll be read with interest and will help to generate a wide national debate. We also hope that the ensuing debate will result in taking effective corrective policy measures for ensuring citizen-oriented iudicial reforms. Needless to add the caveat that the views expressed in this book are those

of the individual writers and should not be

ascribed

to their sponsoring

organizations. The publishers

- Universal * deserve our thanks and admiration for their cooperation in bringing out this book with such speed and with good quality of production.

KB LALL

CHARANWADHVA

President, CDS

President, CPR

TABLE OF CASES Advocate on Record Association zr. Union of India, 1993 (4) SCC 441 Ajit Singh II 2,. State of Punjab, (1999) 7 KC 209

155

Ashok Kumar's case, (1985) 4 SCC 417

207

Attomey General (1974) AC273 B.R. Kapur

zr.

z'.

209

Times News Papers Ltd., (1973) 1 All ER 815:

245,252 208

State of Tamil Nadu, (2001) 7 SCC 231

Balogh u. Crown Court at St. Albans, 1975 QB 73 Bandhua Mukti Morcha a. Union of India, AIR 1984 SC 803

249

Barada Kanta o. Registrar, Orissa High Court, AIF. 7974 SC 710

247

Bholanath

zr.

State of Uttar Pradesh. (1990) Supp SCC 151

Brahma Prakash Sharma u. State of Uttar Pradesh, AIR 1954 SC 10 C. Ravichandran Iyer

?,.

Justice A.M. Bhattacharya. i995 (5) SCC 457

Chand Dhawan z. Jawaharlal Dhawan,1.993 Cr LJ 2930 Ct$etriya Samiti z'. State of Uttar Pradesh, (1991) I SCI 130

Chhetriya Pradushan u. State of Tamil Nadu, AIR 1991 SC 417 "Common Cause" a Registered Society u. Union of India, (1996) 6SCC775: AIR 1997 SCW 290 Common Cause o. Union of Indi a, (1996) 4 KC 33: AIR 7996 SCW 2279 Delhi Judicial Services Association z.r. State of Gujarat, (1991) 4 SCC 406 Denial Latifi a. Union of India, (2001) 4 LRI 36 Gaurav Jain o. Union of India, AIR 1990 SC 292

Hira Lal u. State of Uttar Pradesh, AIR Indra Swaney, (1992) Supp 3 SCC 217

1954 SC 743

238 1.6

16

98 98

207 240

lb

El 104

1

Kewal Chand Mimani u. S.K. Seru (2001) 6 SCC 512 M.C. Mehta a. Union of India, AlR1997 K7U M.S. Sharma u. Sri Krishna Sinha, AIR 1959 SC 395

Maharshi u. State of Uttar Pradesh, AIR 1990 All 52 Marbury o. Madison, 2 Led 60 (1803): 5 US 137 Mehta o. State of Tamil Nadu, AIR 1991 SC 417 Mohammed Ahmed Khan u. Shah Bano Begum.AIR 1985 SC 945 u.

r57

245

789

Kesavananda Bharati o. State of Kerala, 1973 Supp SCR

Morris

16

251

209

K. Johnson o. Grant, K.C. Sarin u. C.B.I.,2001 (6) SCC 584 1923

15

The Crown Office,1970 (2) QB

ll4

ZJJ

95, 103 L6

8

t5 JO

t6 239

z+J

O.P. Bhandari, 1986 (3) SCR 923

157

P.C. Sen (in re), A1R1972K.1821

251

P.V. Narsimha Rao o. State (CBI/SPE), AIR 1998 SC 2120

Parashuram Deteram

Shamdasant u.

King Emperor,1945 AC 264

10

249

The Citizen and

Perspective Publication u. State of Maharashtr4, AIR 1g7l Presidential Reference (in reJ, AIR 1999 SC 1

ludicial Reforms

K.221

252,255 160

R. u. Gray, (1900) 2 QB 36 Raj Deo Sharma u. State of Bihar, AIR 1998 SC 3281

Rajasthan

Union of India, 1978 SCR 1 (80-81): Rugmani a. Achutha, AIR 1991 SC 983

S.P. Gupta

z'.

gne)

251,252 97

SCCS12

President of India, AIR t9B2 SC 149 S.P. Gupta a. Union of India, 1982 (2) SCR 365: AIR 19g2 SC 149 SCAOR zr. Union of India, AIR 1994 SC 268

1.52,233 76

zr.

15

1.8,46,154,1,@ +o

State of Rajasthan u. Union of India, AIR 1977 $C 1361 Subhash u. State of Bihar, AIR 1991 SC 420

11

1t

16

Supreih6 Court Advocates-on-Record Associatlon u. Union of India,

AIR 1994 SC 268

T.C. Mathai

1.8,1.60,182

District Session Judge, (1999) 3 SCC 614 Tehri Baandh z. State of Uttar pradesh, (1991) I UJSC 121 Third Judges case, AIR 1999 SC 1 Vinay Chandra Mishra (jn re'), (1995\ 2 SCC fi4 Vishal o. Union of India, (1990) 3 SCC 318 zr.

Workers of Rohtas Industries Ltd. o. Rohtas Industries Ltd., AIR 1990 SC 491

102 15

767 207

l5 15

Part

I

IrurnoDUCTroN

TUDICIARY

IN INDIAN POLITY

Subhash C. Kashyap*

Introihrction: Indian polity is under severe strain. Faith of the people in the quality, integrity and efficiency of govemmental institutions stands seriously eroded. They tum to the judiciary as the last bastion of hope. But, of late, even here things are getting increasingly disturbing and one is unfortunately no more in a position to say that all is well with the Jttdiciary. Currently, various constitutional reforms are being talked about. There is considerable stress on suggestions directed towards bringing about probity in public life and in administratiory stability and accountabiiity of the executive, electoral and parliamentary reforms, better quality of legislation and conduct of legislators etc. Unfortunately, there is tremendous reluctance to touch the judiciary and consider reforming the system of judicial administration. On an objective analysis, however the case for some far-reaching judicial reforms may be found to be unassailable and at least deserving of as much importance and Lrrgency as reforms in any other area. There is every need to review the working of the judiciary during the last half-a-century and more, to assess how far our justice delivery system has been able to provide equal "Justice - social, economic arid political" to ail the peopie as ordained by the Preamble and the basic scheme of the Constitution. And, if we have faiied or there are shortcomings in the system, what can be done to remedy the situation. This paper proposes to analyse the interrelationship of the different organs of the State and more particularly the position of the judiciary in Indian. polity. Questions pertaining to the independence and accountability of thd judiciary, administration of justice, judicial delays, appointment and removal of judges, judicial review, contempt of court, hyper-activism of the judiciary, Public

*

Hon. Professor Centre for Policy Research, was Member Nationai Commission to Review the Working of the Constitution and Chairman of its Drafting and Editorial Committee, also former Secretary-General of Lok Sabha. 3

4

fhe Citizen and ludicial Reforms

Interest Litigation and high costs of judicial process have been raised and possible remedies and reform options suggested. The focus throughout is on the citizery on'We, the People' who gave to ourselves the Constifution. Democtatic Polity anil the Constitution: In a democracy, sovereignty must vest in the people and ideally the people should govern themselves. But, with the growing complexities of governance and the size of the nation states, direct democracy of the type of Greek city sthtes or the Indian village republics of ancient times, is nornore feasible. Aiso, except in a primordial or revolution sitr.ration, sovereignty in the hands of the people is an abstraction. In order to become exercisable, this sovereignty has to be instifutionalised. The very first and the most fundamental appiication of their sovereignty by the people is in giving to themselves a Constitution. The Constitution of India establishes the main organs of the State - the legislature, the executive and the judiciary - defines their powers, delimits their , jurisdictions, demarcates their responsibilities and regulates their relationships with each other and with the people. jUnlike the U.K., India has a written Constitution. The positions, powers and functions of each organ of the State, therefore, are only as ordained by the Constitution under its scheme of checks and balances. Each has to discharge its duties only within the domain assigned to it.

Ultimately, no institutiory however supreme, is above the people. Neither of the three - executive, legislature and judiciary - can arrogate to itself a position superior to the collective sovereign will of the people to which they are and must at all times remain totally responsible and accountable for the discharge of their duties. No power within or outside the dountry - not even the Supreme Court can prevent the people of India from bringing about any desirable reforms if at any time, in exercise of their sovereign powers, they decide to do so. The only question will be of the mechanism for the expression of the popular will. The High Courts and the Supreme Court set up by the Constitution as parts of an independent judiciary, form a single integrated judicial structure with jurisdiction over all laws - Union, State, Civil, Criminal or constitutional. Unlike the U.S., we do not have separate iederal and State Court systems. The entire judiciary is one hierarchy of courtF. It not only adjudicates disputes and acts as the custodian of individual rights and freedoms but may from time to time need to interpret the Constitution and review legislation to determine its vites ais-a-ztis the Constitution. The word of the Supreme Court is the final law of the land binding on all lower courts unless its interpretation is reviewed or reversed by the supreme court itself or the 1aw or the Constifution is suitably amended by Parliament. The Supreme Corrrt also functions as the arbiter of any disputes in regard to jurisdiciion and distribution of powers befween the Union and the States in the context of the federal structurl intur alh with powers of legislation divided between the Union Par_liament and State Legislatuies.

In a parlramentary polity, executive also is a part of the legislature. It it and exercises powers of governance only on its behalf. under the scheme of the constitution of India, comes out of the legislafure, remains responsible to

ludiciary in Indian

Polity

s

Parliament is not sovereign and the Supreme Court is not supreme except in its

own domain. The Parliament and the Judiciary come into contact with each other in many ways. Their interface and inter-relationship, therefore, assumes greater significance.

Parliament's Pozoer ois-a-ais Conrts: Parliament has the power to make laws regulating the constitutiory organisation, jurisdiction and powers of the courts. It was laid down in the Constitution that the number of judges other than the Chief Justice would not be more than seven. The Parliament was, however, empowered to prescribe a larger number of judges by law (article 124). Under this provision, it has been possible for Parliament to raise the number of judges to 25. Parliament may by law:

i.

extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any Union tenitory;

ii.

establish a common High Court for two or more States or for two or more States and a Union territory and

iii.

constitute a High Court for a Union territory or declare any Cowt in any such territory to be a High Court for all or any of the purposes of the Constitution (article 241).

Parliament may by law provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States. The law made under the provision may specify the jurisdiction and powers of the tribunals. Such law may exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect of certain specified matters (articles 323A and 3238). Further, the Constifution empowers Parliament to create an all-krdia judicial service which shall not include any post inferior to that of a district judge (articles 312(1) and (3)).

The validity of any proceedings in either House of Parliament cannot be questioned before a court of law on the ground of any alleged irregularity of procedure (articles 722(7) and 212(l)). The presiding officer of each F{ouse or any other officer or Member of Parliament who is for the time being vested with the powers to regulate procedure, or to enforce or carry out the decisions of either House of Parliament, is not subject to the jurisdiction of the courts in exercise of those powers (articles 122(2) and 105(3)).

No member of Parliament is liable to any proceedings in any court in of anything said' or any vote given b1 him ih Farliament or any

respect

committee thereof. Also, publication of any report, paper, votes or proceedings of Pariiament by or under authority of a House of Parliament is protected against any court proceedings (articies 105(2) and L9aQ).

luilicial Reoieu anil Due Process: In the British parliamentary system, Parliament is by tradition supposed to be supreme and sovereign. There are no limitations on its powers, at least in theory. inasmuch as there is no written

6

The Citizen and

ludicial Reforms

constitution and the Judiciary has no power of judicial review of legislation. In the U.S. system, the Supreme Court with its power of judicial review and of interpreting the Constitution has assumed supremacy; virfually no limits are recognised on the scope of judicial review and judicial pronouncements on the legality of legislation are final.

In India, the Constitution has atrived at a middle course and

a

compromise between the British sovereignty of Parliament and American judicial supremacy. We are govemed by the rule of law and judicial review of administrative action is an essential part of rule of law. Courts in India are also

endowed with powers of judicial review of legislation. Incorporation of a chapter on ftindamental rights in the Constitution of India makes judicial review specially relevant. Article 12 guarantees fundamental rights against all State action. And, 'State' under this article has been defined to include the Govemment and Parliament of India and the Govemment and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government. But, judicial review in India is conceived by the founding fathers as limited. If an Act of Parliament is set aside by the judiciary as ultra uires or violative of the Constifution, Parliament can re-enact it after removing the defects for which it was set aside. Also, Parliament may, within the limits of its constituent powers, amend the Constitution in such a manner that the law no longer remains ulrconstitutional. The U.S. Constitution (Constitutional Amendments) provides that a man may not be deprived of his right to liberty and property except according to due process of law. The Indian Constitutiory however, lays down that a man may not be deprived of his rights to liberty except according to the procedure established by law. The due process of law gives wide scope to the Supreme Court to grant protection to the rights of its citizens. It can declare laws violative of these rights void not only on substantive grounds of being unlawful, but also on procedural grounds of being unreasonable. Our Supreme Court, while determining the constitutionality of a law, however is expected to examine only the substantive question, 1.e., whether the law is within the powers of the authority concerned or not. It is not expected to go inio the question of its reasonableness, suitability or policy implications. The Supreme Court pronounces its judgment on a specific case through a specific petition. It does not give its opirxion or advice on a general reference. There should be an aggrieved person who petitions the court to challenge the constitutionaiity of the statute which has qdversely affected his rights. He has to show that he has sustained or is in immediate danger of sustaining some direct injury as a result of the enforcement of the statute, and thai the injury complained of is justiciable.

In the Constituent Assembly, there was considerable discussion on the desirability or otherwise of incorporating 1n the Constitution the 'due process of law' clause. The founding fathers, after due deliberatiory decided against adopting the American precedent and opted in favour of the formulation "in accordance with procedure established by law." However, the Supreme Court by its verdicts has practicaily brought the due process clause back into the

ludiciary in Indian Polity

Constitution. This goes against the basic scheme of the Constitution under which judiciary cannot make laws or amend the Constitution through any innovative or creative interpretation. Anti-Defection Laza: The Constitution (52nd Amendment) Act, 19g5 amended articles 101,102,190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and the State Legislatures and added a new schedule (10th Schedule) to the. Constitution setting out certain provisions as to disqualification of members on grounds of defection. The 10th schedule inter ali"a provided that all proceedings in relation to any question as to disqualification of a member of a House under the schedule would be deemed to be proceedings in Parliament within the meaning of article 1.22 or, as the case may be, proceedings in the legislature of a Stati within the meaning of article 722; and nofwithstanding anything in the Constitution, no court will have any jurisdiction in respect of any matter connected with the disqualification of i member of a House. The Anti-Defection Law, has been the subject matter of a controversy from very the beginning. It has been questioned on several grounds, oz. that it is violative of the basic structure of the ConstitutiorL that it is beyond the competence of Parliament, and that it gives preference to expediency over principles. The paragraph which barred the iurisdiction of the courts was struck down as being ultrn oires of thte Constitution by the l{igh Court of punjab and Haryana. When an appeal against this order was preferred, the Supreme Court found that there were legal infirmities in the passage of the Anti-Defection Law inasmuch as the Constitution Amendment Bili had not been ratified by the requisite number of State Assemblies before being presented for the president,s assent. AIso, the Speaker's functions under the l0th Schedule called for a judicial determination of issues under the law and process of determinine the question of disqualification could not be considered part of the proceedin"gs of the House and as such not amenable to iudicial review. The Suoreme Court struck down pata 7 of the Schedule barring the jurisdiction o? courts and declared that while operating under the Anti-Defection Law, the Speaker was in the position of a tribunal and therefore his decisions like of all tiibunals were subject to judicial review. Two other areas in which the judiciary and the legislature have in recent years come into close contact with each other have been the issue of parliamentary privileges and the imposition of President's rule in the States. Pa iamentary Priaileges: Article 105 of the Constitution provides for the powers/ privileges etc. of the Houses of Parliament and of the members and committees thereof. The corresponding article for state Legislature is article 194. The more important of the privileges, namely, freedom of speech in parliament and immuniiy of members from any proceedings in any court of law in respect of anything said or any vote given by them in Parliament, are specified in this article. In other respects, powers and priviieges of each House, its Committees and its members are, in effect, identical to the powers and privileges enjoyed by the British House of Commons as on 26 January, 1950.

The Citizen and

ludicial Reforms

The basic law is that all citizens including members of Parliament should be treated equally before the law. Member$ have the same rights and liberties as

ordinary citizens except when they perform their duties in Parliament. The privileges are available to the members only when and to the extent that they are functioning as representatives of the people in Parliament and discharging their parliamentary responsibilities. The privileges do not, in any way, exempt the members from their normal obligations to society which apply to them as much and perhaps more closely in that capacity, as they apply to others. Also, the purpose of granting to Members certain ptivileges is only to enable the latter to serve the people without any hindrance. Ideal1,v, these shouid never be allowed to degenerate into a conflict between the privileges of Members against the rights of the citizens or against freedom of the press.

It has been held by the Supreme Court in the Searchlight case that the freedom of speech conferred on member$ under article 105 is subject only to those provisions of the Constitution which regulate the procedure of Parliament and to the rules and standing orders of the House, but is free from any restrictions which may be imposed by any law made under article 19(2) upon the freedom of speech of an ordinary citizen. Any investigation outside Parliament in respect of anything said or done by members in the discharge of their parliamentary duties would amourit to a serious interference with the members' rights. Even though a speech dellvered by a member in the house may amount to contempt of court, no action cart be taken against him in any court. A court being an outside authorify, does not have the power to investigate the matter.

The courts of law in India have recoghised that a House of Parliament or a State Legislature is the sole authority to jtrdge as to whether or not there has been a breach of privilege in a particular case. It has also been held that the power of the House to commit for contempt is identical with that of the House of Commons and that a court of law would be incompetent to scrutinise the exercise of that power. The immunity from external influence or interference, however, does not mean an unrestricted licence of speech within the walls of Parliament. It is important to remember that the privileges of the Houses and members and committees thereof are subject to other provisions of the Constitution being construed harmoniously. Thus, for example, the privilege of freedom of speech in Parliament wiil be subject to rules of procedure framed by Houses of Parliament under article 118. Articie 121 forbids discussion in Parliament on the conduct of jtrdgbs except on a motion for their removal (M.5. Shnrmav. Sri Krishna Sinhn, AIR 1959 SC 395).

In 1965, the Supreme Court in its advisory opinion in Special Reference Case of 1964, (Keshaa Singh's case), observed as follows:

"lt would not be correct to read the mhjority decision in the Searchlight case tB laying down a general proposition that whenezter there is a conflict between the proaisions of the latter part of article 194(3) and any of the proaisions of the fundamental rights guaranteed by Part Ill, the latter must yield to the former.

ludiciary in Indian

Polity

9

The majority decision, therefure, must be tnken to haae settled that article 19(1)(a) ztould not apply, and article 21 would.

In dealing with the effect of the proaisions contained in ckruse (3) of nrticle 794, wheneaer it appears that there is a conflict between the said prouisions and the proaisians pertaining to fundamental rights, an attempt will haue to be made to resolae the said conflict by the adoption of the rule of harmonious construction."

The Allahabad High Court, in iheir judgment in Keshaa Slngh's case dated 10 March, 1,965 (i.e. delivered after the advisory opinion of the Supreme Court), observed as follows:-

"i. In our opinion, both upon nuthority and upon a consideration of the releuant proztisions of the Constittttioil, it must be held that the Legislatiae Assembly has, by airtue of article 194(3), the satne pozler to commit for its contempt as the House of Commons has. n. In our opinion, the proaisions of article 22(2) of the Constitution cannot apply to n detention in pursuance of a conaiction and imposition of a sentence of imprisonmrnt by competent authority. TII.

Since we hazte already held that the Legislatiae Assembly has the power to commit the petitioner for its contempt nnd since the Legislatiae Assembly has framed rules for the procedure nnd conduct of its business under article 208(1), the commitment and dEriantion of the perconal liberty of the petitioner cannot but be held to be according to the procedure laid down by law within the meaning of article 21 of the Conbtitution.

ia.

Once we come to the conclusion that the Legislatiae Assembly has the power and jurisdiction to commit for its contempt and to impose the sentence passed on the petitioner, Toe cannot go into the question of correctness, propriety or legality of the commitment. This court cannot, in a petition under.article 226 of the Constitution, sit in appeal ooer the d.ecision of the Legislntiae Assembly committing the petitioner for its contempt. The Legislatizte Assembly is the master of its own procedure and is the sole judge of the qttestion zahether its contempt has been committed or not."

The Government,

therefore; -

decided that an amendment

of

the

Constitution was not necessary. It was of the opinion that the Legislatures and the Judiciary would develop their own conventions in the light of the opinion given by the Supreme Court and judgment pronounced by the Allahabad High Court. It may, therefore, be seen that the judgment of the Supreme Court in the Searchlight case is final till today insofar as matters of privitege are concerned.

Article 105(3) of the Constitution stipulates that, apart from the privileges mentioned in the Constitution itself, Parliament may, from time to time, define its privileges by law. No law, however, has so far been enacted by Parliament in plrrslrance of this provision to define the powers, privileges and immunities of

each House and its members and the committees thereof. As far as the constitutional stipulation "until defined by Parliament by law', and the question of defining or codifying the parliamentary privileges are concemed,

10

The Citizen and Judicinl Reforms

opinions are divided. It is, however, clear that the Constitution makers did envisage codification of privileges by law and Parliament has been avoiding doing so to avoid being subjected to judicial review and scrutiny. The Press and the citizens would nahrrally like to have greater transparency and to know that what precisely are the privileges. For this, earlier these are codified the betier. The National Commission to Review the Working of the Constitution (NCRWC) has made the following observations and recommendations in regard to pa rliamentary

privileges:-

"'Ihe prioileges of legislators should be defined and delimited for the free and indepmdmt functioning of Parliament and State Legislatures. lt should not be necessary to run to the 1950 position in the House of Commons eoery time a question arises as to what kind of leg;4tl protection or immunity a Member has ,rn relation to his or her work in the House." "The law of immunity of members under the parliamentary priailege law was tested in P.V. Narsimha Rao o. State (CBI/SPE), (AIR 1998 5C2120).The substance of the charge was that certnin members of Parliament had conspired

to bribe certain other members to aote against a no-confidence motion in Parliament, By a majority decision the cotrt arriaed at the conclusion that while bribe-giaers, who were members of Parliament, could not claim immunity under nrticle 105, the btibe-takers, also members of Parliament, could claim such immunity if they hnd actually spoken or uoted in the House in the manner indicated by the bribe-giaers. It is obaious that this interpretation of the immunity of members of Parliament runs counter to all notions of justice, fair play and good conduct expected ftom members of Parliament. Freedom of speech inside the House cannot be used by them to solicit or to accept bribes, which is an offence under the criminal law of the country. The decision of the court in the aforesaid cnse makes it necessary to clarfu the true intent of the Constitution. To maintain the dignity, honour and respect of Parliament and its members, it is essentinl to put it beyond doubt that the protection against legal action under article'l-05 does not extend to corrupt acts.

A

second bsue that was raised in this case concerned the authority competent to sanction prosecution against a mentber in respect of nn oJfence inuolaing acceptance of a consideration for spenking or uoting in a particular manner or for not aoting in either House of Parliament. A Member of Parlinment is not appointed by any authority. He is elected by his or her constituency or by the State Assembly and takes his or har seat on taking onth prescribed by the Constitution. While functioning as a Member he or she is subject to the disciplinary control of the presiding officer in respect of functions within the Parliament or in its Committees. It would, therefore, stand to reason that snnction for proseaiion should be giaen by the Speaker or the Chairman, as the case may be.

The Commission recommends thnt nrticle L05(2) may be amended to claify that the immunity enjoyed by Members of Parliament under parliamentary prioileges does not coaer corrupt acts committed by them in connectian with

f.Ldiciary in Indian Polity

11

their duties in the House or othenuise. Corrupt ncts would include accepting money or any other ztaluable consideration to speak and/or aote in a pnrticular manner. For such acts they would be liable for action under the ordinary law of the land. It may be further proaided that no court wiII take cognisance of any ffince arising out of a Member's action in the House without prior sanction of the Speaker or the Chairman, as the case may be. Artide 194{D may also ie similarly amended in relation to the Members of the State kgislatures.,,

Imposition of President's Rzle: Under article 356. if the president is satisfied that Govemment of a State cannot be carried on in accordance with the Constitution, he may issue a Proclamation taking over any of the functions and powers of the State Govemment. The powers of the State Legislatures may under the Proclamation become exercisable by or on the authority of parliament. The State Assembly may be dissolved or kept under suspended animation. The President may take all other steps that may be necessary including suspension of the operation of any constifutional provision relating to anybody or authority in the State except the High Courts. Every Proclamation must cease to operate at the expiry of two months unless approved by resoiution of the two Houses. After Parliament's approval also, a Proclamation may continue for not more than six months at a time and not for more than a total of three vears. But. extension beyond one year is not possible even by a resolution

Houses

of th"

tuuo

of Parliament except during the operation of a Proclamation of

Emergency and when elections to the Assembly cannot be held (article 356(5)).

Article 356 has been one of the most criticised and controversial provisions of the Constitution. Under this provision, State Govemments have been taken over on rnore than 100 occasions during the last 52 years l.e. on an average involving more than two States each year. Opposition members and critics have said that the article has been misused, more often than not, for political and partisan purposes by the party in power at the Union levef

to dismiss State Governments of parties in oppositioni !n the Constituent Assembly, while replying to the critics of this prpvi3ion, Dr. Ambedkar had expressed the hope that it might remain a dead letter and might never be used except as a last resort, after everything else failed. In State of Rajnsthan v. Union of India (AIR 7977 SC 1361) the Supreme Court held that a Proclamation under 356 depended on the subjective satisfaction of the President and the Court could not substitute its own satisfaction for ihat of the President nor could it, in view of article 74(2), enquire into the advice given to the President by the Council of Ministers. The court, however, significantly added that if the satisfaction of the President was mala fide, based on extraneous or irrelevant considerations or no satisfaction at all it could interfere. Thus, exercise of President's power under article 3!6 was brought under iudicial review to that extent. usually

In the Bommai case, the Supreme Court stressed the desirability of the question of the majority support of the govemment being settted on the floor of the House. This had also been emphasised by the Sarkaria Commission. An interesting case in this matter to go before the courts was that of the ,,fresh,,

1.2

The Citizen and

ludicial Reforms

proclamation of 17 October, 1996 "reimposing" President's rule over U.P. The Division Bench of the Allahabad High Court in their judgment of 19 December, 1996 even after taking note of the fact that proclamation had been approved by the two Houses of the Parliament quashed it as ultra ulres the Constitution. Much before the judgment came, thre present writer had written that since one year of President's rule was cdmpleted on 17 October, 1.996, no p{otlamation of emergency was in operafion and elections had just been held, it whs constitutionally impermissible to extend President's rule further without amending the Constitution for the purpose. What even Parliament was barred from doing, couid certalnly not be done by the Government by giving it a different name of "reimposition" or of "fresh" promulgation of President's rule under article 356. The court upheld this position. As Justice Lal put it, whatever the subterfuge of a so-called new situation having arisen to justify reimposition of President's rule, the fact was that President's rule was being continued illegaliy and "thus what cannot be done even by the Parliament (continuance beyond one year) has in effect been done by His Excellency Hon'ble the President of India in the form of a fresh Proclamation. For no fraction of time there was a break. The State of Uttar Pradesh continues to be under President's rule with effect from 18.10.1995 till date without any break. hr substance and effect, it is continuation of earlier Proclamation... Impugned Proclamation was not capable of being considered by the Parliament because even the Parliament could not have passed a resolution in the absence of two conditions enumerated in clause (5) of article 356.... in

form there may be two separate Proclamations but in substance it was continuation of the President's rule bevorrd one vear which is expresslv barred and prohibited under clause (5) of arHie 356 itseif."

Secondly, the present writer had expressed the view that since the Constihrtion provides that there "shall" be a Council of Ministers, under articles 163 and 164, it was the Governor's constitutional obligation to constitute a popular Government after the completion of the electoral process and the Government so appointed would have been responsible to the Assembly and not to the Governor. If the Govemor found it difficult to decide on whom to call to form the Govemment, he could take regourse to article 175 (2), send a message to the House to elect its ieader who could then be appointed as the Chief Minister. This was also the very categorical pronouncement of their Lordships of the Allahabad High Court. Justice Lal said that the term 'Government' used in article 356 (1\ " rcfers" to elected govemment and, not the President's rule". Clause (1) of Article 163 uses the word 'shall'. "The word 'shalf indicates mandatory sense. Therefore, it

is not the discretion of the Govemor to appoint or not to appoint a Chief Minister. Constitutionally he is bound to appoint a Chief Minister. Here his discretion is limited to choose the Chief Minister if no party has clear majority. But it is not open for the Govemor to say that he will not appoint a Chief Minister... political justice can only be extended at this juncture to the electorate through their representatives by adhering to the provisions of articles 174 & 175

ludiciary in lndian

Polity

t3

of the Constitution". His lordship bemoaned how the great patriotic people of Uttar Pradesh had been "unconstitutionally deprived of their right of forming a democratic Govemment." He saw no reason why the Govemor could not invoke articles 174 & 175 and ask the members of the Legislative Assembly to indicate the name of the leader in whom they had confidence so that the same person could be appointed Chief Minister. Justice Kumar also forcefully asserted the view that there was nothing wrong in the Govemor asking the elected members to choose on the floor of the House a person to lead them as the Chief Minister. In fact, he said this would be most democratic and constitutional. The third judge on the Bench, Justice Ka$u observed that "it is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly". His Lordship went a step further when he held that in the prevailing situation in U.P., the Legislative Assembly not only could meet but also had to meet to decide in whom it had confidence. He added: "the Governor did have an option, that is, to summon the House under article 174 and to send a message to it under article 175(2) informing the House that he was unable to find someone who in his opinion, was likeiy to have the confidence of the House, and therefore the House itself should inform him about the person in whom it has confidence. On receiving information from the House, he should have appointed such a person." These developments are being recounted for their possible relevance to what happened in U.P. recently when after the last general elections to the U.P. Assembly, Governor Shastri, instead of appointing a Chief Minister, recommended President's rule which remained in operation until bargaining between parties culminated in a BJP - BSP coalition arrangement.

In this connectiory the Nationai Commission to Review the Working of the Constitution has made the following significant recommendation: "ln the considered ztiew of the Commission, it should be possible without any constittrtional amntdment to prouide for the election of the kader of the House (Lok Sabha/State Assembly) along with the election of the Speaker and in like manner under the rules of Procedure. The person so elected may be appointed the Prime Minister /Chief Mitrister." So far as article 356 is concerned, there is another matter in which enough attention does not seem to have been paid either by the Govemment or by the Judiciary and that concerns its reading with other relevant articles of the Constitution. As stated by the present writer elsewhere (Our Constitution, S'd Ed. 2001,p.278):

"It is importani that.article 356 is read with articles 355,256,257,353 and 365. This is usually not done. Insofar as nrticle 355 speak of the duty of the Union to ensure that goaernment of eoery state is carried on in accordance utith the prouisions of the Constitution, it is obaious that article 356 is not the only one to take care of n situation of failure of constitutional machinery. The Union can also act under article 355 i.e. without imposing President's rule in matter

t4

The Citizen and

ludicial Reforms

of 'external aggression' or 'internal disturbance' . Article 355 can stand on its own. Also, Union Goaernment cnn islue certain directions under articles 255. 257 and 353.

It is true that article 356 clearly authorises the President to issue a proclamation imposing President's r*le ooer a State if he is satisfted that a situation has arisen in which the Goaernment of the State cannot be canied on in accordance with the proaisions of this Constitution but a question may be asked when can the President Inu:fully hold that such a situation has actually arisen. A uery specific and categorical answu is contained in article J6S when it

says that where a State

fails to comply with Union directions (under nrticles

256, 257 ard others) "it shall be Inwful for the president to hold thnt a situation has arisen in which the Goaernment of the State cannot be carried on in accordance with the proaisions of this Constitution" . h is unfortunate that before rushing to issue a proclamation under article 356, no ffirt appeared to haae been made to ensure that (i) the Union had done nll that it could in discharge of its dLlty under article 355 and (ii) that the State had ,,failed to comply with, or gioe efect to" those directions. It seems in many cases recourse to 356 has been taken without keeping other prouisions in uiew." The National Commission to Review the Working of the Constitution fully endores this position and in fact substantially reproduces the above formulation only (para 8.15.2). Independence of the luiliciary: Among the noble aims and objectives of the Constitution, the Preamble accords the higfrest place to Justice. All the organs of the State are enjoined to secure to ail citiiens "Justice - sociai, economic and political". In a representative democracy, adminislration of justice assumes special significance in view of the rights of individuals which need protection against executive or iegislative interference. This protection is given by making the judiciary independent of the other trwo organs of the government and supreme in its own sphere. The Constifution attaches great value to the

independence of the judiciary which is essential to rule of law and constitutionalism and for the effective functioning of judicial administration. An independent judiciary is also an essential requisite of a federal polity, wherein there is a constitutional division of powers between the federal government and ernments of the constituent units and a functional division of powers een the executive, legislature and judiciary. Also, an independent and judiciary is an essential requisite for ensuring human rights and rotectint democracy. Only an independent judiciary can act effectively as the uardian of the rights of the individual and that of the Constitution. There are y devices in the Indian Constitution which ensure the independence of the for example, the constitutional provisions in.regard to the appointment removal noval of judges, securitv of of tenure,, salaries and service conditions_ iudges, security conditions, and allowances of judges being a charge on the Consolidated Fund, uitment and appointment of their own staff by the Supreme Court, debarring judges of the Supreme Court from practising before any Court in India after t, the power to punish for contenirpt etc. But, even judiciary has to act its constitutionally ordained domain and within the limits of its

ludiciary in lndian Polity

15

jurisdiction' Judges also are not above the law. Rule of law and laws of the land apply to them as to any other citizen. If anything they have added responsibilities because of the position they occupy and they are also fully accountabie to the people for what they do or do not do. ludicial Actioism and P.I.L,: \4/hat came to be called ,,Judiciat Activism,, was bom as a corrective to inaction or failure of the executive and the leeislature to provide clean, competent and citizen-friendly governance. In the historic judgment in the Judges' Transfer case, the seven-judge Consdfution Bench of the supreme Court held that any member of the public even if not directly involved but having "sufficient interest" can approach the High Court under article 226, or in case of breach of fundamental rights the supreme court, for redressal of the grievances of the persons who cannot move the court because of ,,poverty, helplessness or disability or socially or economically disadvai.rtaged position,. The court can be approached even through a letter in such a case (S.p Gupta v. President of lndia, AIR 1982 SC 149). After this judgment, it has been open to public-minded individual citizens or social organizations to seek judicial relief in the interest of the general public.

In Bandhun Mukti Morchn v. Union of Indin, AIR 1984 SC 803, an organisation dedicated to the cause of release of bonded labourers informed the Supreme Court through a letter that they conducted a survey of the stone quarries situated in Faridabad District of Haryana and found that there were a

large number of labourers working in such quarries under ,,inhuman and intolerable conditions" and many of them were bonded labourers. The petitioners entreated that a writ be issued for proper implementaiion of the various provisions of the Constitution and Statutes with a view to ending the misery, suffering and helplessness of those labourers. The court treated the letter as a writ petition and appointed a Commission consisting of two advocates to visit these stone quarries, make an enquiry and report to the court on the matter. ln htkshmi Knnt Pandey a. Union of India, a writ petition was filed on the basis of a letter complaining malpractices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children to foreign parents. It was alleged that in the guise of adoptiory children of tender age were not only being exposed to a long dreadful joumey to distant countries at great risk to their lives but also to uncertainty as to their shelter and future. Chief Justice P.N. Bhagwati laid down certain principles and norms to ensure the welfare of the children and directed the Government and various agencies dealing with the matter to follow them (1987) ISCC 667. In recent years, the Supreme Court has issued directions to control pollutiory to check the evil of child prostitutiory to revive a sick company to protect the livelihood of 10,000 employees, to look into the danger to safety in building a dam, to segregate the children of prostitutes from their motheri, to provide insurance to workers in match factories, to protect the Tai Mahal from environmenral pollution etc. (Subhash v. State of Bihai, AIR 1991 SC 420; V ishal v. Union of lndia, (1990) 3 SCC 318; Workers of Rohtas lndustries Ltd. v. Rohtag Industries Ltd., AIR 1990 SC 491;TehriBaandiv. State of Llttar pradesh, (1991) 1-

16

The Citizen and

ludicial Reforms

UJSC 121; Gaurnrslainv.lfnionof lndia,,A.IR1990 5C292;Mehtav.Stateof Tamil Nndn, AIR 1991 SC 417; M.C. Mehta v. IJnion of lndia, AIR 1997 SC 734)' However, it has been held that non-jtrsticiable political matters cannot be brought before the court under the guise of public interest lltigation (Maharshi v.

All 52). I;ocus standi to file a petition depends on journalist may file a writ petition if the case falls in the facts as they exist. Even a the category of public interest litigation. On the other hand, if personal interest litigation is sought to be fought as public interest litigation, person instituting such litigation may be made to pay the costs. The court should not allow an unscrupulous person to vindicate his personal grudge in the gatb of public interest. (Rugmani v. Achutha, AIR 1991 SC 983; Bholanath v. State of Uttar Pradesh, (1990) Supp SCC 151; Subhash v. State of Bihar, AIR 1991 SC 420; Chhetriya Pradushan v. State of Tamil Nadu, AIR 1991 SC 4I7; Chhetriya Samiti v. State of State of Llttar Pradesh, AIR 1990

Uttar Pradesh, (1991) I SCI 130). Thus, the irrnovative judicial aPproach to "Public Interest LitiSation" came handy in case of acute social injustice, economic exploitation, denial of human rights, corruption and other offences against public interest. Even hyperactivism of judiciary was justified under the powers of judicial review. It drew its strength, relevance and legitimacy from the support it elicited from the people because of their total disenchantment with the other organs of the State run by the politicians and the bureaucrats. But, the scenario has since changed. People are beginning to lose faith in the Judicialy as well. Judiciary also can no more be said to be entirely free from maladies of corruptiory inefficiency and misuse of authority that afflict other organs of the $tate. Recently, the Chief justice of India himself publicly stated that upto 20 per cent of the judges in the country were corrupt and brought the entire judiciary into disrepute.

It has come to be believed widely that in the name of public interest, judiciary has begun to invade the exclusive legislative and executive domains, to exceed its legitimate jurisdictional limits and arrogate to itself more Powers than what the founding fathers gave. Questions are sometimes raised about the practical viability, feasibility and implerlrentability of some of the court verdicts. Fears are expressed of the courts befurg misused for vested political group interests and of the courts giving in to populism , ctaze for publicity and hogging headlines, overstepping the lirnits of judicial discretiory not exercising the essential judicial restraint and causing judicial excesses. Reading into the Constitution whht is non est and in effect legislating or even making the Constitution e.g. in thE matter of the appointment of judges,

misinterpreting parliamentary privileges and immunities in the JMM bribery case and allowing protection to MPs taklng bribe of crores for casfing their vote, holding even truth not to be a defence in contempt of court cases, laying down public policy or issuing executive ordels to public bodies and State authorities in different areas. ln any case, judicial activism cannot be a solution of our problems. At best it can act as a te lporary measure or as an emerSency medication inasmuch as the Judiciary cannot take over the functions of either the executive or the legislature.

Judiciary in Indian

Polity

L7

The judiciary would do well to. remember that in the ultimate analysis orders of the couits have also to be given effect to only by the administralion which functions under the political executive. fudiciaryhas to be very cautious and must ensure that a situation is not reached where its orders or directives are no more ftrlly respected or obeyed or are found to be just unimplementable. The courts must also see that in the name of public interest litigatiory false, frivolous, fraudulent or private interest motivated issues are not entertained.

Contewpt of Cozrf; A sensitive and controversial issue is that of the power

of the courts to punish for their contempt. Articles I29 and 215 ;f fte

Constitution provide for the supreme Court and the High Courts being courts of record and having all the powers of such courts including the power to punish for their own contempt. The Contempt of Courts Act, I97I has codified ihe la* in the matter. Contempt may be defined to mean wilful disobedience of the court,

in any manner lowering the authority of the court or interfering with or obstructing the administration of justice. It does not inhibit genuine and weilintentioned criticism of courts or their functioning. Also, fair and reasonable criticism of a judicial act in the interest of public good cannot constitute contempt.

However, the law as it has emerged from judicial decisions does not allow even truth to be a valid defence against charge of contempi of court. Also, the courts have sought to make a distinction between criticism made by a former

judge and law minister which may be permissible and criticism by other citizens which must be "checked". This is anti-democratic and violativb of the freedom of expressiory right to equality and non-discrimination clauses. It is necessary that the contempt law and more particularly the exercise of powers under it are reviewed objectively and in an ordinary-citizen-fiiendly percpective. The Constitution Commission (NCRWC) has suggested that it may be laid

"it shall open to the court on of the plea and of the requirements of public interest fdes

down by constitutional amendment that satisfaction of the

bona

to permit a defence of justification by truth." The Commission has also

suggested that no court other than the Supreme Court and the High Courts should be allowed to exercise any power to punish for contempt of itself.

Appoifltffient of judges: Arbilrary power in any hands is bad. Some checks and balances are therefore embedded in the scheme and text of the Constitution.

As stated earlier, there are serious limitations on the legislative powers of Parliament as well as on the Supreme Court's power of judiciil review. Unchecked by the other, either of them may go wrong. After alf the judges come from the same social milieu as ministers and legislators. They too are human, all-too-human. Also, it needs to be remembered that the Constitution is what it is. It is not what the Parliament or the Supreme Court may say from time to time it is or what either of them may wish it to be. parliament, within certain parameters, has the power to amend the Constifution. But, as the Supreme Court has held, the amending power under article 368 is essentially a limited power only to amend and carurot extend to abrogating or annulling tire Constituiion or

18

The Citizen and ludicial Reforms

to violating its basic structure or featurres. Similarly, whenever it becomes necessary to adjudicate in any dispute before it or when its advice is sought under Article 143 of the Constitution, the Supreme Court has the power to interpret the Constitution. But, the power to interpret also has natural limitations. It is power only to interpret. It cannot extend to changing or amending the Constitution. In the garb of interpreting the provisions of the Constitution, it cannot rewrite the Constitution. The effort would appear to be more glaring if it concerns the court itself or matters like the appointment of judges themselves. Under article 124(2), the Supreme Court judges were to be appointed by the President "after consultation with such of the judges of the Supreme Court and of the High Courts as the President ma)4 deem necessary." The proviso to the article said that "in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted." The only obligation for the Govemment was to consult the Chief Justice and other judges. Significantly, the appointment was not required to be made "in consultation" but only "after consultation". In actual practice, after receiving the opinion of

the Chief Justice, the Cabinet deliberated on the matter and advised the President in regard to persons to be appointed. The President acted on the advice. In case of the Chief Justice, the senior-most judge was usually appointed.

The convention, however, was ignored when in the '70s, a couple of Chief Justices were appointed superseding their more senior colleagues. In the S.P. Cuptav. Union of India case, (1982) the court held that the consultation must be effective and involve exchange of views and examination of merits but it did not mean concurrence and ultimately the executive had the last word in the matter. It is known that when the executive enjoyed a decislve voice in the matter of appointment of judges, the system worked most satisfactorily for several decades. However, later some appointments were made on considerations other than merit and seniority. Political, partisan and other extraneous factors were said to have determined some selections. The question was considered by a nine-judge Bench in Supreme Court Aduecates-on-Record Associntion v. Unian of

Indk, (1993). Gupta's case was overruled. Mr. justice Verma, delivering the majority judgment, stressed the constitutional purpose of selecting the best available persons as judges. The result of the landmark judgment was that the wings of the political executive were clipped and its powers curbed. The appointments had still to be made by the President on the advice of the Council of Ministers. But the Chief Justice, in consultation with other senior judges was supposed to be in the best position to decide upon the best persons to don the Bench. \ /hile the executive could exercise the necessary check before forwarding the advice to the President, it was not elpected to substitute its own judgment for that of the CJ in regard to the suitability of those to be appointed. Thus, the Supreme Court practically took over the power of appointment of judges in its own hands, nohvithstanding the clear words in article 124(2) of the Constitution. As a safeguard, it mandated the Chief Justice associating two of his senior-most colleagues in the selection process. The procedure for appointment was revised in the light of this judgment in 1994 to the effect that

ludiciary in Indian

Polity

19

the decisive view in the matter of the appointment of judges shall be that of the Chief Justice of India and in case of a vicancy in the oific;f the Chief Justice of India, the.senior-most judge shall be appoinied unless the retiring Chilf Justice reported that he was unfit.

.

P"t then, the pendulum of misuse of discretionary powers could swing to

the other extreme. The Chief Justice could recommend naires without consuling his senior brother judges. when there was intense lobbying on who *e.e thE

most deserving to be appointed and certain names were suggested which seemed to violate the norms set by the supreme court itself in regard to seniority and merit of the recommendees and the need to consult senior brother judges, the executive,had to step in again. Instead of clearing the names of pers'ons recommended for appointment, the President (as advised by the council of Ministers) made a reference to the supreme Court under artiile 143 to seek its opinion. The reference did not question the Verma judgment. The nine-judge advisory opinion of 28 october, 1998 only reaffirmed the basic guidelines givJn there. some clarifications and safeguards were provided. The Chief Justice had to consult four senior most judges of the supreme court and if two of the four disagreed on some name, it could not be recommended. kr effect, decisions were to be taken by consensus whereunder the chief Justice and at least three of the other four must agree.

In the meantime, one Chief Justice retired and another .took over. Fresh recommendations were made and accepted. While clearing the latest recommendations for the appointment of four judges, the piesident was reported to have suggested giving "due consideration,, to ,,persons belonging to the weaker sections of society like the SCs and STs,, and ,,*o-e.,,,. He reportedly added that "eligible persons from the SC/ST categories are available." This unleashed a media furore. All sorts of hidden meanings were sought to be given to the President's remarks. A serious conflict oi views between the Council of Ministers and the President or between the Chief Justice and the President was talked about and some went so far as to allege that the President was insisting on a quota 9r reservation for the SCs/STs in the appointment of judges and for that reason appointments were being delayed. It would be seen that the President was saying nothing contrary to the Constitution or the Supreme Court's own judgments. In fact, it was also in consonance with the actual practice generally followed in the process of appointments to the High Courts and the apex court. In the 1993 Judgment, Mr. Justice Verma himself categoricaliy spoke of the need for giving representation to "aII sections of the people and ftom all parts of the country" in keeping with the norms of seniority and merit. The President echoed the same principles..when he said at a seminar that "it is a matter of importance that all themajoi regioru and sections of society are represented" in the judiciary ,,consistent with the requirements of merit.

"

The fact is that so far neither the Executive nor the iudiciarv have come out

of the controversies entireiy above

reproach and free from blemish of indiscretion and worse. whether the final say was left with the Executive or with the Judiciary, neither has succeeded fully.

20

The Citizen and Judicial Reforms

So far as appointrnent of judges to the Supreme Court and the High Courts

are concerned, the present arrangement iS definitely not satisfactoly. There are many who argue - and not entirely withoirt justification - that the selection and appointment of judges should have continued to remain an executive act without any involvement of the Chief Jusfice or other judges beyond the right to be consulted.

Controversies in matters connectedl with the appointment of judges are fraught with grave consequences for the health of a polity that prides itself in being founded on constitutionalism, the mle of law and the independence of the judiciary. Also, insiitutions like the Presidency and the Supreme Court and high functionaries such as the President and the Chief Justice of the Supreme Court ideally should always remain above conflictual and confrontational discourses and disputes. That independence of the jrtrdiciary and people's faith therein are not allowed to be eroded in any way is as much the responsibility of the President and the Council of Ministers als of the Chief Justice of the Supreme Court and other judges. Also, it is in the self-interest of both the executive and the judiciary to zealously guard and preserve the estabiished norms. To resolve problems in the area of appointment of judges, some persons including the present writer, have been suggesting for several years the device of a National Judicial Commission. But, its success and credibility would inevitably depend upon its composition and upon the judiciary giving up the unbecoming scramble for primacy and supremacy in the matter of selection and appointment of judges.

In the matter of appointment of judges, it should be possible to draw the best from the Bar to the Bench. If necegsary, it may be made obligatory on members of the Bar not to refuse a judicial appointment. Before taking office, all appointees to judicial office need to be provided with intensive training and orientation for the job. Also, later in their career, periodic orientation and intensive training camps and refreshel courses would be most desirable. Incidentally, the lawyers also need periodic professional reorientation, training and refresher programmes.

The Constitution Commission (NCRWC) Report submitted

to

the

Government on 31 March this year has a chapter on judiciary. As a Note appended to the Report by the present wdter in his capacity as a Member of the Commission and as Chairman of its Drafting and Editorial Comrnittee states: "This chapter particularly is seriously flawed and distorted. The much needed ludicial Reform issues haoe not been eaen touched or these got deleted in the final draft. ln matters like appointrnent of judges, the approach in the final chapter is henaily and unconstitulionally weighed in faaour of the judges themselztes selecting their own colleagues thereby striking at the legitimate powers of the Executiue and the Parl:iament and dbturbing the delicate balance

in

the

polity."

The Report of the Drafting and Editorial Committee which

was

unanimous in all matters, inter alin, contai,rred the following useful observations:

Ittdiciary in Indian

Polity

Z:l

"The Commission took into account the consultation paper, the responses president of lndia and theleto and the oiats of eminent persons like the former

some of the former Chief Justices of India including the one who diliaered the majority judgment in the second judges case. When the matter came to be

discusscd before the commission, diaergent ztiews were adaanced nnd cited. C.ll. (lustice E.S. Venkntaramaiah), the interpretation placed by the majority of judges on article 124, the "text of the Constitution seems to haoe been departed from. ........ The interpretation now gitten neutralises the position of the president and mnkes article 74 which requires the President to act on the aid and adaice of the Council of Ministers irreleztant. . . . . . .. The construction now placed by thb court makes the Supreme Court and the High Courts totnlly undemocratic. While in a parliamintary democracy the President may be a mere constitutional head when the power is exercised by him on the adaice of the Council of Ministers he cannot be asked to play the same limited role where the Chief lustice of India who is not an elected representatiue adztises him. One cannot ignore that this may lend on a future occasion to tyranny in another unexpected place... The new meaning given by the Supreme Court appears to be beyond the scope of mere interpretation an'd airtually amounts to re-writing the releannt constitutionnl proztisions. . . . . .', .*

According to one former

in

"

Obaiously there has been some rethinking on the subject. A former C.l.l. ].5. Vermn) seemed to haae reaised his opinion and faaoured "a reaiew" in the light of the experience after the aerdict in ifte Second Judges,

(lustice

case inasmuch he came to adaocate that the intent of the Constitution was not to ac,cord "primacy to either" the judiciary or the executioe, the ,,responsibility,,

of both was " to

find the most suitable person for appointment" and this could a "National ludicial Commission, representing aII wings, the Vice President/ Prime Ministei Chief lustice $ India' .""

best be done by headed by

"The ludicinry, the Legislature and the Executiae are the teatures of the Constitution and it is the Constitution, uthich is supreme. The Constitution is what it says and there should not be any attempt to alter it b! an interpretatizte process by any of the limbs of the stnte. power to interpret or declare the law does not include any power to change or make the law. It is a fortiori when a question arises as to in which of the limbs, the Constitutian has oested the power of appointmant. When it inoolaes questions as to whether thz power is in the Judiciary or Legislature or Executiae, the Supreme Court's approach has to

in the following manner as obseroed by the Supreme Court ln Re Special Reference 1 ol 1,964 t1965(1) SCR 413 at 4461 "... Legislators, Miiisters and Judges aII take oath of allegiance to the Constitution for it is by the releoant proaisians of the Constitution that they deriae their authorifu and jurisdiction and it is to the proaisions of the Constitution that they owe be

E.S. Venkataramaih, The Working of Indian Democratic polity An Appraisal, Dr. Zakir Hussain Educational & cultural Foundation and Indian Institute of public

Administration, New Delhi.

Verma, The Judiciary and Judicial Reform s in political Reforms: Asserting Cioic Soaereignty, Konark, New Delhi 2001. pp.i45-180.

J.S.

22

The Citizen and Judicial Reforms

allegiance.........". AIso, it was noted that thete is no country whose constitution proaides for ztesting the power of aryointment of judges of ntperior courts in the judiciary itself. In this context, there was a general consensus in the Commission on tlv desirability of suggesting the mechanism of the Natianal Judicinl Commission to msure that the power of aryointuent of judges was not exercised arbitrarily either by the executizte or the iudicinry." Attention is also invited to the decision taken by the Commission at its 14th Meeting held on 14-18 December,2001. Para 16 of the minutes records

that"There shall be a National ludicial Commission for making recommendation as to the appointment of a ludge of the Supreme Court (other than the Chief Justice of

lndiil, a Chief lustice

of a High Court nnd n ludge of any High

Court." "The composition of the National ludicinl C.ommission would

be as

under:

(a) The Vice-President of Indin

(b) The Chief lustice of lndin (c) Two senior-most ludges of the Suprane Conrt, next to the Chief lustice

I

(d) The Unian Minister for l-aw lustice." "The National ludicial Commission shall meet as a round table. While meeting for making recommendation as to the appointment of a ludge of a High Court, the Chief lustice of the concern d HiCh Court shnll also be associated as a Member of the Commission." "

Proposals

for appointment of ludgu should originate either ftom the Chief

lustice of lndin or the Chief lustice of a High Court, as the case may be."

"The retirement age of High Court and Supreme Court ludges should be uniform and it can be 65 years." "The retired judges should not

nppointed to any paid appointment under for post-retiremmt non-paid assignments, it is recommended thnt, to eliminate roorn for irreleuant considerations, it would be approprinte to proaide ns n matter of law that where a retired ludge is sought to be

the Goaernment. Howmer, eom

be appointed to

n

Tribunal/Commission

or similar other body, such

appointment should be made in consultation with the concerned Chief lustice.

ln

the case of appointment of a retired ludge/Chief lustice of the Supreme Court, the Chief lustice of India will be consulted and in the case of appointment of a judge/Chi{ Iustice of the High Court, the Chief lustice of that Court should be mnsulted. $uch a course would help in eliminating irreleuant considerations and utould also facilitnte appointment of approprinte persons to these bodies."

"As regards the transfer of ludges, it should be as a matter of policy and the power under article 222 and its exercise in approprinte cases should remain untouched. The President would trnnsfer a Judge from one High Court to any other High Court after consultation with a committee comprising the Chief lustice of Indin and the hao senior-rtuost ]udges of the Supreme Court."

ludicinry in Indian

Polity

23

_ Many of these recommendations unanimously agreed by the Commission after due deliberation and incorporated in the again unanimous report of the Drafting and Editorial committee were at the rastitage someho* re.riewed and either diluted or dropped e.g. in the matter of pos-t-retirement paid jobs for judges, age of retirement for the H.C. and s.c. Judges and the composition of the Na tional J ud icial Commission Remooal of ludges; Every judge of the supreme Court hords office until the age of 65 years. A judge may be removed from his office only by an order of the President passed after an address by each House of parliarneni for his removal

"on the ground of misbehaviour or incapacity,, supported by a majority of the total membership of that House and by a majority of not less-than two-tirirds of the members present and voting is presented to him in the same session. The procedure may be regulated by parliament by law (article r24). ln the case of Justice Ramaswamy, motion for presenting an address to the president for his removal had failed to get the required majority in Lok Sabha. Contrary to the common belief, there is no proaision in our Constitution for the impeachment of n judge. The impeachment is proaided the president and none else. for

Also, there is a fundamental difference between removal procedure and

impeachment procedure and between the impact of the adoptionof a motion for

impeachment and the passing of a motion for presenting an address to the President seeking orders for the removal of a judge. The grounds for the impeachment of the President have to concern 'violition of tI-re Constitution,

while an address for removal of a judge has to be on the ground of

"misbehaviour or incapacity". In case of impeachment, the moment lhe motion is passed by the two Houses, the President forthwith ceases to be the president. But in case of the motion for removal, it is for the president to consider issuing

necessary orders or advise reconsideration etc.

The Report of the Constitution Commission (NCRWC) suggests a new mechanism to.examine complaints of deviant behaviour of Ji kinds and complaints of misbehaviour and incapacity against judges of the supreme Court and the High Courts. [see Annexure, para-21.-

Identification of other problem Areas: Many of our laws, judicial

procedures and processes, practices and rifuals are too old, antiquated and outright colonial hangovers to be relevant or effective today. Thus, we continue judges as "your Lordship,, and the lower courts as ,,your to address -the The long summer vacations which enabled the British judges to visit !onoyr". their homes in u.K., still continue. As stated by the Law Minister in Far[ament i::"."try, the Supreme Court remained closed tor 222 days in a year and the High courts for 21'0 days. Thus, for more than seven months each vear the j"9g:.r holidays, the leave admissible on various counts being in addition."1"_.9i Mild attempts to modify or restrict the holidays and increase woriing days for courts have failed. while the govemments seem to favour the changJ the courts are opposed.

. In addition to _long holidays that cause delays in dispensation of quick and smooth justice, frivolous litigation and the frequent striies by the lawyers

24

The Citizen and

ludicial Reforms

also disrupt the work of courts and calrse harassment to the law-abiding citizens. Citizens who ever had the misforfune of coming into contact with courts of law to seek justice invariably have many tales of diverse woes and worries. Things have come to such a pass that the ordinary law abiding citizens are afraid of approaching the police and the courts for seeking justice'

A

matter causin! the greatest concem

is that of judicial

delays'

Expeditions, efficient and inexpensive justice rarely, if ever, reaches the ordinary citlens. Besides cases of custodial death$ and other instances of human rights

violations of undertrial prisoners, it was appalling to find many accused persons having spent in jails longer years than the maximum jail sentence prescribed for ihe offence they are alleged to have colnmitted. Millions of cases iemain pending for years in courts at various levels. It is not unusual to find courts dealing with cases filed more than 25 years ago. In many a case one or the other party dies before the case is decided.

There is another side to judicial delays. No one who is anyone gets punished for corruption or other heinous crimes like murder, rape, kidnapping iobbery and smuggling etc. Several criminal cases involving former Prime Ministers, Union Ministers, Chief Ministers and other senior politicians keep pending for years. These get adjournment again and again, year after year. No body is anxious for their speedy disposal. In the meantime, the accused are often allowed to continue to occupy high eiective offices as Ministers, Chief Ministers etc. The public perception is that ultimately they always go scotfree. Police are often miiused. There is interference in investigation. Delays dre engineered to ensure that witnesses lose interest. Police can be relied upon to help the accused by leaving some legal loopholes making the charges unsustainable. Witnesses may be bought or bribed and may turn hostile or get liquidated. Sometimes a deal may be struck with the public probecutor or the lawyer of the opposite party. Finally, some courts themselves may not be above being manipulated. When it comes to prosecuting any politician, there is a special comradeship or birndari feel]rr:rg among the politicians of all parties. The V.I.P. accused are protected by the state secudty aPParatus at public exPense' They defend each other. No wonder, public faith in the judicial processes is getting eroded very fast.

in the judicial prbcess are the litigants, the police and the lawyerb and the judges. Rightly or wrongly, agencies, other investigating been taken to be an unscrupulous lot not have always lawyers as a class Thanks to the ready assistance of like considerations. troubled by ethical and police and the courts being misused for the it is not uncommon crafty lawyers, The key players

for harassing and blackmailing ordinary citizens under the pressure of influential ooliticians or dadas of the underwotld. Members of the bar seem to have vested interest in keeping cases gping for as long as possible. Lawyers rarely counsel their clients to go in for out of court settlement or to avoid Iitigation even when they know that the facts and law are against their client.

ludiciary in lnclian

Polity

25

Costs of seeking justice are high and ordinary citizens can hardly afford it. The lawyers are also guilty of charging urueasonably high fees - many partly in cash - and having little interest in early disposal of cases. Not all lawyers conform to any professional ethics. On one pretext or the other, the advocates representing the parties keep asking for repeated adjoumments and judges gladly oblige.

The ftindamental problem with the entire system of administration of justice is its preoccupation with the interests and dignity of judges and lawyers with concerns of ordinary citizens being the lowest priority, if any. There is a steep deterioration in the quality of judicial officers, judges and lawyers at all levels. The best or even the second best are not known to be going to the profession of 1aw.

Possible Remedies and Reform Options: Looked at from the angle and perception of the judges and lawyers, what needs to be done is (i) to fitl up all the existing vacancies of judges, (ii) increase the number of judges and other judicial officers at various levels, (iii) provide higher salaries, better perks and status and raise the retirement age for judicial officers at all levels, and (iv) ensure to the judiciary greater independence including financial autonomy.

While there may be some merit in some of these suggestions, the real problems may lie elsewhere and may call for more fundamental remedies for ensuring clearl corruption free, swift and inexpensive justice to all citizens equally. Some of the reform suggestions which have been made call for inquiry and examination. l. Intensive training and orientation programmes should be organized for the members of the Judiciary at all levels at the time of their entry. There should be refresher courses for upgradation of training and orientation programmes at regular intervals during the service for judicial officers from the lowest to the highest courts. Similar training camps need to be

organized for the lawyers for improving their professional skills and responsibilities. ll, The recemmendations made by the National Judicial Pay Commission for subordinate judiciary could be considered for application equally to High Courts and the Supreme Court. The latter, in fact, should become role model for all other courrs.

Yearly declaration of assets and liabilities to be made by all judges lowest to the highest, from the Munsifs to the C.J.I. lV. Right to speedy, time bound affordable justice equally available to all citizens to be enshrined as an enforceable fundamental right under the Constitution. Improving the quality of legal education and training; attracting better raw material to the Bar and the Bench.

l1l.

vi. Informal Interaction Sessions between judges, advocates, heads'of

investigative agencies and litigants, the philosophy aloofness no more valid.

of

judicial

The Citizen and Judicial Reforms

zo

Case management at all levels to be modernised by use of the latest principles and mechanisms of frformation technology, computerisation etc.

Need to simplify procedures and court practices, amending Cr. P.C., LP.C., Evidence law etc.; providing full security and protection to witnesses.

ix. Greater recourse to parallel and altemative dispute resolution (ADR) mechanisms like Lok Adalats, Nyaya Panchayats at village, block and district levels; reviving the systeor of Honorary Magistrates for trying petty offences; system of pre bargaining and palment of compensation. Retirement age for all the judges of the High Courts and the Supreme Court may be raised to 70 years but they should be strictly barred from any office of profit or employment thereafter, not even Govemorship or paid Chairmanship of any Committee or Commission. Also they should

be ineligible to make private earning from law through chamber practice, opinion giving, arbitration etc. xl. Advocates who are offered judgeship must be obliged to accept it.

xii. Need to restrict the number of appeals; frequent adjouinments not be allowed; firm time limits for final disposal of cases; allowing submission of written arguments; time limits for delivery of judgment after conclusion of hearing.

full of evidence of scholarship through quotations from foreign jurists, judges and judgments; only one agreed judgment in each case, no separate or dissenting judgments which only confuse the people. If Judgments to be short, precise and to the point, not like Ph.D. theses

brother judges cannot convince each other or agree among themselves,

how can the people be certain about the law and its

correct

interpretation.

xiv. The colonial and feudal hangover of the luxury of long summer and other vacations must come to an end. Judges may be required to work for at least 220 or 230 days in a year with longer daily working hours. In cases of shortage of court rooms, courts may sit in shifts particularly where arrears accumulate. For clearing the existing arrears, a time bound programme may be devised and announced. xv. A dispassionate study may be made of Supreme Court judgments which may need immediate review.

It should be part of the training, orientation and professional ethics of advocates not to take up the defeirce of persons who are known to them to be guilty of the crime they are accused of. Also, where the advocate is convinced that his client has really no case, he should be advised not to waste money'and time - his own and corrrt's. He can advise his client to seek out of court compromise or seftlement. xv9. Advocates may be categorised as A, B, C & D and their fees regulated by law; payments to be strictly by cheques only.

ItLdiciary in lndian

Polity

27

Many of these suggestions were made at the Constitution Commission (NCRwc) as mentioned in its minutes of the 11th meeting [see Vol. II of the

Reportl. see

For the recommendations regarding the judiciary made by the NCRWC, Annexure.

Conclusion: If freedom and democracy have to endure and faith in the system restored, urgent judicial reforms are a high priority categorical imperative. These are at least as necessary as reforms in anv other sector, \ /hile it is of the utmost importance that people's faith in the Judiciary remains inviolate, it is also true that problems in the judiciary are part of ihe larger national malaise and that judicial reforms cannot be viewed in isolation nor Ln these be the panacea for all the maladies that afflict Indian polity todav. An

integrated approach to reforms agenda is called for. Judicial .efot-i themselves can succeed only when accompanied by other essential reforrns. It would be necessary, for example, that the Legislature and the Executive are made to

discharge their responsibilities, that the quality of legislation and administration improves, that there is greater probity in pubtic life and administration and that the citizens themselvei reaiise tlieir democratic . obligations and build the necessary pressure to ensure that the Judiciary, the Executive-_and the Legislature all function in the interests of the people and remain fully accountable to them under the Constitution and rule of law.

Annexure Recommendations on the ludiciary made lry the National commission to Reztiew the Working of the Constitution (31 March, 2002)

CHAPTER 7: THE JUDICIARY (1) In the matter of appointment of Judges of the Supreme Court, it would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making recommendations. The iomposition of the collegium gives due importance to and provides for the effective participation of both the executive and the judicial wings of the state as an integrated scireme for the machinery for appointment of judges. A National ludicial Commission under the Constitution should be established.

The National Judicial Commission for appointment of judges of the

Supreme Court shall comprise of:

(1) (2) (3) (4)

The Chief Justice of India

Two senior-most judges of the Supreme Court The Union Minister for Law and Justice

: : :

Chairman Member Member

One eminent person nominated by the presidenr after consulting the Chief Justice of

India

: Member The establishment of a National Judicial commission and its composition are to be treated as integral in view of the need to preserve the independence of the

judiciary.

[para7.3.7]

The Citizen and

ludicial Morms

(2) A committee comprising the Chief Justice of India and two senior-most

Judges of the Supreme Court will corrlprise the committee of the National Judicial Commission exclusively empowdred to examine complaints of deviant behaviour of all kinds and complaints o{ misbehaviour and incapacity against judges of the supreme court and the High Courts. If the committee finds that the maiter is seriou; enough to call for a fuller investigation or inquiry, it shall refer the matter for a full inquiry to the committee [constituted under the Judges' (Inquiry) Act, 19681. The committee under the Judges Inquiry Act shall be a Dermanent committee with a fixed tenure with composition indicated in the said Act and not one constifuted ad hoc for a particular case or from case to case, as is the present position under section 3(2i of the Act. The tenure of the inquiry committee shali be for a period of four years and to be re-constituted every four

years. The inquiry committee shall be constituted by the Presirtent in consultation with the chief Justice of India. The inquiry committee shall inquire into and report on the allegation agailrst the Judge in accordance with the procedure piescribed by the said Act, l.e. in accordance with the sub-sections (3) io (8) of section 3 and sub-section (1) of section 4 of the said Act and submit their report to the Chief justice of India, who shall place before a committee of seven senior-most judges of the Supreme Court. The Committee of seven judges shall take a decision as to - whether (a) findings of the inquiry committee are proper and (b) any charge or charges are established against the judge and if so, whether the charges held proved are so serious as to call for his removal (1.e. proved misbehaviour) or whether it should be sufficient to administer a waming to him and/or make other directions with respect to allotment of work to him by the concemed Chief Justice or to fransfer him to some other court (i'e' deviant behaviour not amountin8 to miEbehaviour)' If the decision of the said committee of judges recommends the removal of the Judge, it shall be a convention that the judge promptly demits office himself. If he fails to do so, the matter will be ptocessed for being placed before Parliament in accordance with articles 1 24(4) ind 217 (1) proviso (b) . Thts procedure shall equally apply in case of fudges of the Supreme Court and the High Courts except that in the case of a Supreme Court Judge the judge against whom complaint is received or inquiry is ordered, shall not participate in any proceeding affecting him. In appropriate cases the Chief Justice of the High Court or the Chief Justice of India, may withhold judicial work from the judge concemed after the inquiry [Para 7'3'8] committee records a finding against the judge. (3) Article 124(3) contemplates appointment of Judges of Supreme Court from three sources. However, in the last fifty years not a single distinguished iurist has been appointed. From the Bar also, less than half a dozen |udges have 'been appointed. It is time that suitably meritorious persons from these sources lPara7.3.9l ur" uppoittt"d. increased be judges should High Court the of (4) The retirement age of the to increased be should Court of the supreme to 65 years and that of the Judges 68

yeirs.

[Para 7'3.10]

ludiciary in lndian

Polity

29

(5) In the matter of transfer of judges, it should be as a matter of policy and the power under article 222 and its exercise in appropriate cases should remain

untouched. The President would transfer a Judge from one High Court to any other High Court after consultation with a committee comprising the Chief Justice of India and the two senior-most fudges of the Supreme Court.

[Para7.3.1l] (6) A proviso should be inserted in article 129 so as to provide that the power of court to punish for contempt of itself inherent only in the Supreme Court and the High Courts and is available as part of the privilege of Parliament and State Legislatures, and no other court, tribunal or authority should have or be conferred with a power to punish for contempt of itself. lPara7.4.7l (7) A suitable provision may be inserted in the Constitution so as to provide that except the Supreme Court and the High Courts no other court, tribunal or authority shall exercise any jurisdiction to adjudicate on the validity or declare an Act of Parliament or State Legislature as being unconstitutional or beyond legislative competence and so ultra aires. Such a provision may be made as clause (5) of article 226.

[Para 7.5]

(8) A 'Judicial Council' at the apex level and Judicial Councils at each State at the level of the High Court should be set up. There should be an Administrative Office to assist the National Judicial Council and separate Administrative Offices attached to Judicial Councils in States. These bodies must be created under a statute made by Parliament. The Judicial Councils should be in charge of the preparation of plans, both short-term and long-term, and for preparing the proposals for annual budget. lParaT.71

(9) The budget proposals in each State must emanate from the State Judicial Council, in regard to the needs of the subordinate judiciary in that State, and will have to be subrnitted to the State Executive. Once the budget is so finalised between the State Iudicial Council and the State Executive, it should be presented in the State Legislature. [Para 7.8.1] (10) The entire burden of establishing subordinate courts and maintaining subordinate judiciary should not be on the State Governments. There is a concurrent obligation on the Union Govemment to meet the expenditure for subordinate courts. Therefore, the Planning Commission and the Finance Commission must allocate sufficient funds from national resources to meet the demands of the State iudiciary in each of the States. lPara 7.8.21 (11) The presiding officers in courts should be adequately trained. To ensure competence, there should be a proPer selection, freedom of action, training, motivation and experience. To maintain their competence it is necessary to have continuing education for the judges. Some national judicial institutions have to be properly strucfured to give such training. There should be a proper monitoring of moving the judges where work demands such movement from places where there are no arrears of work. There has to be systematic assessment of training needs of judicial personnel at different levels. lPara 7.10.21

30

The

Citizen and ludicial Reforms

(12) The Govemment should ensurte basic infua-structure needed to all courts and arrange to ensure that courts ane not handicapped for want of infrastructural facilities. Govemments, both at the Centre and in the States, should constifute committee of secretaries to review govemment litigation with a view

to avoid adjudication, wherever possible, give priority in filing of written statements, wherever required, and instruct govemment advocates to seek early decision on govemment Litiga tion. [Para7.1,0.4]

(13) In the Supreme Court and the High Courts, judgments should ordinarily be delivered not later than nirrrety days from the conciusion of the case. If a judgment is not rendered within such time - it is possible that the complexities of the case and the effect the decision may have on another similar situation might compel greater and larger judicial consideration and contemplation - the case must be listed before the court immediately on the expiry of ninety days for the court to fix a specific date for the pronouncement of the judgment. IPara 7.10.5] (14) An award of exemplary costs should be given in appropriate cases of abuse of process of

law.

[Para7.ltl

(15) The recommendations of the Law Commission of India

in regard to the Nagar Nyayalayas, Conciliation Courts, ADR systems of urban litigation, evidence recording by Commissioners, etc. as incorporated in the Code of Civil Procedure (Amendment) Act, 2000 should be brought into force with such modifications as would take care of a few gerious obiectlons. [Para 7.13.3] (16) The provisions relating to ionciliation in the Arbitration and Conciliation Act, L996 should suitably be amended to provide for obligatory recourse to conciliation or mediation in relation to cases pending in courts. Further, the scope and functions of the Legal Services Authorities constituted under the Legal Services Authorities Act, tr987 should be enlarged and extended to enable the Authorities to set up conciliation and mediation fora and to

conduct, in collaboration of other instifutions wherever necessary, training courses for conciliators and mediators. [Para7.13.4l

(17) Each High Court should, in cOnsultation with the judicial councils referred to in para 7.7, prepate a strategic plan for time-bound clearance of arrears in courts under its jurisdiction. Tlrre plan may prescribe annual targets and dishict-wise performance targets. Higlr Courts should establish monitoring mechanisms for progress evaluation. The purpose is to achieve the position that no court within the High Court's jurisdiction has any case pending for more than one year. This should be achieved witlhin a period of five years or earlier. IPara 7.13.5]

(18) The criminal investigation sb/stem needs higher standards of professionalised action and it should be provided adequate logistic and technologicai support. Serious offences should be classified for purpose of

specialized investigation by specially selected, trained and experienced investigators. They should not be burdened with other duties like security, maintenance of law and order etc., and dhould be entrusted exclusively with investigation of serious offences. lParaT.14.21

ludiciary in Indian

Polity

31

(19) The number of Forensic science Institutions with modem technoloeies such as DNA fingerprinting technology should be enhanced . fpara7.7[3]

_ (20) The system of plea-bargaining (as recommended by the Law commission of India in its Report) should be introduced as part of the process of

decriminalisation.

[paraZ.I4.4] (21) In order that citizen's confidence in the police administration is enhanced, the police administration in the districts should periodicallv review the statistics of all the arrests made by the police in the distiict as to how manv of the cases in which arrests were made culrninated in the filing of charge-sheeis in the court and how many of the arrests ultimately turned out to be unnecessary. This review will check the tendency of unnecessary arrests. [Pan7.145] (22) The legal services authorities in the States should set up committees with the participation of civil society for bringing the accused and the victims together to work out compounding of offences. [para 7.14.6]

(23) Statements of wihresses during investigation of serious cases should be recorded before a magistrate under Section 164 of the Code of Criminal Procedure,

1973.

[para7.I4.7]

(24) The case for a viable, social justice-oriented and effective scheme for

compensation victims is now widely felt. The Govemment at the Union level and in the States are well advised under the directive principles as well as under International Human Rights obligations to legislate on the subl'ect of an effective scheme of compensation for victims of crime without further delay. [Para 7.15.3] (25) The tremendous support which the criminal justice might derive from the people once the compensation scheme is introduced even in a modest scale, and the possibilities of advancing the crying need for social justice in a very real sense/ are attractive enough for the State to find money to float the scheme

immediately.

(26) The National Informatics Centre

[para7.Ii.4l in collaboration with or with the

assistance of the Indian Law Institute and the Government Law Der:artments

should set up a Digital Legal Information System in the country io that all courts, legal departments, law schools would be able to access and retrieve information from the data bank of the important law libraries in the counhy. lPara7.17.21

(27) Progressively the hierarchy of the subordinate courts in the country should be brought down to a two-tier of subordinate judiciary under the High Court. Further, strict selection criteria and adequate training facilities for the presiding officers of such courts should be provided. In orde"r to cope up with the workload of cases at the lower level and also to curtail arrears and delay, the States should appoint honorary judicial magistrates selected from experienced lawyers on the criminal side to try and dispose less serious and petty cases on part-time basis on tJre pattern of Recorders and Assis

{:4,r

''

:l'I i'

_

i

i'i+r

Liare.,.

*"-,,.,*.

.

32

The Citizen and Judicial Reforms

could set for, say, 100 days in a year and hold court later in the evenings after regular court hours. This would relieve the load on the regrrlar magistracy. [Para 7.18] (28) Since the issues relating to human rights, more particularly relating to unlawful detention, have now occupied a center-stage, both nationally and

intemationally, it shall be desirable that the Protection of Human Rights Act, 1993 rrray be suitably amended to provide that, in addition to the powers generally vested in that Court, such courts shall have the power to issue directions of th€ nature of a habeas corpus as was available to the High Courts under section 491 of the Code of Crir4inal Procedure, 1898. Vesting of such power will go a long way in providing help to the indigent and vulnerable sections of the society in view of the proximity and easy accessibility of the Court of Session. lParaT .1"9.31

(,6B)

Part

II

juolcIARY AND

|uolcIAL RsronMS

WHY HAS TUDICIARY FAILED? Shanti Bhushan*

Although it is more than 50 years back that India constituted itself into a republic, the message of the republic did not quite sink in either among the citizens or among those who govern us. Still, the mentality which was present during the period that we were being ruled by England continues to persist. People thought that there was only a change of rulers, that instead of the British mlers, Indian elected rulers had taken their place. The equation between the rulers and the people who are supposed tobe governed did not undergo a change. The common people including the educated do not even today reilise that sovereignty resides in them, it does not reside in the parliament, it does not reside in the Supreme Court. Real sovereignty resides with the people. Every institution of governance really functions for and on behalf of the people whether it be the Parliament or it be the judiciary, all of them are appointed people, on behalf of the people to serve the people. And this rrressage of the republic has not fully sunk in. Ultimately, all decisions concerning the country will have to be taken at the level of the people at large, informed public opinion will have to emerge, it will have to be created all over brdia and people will have to be guided to come to certain conclusions. A strong public opinion when it is formed and when it is expressed, it will have to be followed by the so-called representatives of the people. We need not depend upon the two-third majority arnong Members of Parliament. They may have their own agenda. They are certainly elected by the people in a serue but unless there is a very strong public opinion created on matters which touch the people, it will be difficult to activate them to adopt measures - whether they be by constihrtional amendments or by way of judicial reforms - to do the needful.

What is the situation today so far as judicial reforms are concemed? Judiciary is one of the institutions of governance and it govems for the people. So, people must feel satisfied. People are entitled to express their distresl, their

*

Senior Advocate, Supreme Court, Former Union Minister of Law, Justice and Companv Affairs.

36

Tlrc Citizen and

lttdicial Reforms

dissatisfaction and those who man the judiciary should not take such criticism amiss. They should not mind such criticisms even when these are harsh because many a time, they represent a reality as eroding the confidence among the judiciary and, therefore, not permlssible in a republic where the total sovereignty resides in the people. People are entitled to discuss every institution, come to their conclusion because it is only when faults are found, ascertained, only then there can be an effort to do away with those faults and to reform the process. What is the situation of the administration of justice today, more than 50 years af ter we established the republic and adopted our Constitution? If you ask members of the litigant public, potential wibnesses, victims of police brutality, accused persons, complainants or any section of society, uniformly the answer would be that people are thoroughly dissatisfied with the way in which justice had been administered during the last 50 years. And they are entitled to pose this question, who has been responsible for this state of affairs which the people find today to their distress. Somebody has to be made accountable. Somebody at least will have to be criticised. It has been the joint responsibility of the Parliament, the Government as well as the judiciary, more so the judiciary because judiciary was made responsible for administration of justice. If they were not receiving any cooperation from the other wings of the Government either the Parliament or the Executive which they felt was absoiutely necessary, it was for them to have raised their voice, brought those issues in the public domain and got public opinion created which would exert a pressure on the executive to do the needful. But it has not entirely been the fault of the executive. A major part of the responsibility will have to be borne by the judiciary. Why has the judiciary failed? The whole system was based on the premise that the jr.rdiciary would be manned at every leve1, from the lowest level to the highest level by the best or comparatirvely the best brains available in the country. Unforttinately, it did not happen. We had the best of brains and some of the ablest people in the jr.rdiciary in 1950 - there are still some very brilliant people in the judiciary - but if we look at the judiciary at iarge collectively, the percentage of excellent people who can be regarded as ideal judges has diminished. It was very much higher in 1950 and it is very small today. What are the reasons? Sornehow we have not been able to get the best people in the

judiciary. Why? Particularly because the recruiting ground of judiciary at different levels has been the bar, namely. lawyers. As everyone knows, the legal profession for a very long time has been the profession of a last resort by the students. In fact, if we go to the marriage market which is a true barometer of what people think about different professions, we find that when a person think6"of marrying his daughter to somebody, he first thinks of the members of the lAS, if IAS is not available, IPS would do, then they think of engineers, junior engineers and then even more minor official clerks. If they cannot get any of these, then they think of some lawyer.

After a person did his graduation and thought of what he should do thereafter, he would think of various courses. If he failed to secure admission in engineering or in any other thing he would think of LL.B. Unfortunately^ the lawyer class over the years has failed tp attract the best talent in the country

Why has Judiciary Failed?

barring some exceptions. Now if we have that kind of class, namely, those who were essentially failures and if the recruiting had to be done only from amongst them, then barring a few exceptions that we sometimes got very good judges etc., but the general level was not the kind of level that we needed. Therefore, something needs to be done in that direction. And perhaps, one of the measures which is being considered, was always there in the scheme of things, namely, All-India Judicial Service. If we confine the recruitment to the All-India Judicialt Service to persons who are lawyers, who have already done law, we will not be

able to get that kind of talent which we might get if we do not make the possession of a LLB degree a condition. We must get the best brains, after that we can give them legal training, what they learn during LLB can be taught to them after they have been recruited. We should give them at least the same pay scales which.are given to IAS and in fact a little better pay scales than the IAS because adr#nistLtion of jusfice is a very important thing. The life of the common man particularly in a country where we have the rule of law has got to be govemed by law. Everything, even the progress of society will have to be through laws. Laws will have to be administered and the judges will play a very important role in that. But today new kinds of issues are arising, even in matters before law courts. Earlier in 1950 or prior to 1950; simple questions used to come up, namely, offences under the penal code so far as criminal law was concerned. Under civii law, some property disputes, mot'rey disputes, money lending disputes and other kinds of disputes and so on. But todap the nature of the disputes have undergone a great change. The powers of the courts have been very much increased after the Constitution. When the Constitution provides for judicial review of every administrative action, obviously before they administer justice the judges will have to understand all those compiex issues to be able to take an informed decision. They mdst be possessed of that high level of intelligence which God alone gives. Therefore, we will have to think in many directions as to how to have an adrninistration of justice in this country which will be equal to the task, will not suffer from many defects from which the adminishation of justice is suffering today.

During the last 50 years, there have been any number of committees of judges to go into the question of arrears. They have recommended all kinds of solutions. Why have those solutions not produced any results? On the other hand, the problem has kept on muliiplying. A multidirectional approach will be necessary to solve this problem. Sometimes, it has been suggested that current cases are very important. They should be dealt with very fast. Recehtly, we saw in United States in regard to the election of the President, namely, some legal controversies had arisen and the legal controversies were first going to a lower court, then going to the Supreme Court of that State and finally landing up with this Supreme Court of the United States. And the speed with which decisions were being givery and appeals were taken, namely, in the matter of days and weeks, so many decisions were given, appeals decided and finally the Supreme Court decided it. And it is not only in America, sometimes when the Supreme Court of India also feels that there is an issue which needs to be resolved within a few days, it is able to.do it. Only when it thinks that the issue needs to be

The Citizen and ludicial Reforms

decided quickly, it is able to do it. Now what should be the time frame in which a case should be decided because after all decision of a case is not a matter of luxury. It has a certain prlrpose. The most important purpose is that if we give relief to a person against whom some wtrong has been done by another person

and he gets prompt ielief, the other 100 persons will be deterred from

committing that wrong. Today wrongs are committed in the belief that nothing can be done against the wrong doer. He will go to a court, court will take 20 years, then there would be appeals, they will take another ten years. So, the man will get tired. Only very recently, a couple of rhonths back, there was a case in the Supreme Court which arose among the members of a very rich Hindu family of Karnataka, a partition suit which was filed by ten brothers who wanted to divide their properties so that they and their wives cease fighting with each other. So, they filed a suit for partition in 1948. Suit for partition involves first passing a preliminary decree, namely, declaring the shares of the different members of the family and then dividing the properties according to those shares and then passing a final decree and handing over possession of those separate shares to different persons. It is incredible and hard to believe that the final decree in the partition sr.rit which was filed in 1948 is yet to be passed by the Supreme Court. Hopefully, when they deliver judgment and in that case, judgment has been reserved, but thereafter executiory namely, handing over possession etc., would still remain. If this is the pace at which the judicial proceedings progress, then no wonder if people have lost faith in the administration of justice altogether. In a criminal case, if a person commits a crime, one of the most important objects of criminal jurisprudence is that prompt punishment be given to the person who has committed an offence $o as to deter others from committing similar offences. Similar also is the case with civil cases. Namely, if a landlord has a right to evict a tenant and promptly he gets eviqted ttuough the machinery of law and also not only gets evicted but also takes two or tfuee months for the proceedings to get decided, he also getS penalty, namely, penal rent from the tenant, then no tenant knowing that yes, the law does not give me protectiory I am bound to be evicted, he will not compel the landlord to go to the court which he will find counter productive because he will feel that within three months, I am going to be evicted and for my contirtrued occupation for three months also, maybe, the five times rent that I have been paying, the penal rent would be the decree against me. So, what is the use, wtry should I not vacate myself. So, the main purpose of the law is to make peqple act according to law, both in civil matters and criminal matters. But both these objects have failed today on accor.rnt of the slower and tardy movement of the couts of justice and, therefore, something needs to be done. In a criminal case, after the investigation is complete and the police have filed a charge-sheet or the private person has filed a complaint, what is required is only witrfresses. Witnesses have to be produced, they have to be cross-examined, charges framed and thereafter arguments heard and judgments delivered. By and large except in a very complex case of some conspiracy etc., the whole thing can be done in one month. In one month we can

Why has ludicinry

Failed?

gg

certainly get the witnesses produced, cross-examined, arguments heard, judgments delivered. Once the trial court has delivered judgment, how much time should it take for the appeal because everything is ready, counsel already know as to what is the case for both the parties. Only some time has to be given to the appellant to draft his grounds of appeal, he could do it in a week oi two and, thereafter, the court is available. The case can be put down for hearing in another three days and within two or three days the arguments could- be completed and within one month of the judgment of the trial court, the appellate court would decide the matter. So, it should not take more than a month oi so for an appeal to get decided. Even if there was further appeal to the Supreme Court, another month.

ln 1,971,, on behalf of the Indian Council of World Affairs, a delegation went to study the judicial systems of some European countries including England and some Middle East countries. We were pleasantly surprised to find the situation in Iraq. Iraq is a small country. The entire Supreme Court matters are discussed and we found that they have a three tier system, trial court both in civil and criminal, one appeal on fact and law both a.rd- finally a revision to the Supreme Court of Iraq on questions of law only. In every case, all the three stages are over within one year. If Iraq can organise its judicial system in this marmer, why can India with a culture of 5000 years, not organise things in such a manner that we would be able to dispense with final justice within at the most

one year, all the tiers included. So, evidently, there has been a serious negligence, failure on the part of somebody and the people of this country are entitled to know who have been responsible for this and make them accountable in some manner, at least, for having failed us. One of the suggestions has been that the judges in every court deal with the current cases promptly and in the minimum time so that every case is heard, without delay. Sometimes, of course, service of notice on the other party giving time to file a reply etc., may require two weeks and a couple of months may be needed for a court to decide the case, but it should not exceed that. For clearing the old cases which have been gathering dust, retired judges of every court could be invited. There is provision in the Constitution for ad hoc judges and particularly today when pensions have been made fairly handsorne, retired judges may be prepared to come and dispose of old cases because after retirement, what do they do. They are wasting their time and their health deteriorates, their respect in society diminishes. Even this factor is quite enough to activate them, namely, even if they are not paid any other remuneration, it will be in the interest of their health, it will be in the interest of the respect whicH they get from society. If an appeal was made to the retired judges without promising any additional remuneration, they will be happy with their pensions but the respect that they will get and the day-to-day

working, the pleasure which a work gives to a person, there is no higher pleasure which a person gets than out of work particularly if the work he finds interesting. Of course, the society would like to pay them so that they do not have to spend their own thing in discharging the duties. So, old cases they can hear, experienced people and lawyers will argue. We need not be so fetish about accommodation etc. In the Allahabad High Court, if a single judge matter was

40

The Citizen antl

ludicial Refotms

heard in the chamber because for some reason, the judge was not been able to come up to the court, there was no problem because the quality of justice does not depend upon ttre quality of the building in which the judge sits. It depends upor, ti-e quality of theludges and the quality of the members of ihe bar who are assisting. So, even if we had a court room, in fact, in Board of Revenue, during the winter in A'llahabad, some ICS judges felt that under a tent, it was much warmer. So, they used to shift their court rooms under that tent and the cases were very well argued by both sides. .Always the most eminent judges have retained their humility for all time. The abler the judge, the humbler he feels. There used to be Justice Niyamatullah in the Allahabad High Court long before. He was such an eminent judge but whenever even the junior most lawyer would start arguing before him, his derneanour would show as if some very profound things were going to emerge from that junior counsel. That was the time given. And so far as great judges and able judges are concemed/ they do not depend upon any arrogance or any assertion of authority for getting respect' It is their ability, it is their integrity, it is the quality of their mind which in itself gets instant respect from everybody. Today, unfortunately, the arrogance has crept into the thinking of judges, they feel that this is the prerogative which has been given .to them. They are called "My Lords", to lord over everybody and, therefore, they must deal with people like this. They must summon everybody to court for contempt or otherwise to explain things. kr fact, they feel sometimes a lot of pleasure if a very high officer can be called to be made to stand before them and then they would make some comment on the dress in which he has appeared in the court, not knowing themselves horv to dress for appearance in the court. These are all signs of inferiority complex. Great judges do not act in this rnanner. So, a lot needs to be done.

Coming to the Bar Council, the independence of the Bar is the slogan. Earlier judges used to regulate the bar. If there was a professional misconduct committed by a member of the Bar, the power to deal with that professional conduct was with the judges. But this was an era of independence of every profession. And, therefore, lndian Advocates Act which was enacted in 1961 said that it is only the people elected by the Bar which must administer their law. Lawyers are doing all kinds of things and we need to be punished very strongly for that. But unfortunately the system of self-governance has not succeeded in India. Whichever profession you take, expectation was that every profession will be responsible enough to govern itself by itself in a responsible manner to curb the evils which rlrere growing in its profession. But unfortunately whether you take mediqal professiory legal profession or any other professiory self'governance has failed. And, therefore, the system needs to be changed, namely, it must be administered not merely by the representatives of the profession but also including the representatives of who are to be served, namely, consumers of justice. On the lines of the position of patients in the case of medical profession so the system of those who wield the authority under the Advocates Act will have to be chqnged. Maybe, 50 per cent lawyers' representatives (elected persons), and fifty per cent some other way who could represent the litigant public because it i9 a joint entelprise. Therefore, they must see that no wront systems creep in the legal profession.

Why has ludiciary Fniled?

41

There has been considerable debate regarding the National Judicial commission' Even the Nafional commissiop io Review the working of the constitution, has referred to this National judicial Commission. ThIv have made their recommendations and people win be deliberating on thor" recommendations. The Lawyers Judicial Accountability Committee had also considered this.matter several years ago. It had drafted ; biil and sent it several years back. The National Judicial Commission which must be given the ultimate power of selecting the proper judges who will man our higher iourts, must be so designed because it needs various kinds of inputs. Of couise, the inputs namely, who are competent lawyers or competent subordinate judges, that input is most likely to_ come from the judiciary because they alone are inl position io examine the professional worth of a lawyer or the professional worlh of a subordinate judge. But there are other inputs also. It is not,merely the technical corripetence which is material,, what kind of philosophy does he have. In USA people are selected to become judges of higher courts on various considerations. Dbes his legal philosophy accord with the national philosophy contained in the Constitution? These are also very important inputs. 't robably, these inputs might not come from the judiciary. These inputs perhaps might come from representatives of Parliament because they are supposed to be more in touch with the national ethos. They might come more from some other source. But at the same time, the past experience has shown that since parliament is controlled by the executive, whichever has the maiority, so the Govemment acts on behalf of the Parliament. The Govemment, unfortunately. past experience has shown, attaches more importance to its own political agenda than io the welfare of the people or the national cause and so on. That is what the experience has shown. Therefore, there is an effort for the Govemment of the day to put its own men in crucial positions of judiciary etc. That effort is not good for the people of the country. While qome kind of an input from the parliament may be permissible, a controlling voice cannot be conceded to it. At the same time, a controlling voice also cannot be conceded from the ludiciary. So, the National lidi.iul commission will have to be so balanied tha[ neither the executive or the Parliament can control it by having majority representation, nor the judiciary can control it by having a majoriiy representation. The Committee on Judicial Accountability had suggested a five-member commissiory Chairman to be nominated by the Chief Justice of India and the other Judges of the Supreme Court sitting together as a collegium. One member also to be nominatei by a collegium of all the Chief Justices of the various High Courts. So, out of five, two persons wouid be representatives of the iudiciary, one person to be nominated by the Union Corrncil of Ministers, namely, tire ruling party which is the representative of the Parliament and one member to be nominated by the leader of the Opposition because it is not merely the ruling.party but the opposition also in consultation with the leader of other opposition groups in ih" t"o Honses of Parliament and the fifth member could represent the Bir where either the all-India Bar council could select or a collegium of Attomey General, solicitor General and all the Advocates General oi states could seiect such a person. So, the position would be two persons to represent the parliament, one

The Citizen and

ludicial Reforms

through the ruling party and one throrrrgh the opposition, two persons to repre;nt the judiciary, tl.e Supreme Court and the High Courts and another peison the fifih persoo this together will take the final decision in regard to which persons ire to be appointed to the judiciary. More important than appointment is disciplining the judiciary, Everyone knows about it. Recently, tne Cnief Justice of India declared at sorne place that about 20 per cent of the Indian judiciary is corrupt. He was maki4g some speech in Kerala. Others have also said it in the past. But he was very fqrthright' He also said that there is no system by which we can, after the failure of the impeachment, what has been .illed i*peu.hment. I do not find any fault with the expression of impeachment. Impeachment is one method of getting rid of a person. You may call it impeachment, you may call it a motion for removal etc. That is a technicality. But in any case, that system had failed in Justice V' Ramaswami case because it was found that the Members of the Parliament politicalised it. And, therefore, one political party, all the MPs refused to even vote one way or the other. This was almost a iudicial fut'tction to decide whether a person had been found guilty or not. And those who had to decide, they said, why should we apply our mind and the result was that even though the resolution was unanimous in favour of removal, it did not pass because it required an absolute majority of the total membership of Parliament. This was adverted to by the Chief Justice of India and he said the system had failed and there is no other system in place. Of course, those element$, the corrupt elements of the judiciary were very happy. \a/hy should they need a system in place to curb them' But the people of India need a system in place to come here and to keep them. Now it

was suggested by the committee on jlrdiciai accountability that this very National fudicial Commission may also be given the power to discipline the

ludges, namely, to go into this questiory take a decision and direct removal of the judges as used to be done under the Government of India Act. Even this system will succeed only if, because what has been suggested by the Law Commission is, all right, Chief Justice of lndia, two judges of the Supreme Court and Law Minister and one person to be nominated by the President possibly on the advice of the Council of Ministers. But do they have the time? They are busy with their own work. These are very impprtant matters. Whichever is the body, they must be assisted by a permanent body, namely permanent body which has the power to entertain complaints, enquiie into them, collect evidence and then

present the findings to the National Commission. Unless you have a body, complaints can come from any source, cotrnplaints may be false, complaints may be true but unless there is a body with statutory powers of investigation like the police, they can lay a trap. They can collect any other evidence. A common marl even a member of the Bar who knows that a particular judge is corrupt has no means of proving it because he cannot collect evidence. Only a statutory authority will be in a position having the power to collect must collect evidence. So, this must be assisted by a body which must have its own independent machinery for investigating matters and it should investigate and come out with evidence and then only any Process can be activated. This is the most important for doing away with black sheep.

Why has ludicinry Failed?

\

- wl,'ut does independence of judiciary exactly mean? Because there has always been a danger in the matter of appointments, the elevation as Chief Justice etc., the ftrnctiory to some extent, wiswith the Government haditionally. Therefore, the idea is the tendency among judges would be to keep those happy who will count so far as his promotion and advancement is concemed ani independence of judiciary means, you must be devoted only to what is vour real job.and not looking left or right, not bothered about your prospects. \,ve should 'be happy about what we have got and reave it to God wheiher we go to a higher court or not. But what is more important is, we must eam the etemal gratituJe of the society in doing our job properly. Now this is the independence Jtpdi"iary. But many things which are said in order to make the judiciary independent, they_must have the right to decide in regard to their pay scales, perks and so ory that has nothing to do with the independence of judiciary. Revival of the institution of honorary magistrates may be suggested. Lawyers tend to make things look very complex and very complicate-d. But things are fairly simple, namely, if somebody has stolen so-ibody,i property or somebody has hit another person and., therefore, committed att oifer,ce of "iin"t theft or causing hurt, it does not require too much of expertise, namely to examine the witnesses and come to a conclusion as to whether these witnesses are speaking the truth or not. Therefore, if there is plenty of retired armv officers . they are very intelligent and national minded ieop6 - if we are dispensing justice even in small matters, it is a matter of very great respect. we will get a lot of respect from the society particularly if we are doing things in a good mannir. There is lot of reservoir of lay people we should depend more on liy people like ex-army officers, ex-public servants and other people, may be retired pdgis alsq namely, lawyers who have called it a day, this is too much trouble, too much tension to go to court and listen to what judges have tb say but we would like to serve the society even as honorary magistrates. It wilI be, small cases may be, but we will certainly eam the respect of society. so, lot can be done but loi will be done only if we have etemally vigilant public opinion and organisations to harness that public opiniory create that public opinior; and for that public opinion to assert itself.

(,6&)

TUDICIARY AND TUDICIAL REFORMS J.S. Vetma*

The Preamble to the Constitution of India begins with the words 'We, the people of India', and ends with 'do hereby adopt, enact and give to ourselves this Constifution'. These words indicate the source of ultimate power under the Constitution. The distribution of powgrs by the specific provisions of the Constitution to different wings/ institutions established by the Constitution is, therefore, by the political sovereign - the people, and the powers must invariably be exercised for the public good. The polilty envisaged is a Democratic Republic, which emphasises this aspect. Aristotlels Politics emphasised the role of the citizen, and it said: 'The greatest of all the means. ..for ensuring the stability of Constitution - but which is nowadays generally neglected - is the education of citizens in the spirit of the Constitution... It consists in doing the actions by which a democracy will be enabled to survive. ..' The citizens must, therefore, be vigilant to ensure that all institutiorrrs are people-friendly and become

instruments of society, not remain merely instruments of power. The justice delivery system must also satisfy this demand.

Broadly, the constitutional scheme is of distribution of powers between the three main wings of govemance - the Legisiature, Executive and the Judiciary. To the judiciary is assigned the role interpretation of the Constihrtion and the laws and to ensure that each wing keeps within the limits delineated for it. The added responsibility for the judiciary is to keep itself in check by the practice of self-restraint. In this sense, the pre-eminent role of enforcement of the Rule of Law is the primary concem of the judiciary. The Rule of Law is a part of the basic structure and Judicial Review, including independence of the judiciary, is a basic feature which carrnot be abrogated in exercise of the amending power of Parliament under article 368 of the Congtitution. The functioning of the justice delivery system and the need for Judicial Reforms have to be viewed in this perspective.

*

Former Chief Justice of India and curnently Chairman, National Human Rights Commission. The present paPer was Part of the larger CPR study on Political Reforms.

44

Ittdiciary and ludicial

Reforms

preamble *Equality Jh" constitutional promise in the and Fraternity assuring

45

envisages justice, Liberty,

the dignity of the individual and unity and integrity of the nation. These are the core values of the hdian polity. The system of administration of justice must ensure realisation of this promise of a peoplefriendly welfare state. It must be conceded that the promise is vet to be realiied.

.

even though efforts are being made to move in that direction.

#e must, therefore. identify the areas of deficiency and devise suitable pragmatic ways of

elimina ting the defects.

The system must ensure equal justice to every citizen and the equal operation of laws against each. Even though speedy justice is read within the ambit of article 21, yet the phenomenal ,Law,s Delays, continue to be a nightmare and can be said to be the biggest slur on the justice delivery system. Access to justice for all is another requirement for providing equal jusfice. In spite of the provision for legal aid, and the enactment of article 39A and Ure Legal services Act, as well as the procedure of pIL with libe ration of locus standi, 'the goal is far to reach'. Except in Public Interest Litigation (pIL) matters, exorbitant costs and lawyers' fees deny justice to the needy in many cases. Procedural delays and several tiers of litigation are frustrating many genuine cases while encouraging frivoious litigation adding to docket explosion and further delay in conclusion of cases. Unless suitable checks arJ devised to control these negative factors, Law's Delays cannot be checked. There is need for radical reforms in this area. Justice

is a divine function and we, human beings, in attempting to

dispense justice may be seen to be partaking in a divine exercise. This ii an issue of the highest priority and significance. The need, therefore, is for every judge to develop the haits essential for the discharge of this function, as best as is humanly possible.

Appointment and Quality of Judges Another important area is the constitution of the judiciary with the best available personnel at every level. The people are expoied to, and are affected most by the performance at the grass roots level. The composition of the judiciary at the lower levels needs considerable improvement. Unless the lower level's performance improves, the desired result cinnot be achieved. Irutead of improvement at the lower levels, there appears to be an increasing deterioration at the higher levels. The process of composition of the judiciary at all levels by proper selection/appointment and enforcement of accountability witir improvement of the stock needs serious and urgent consideration. The quality of performance depends on ttre qualify of personnel who operate the system. provision for appointment of judges in the Supreme Court and High ^ Thecontained Court, in articles 724 and 217, rcmarns the same as originaiy enacted, but the need for a change is being debated primarily on account of the manner in which the provision is seen to be worked. In the first 25 years of the Constitution, there was no serious comment made in any responsible quarter on the manner of exercise of the power of appointment. A convention had developed that without express use of such language, the opinion of the Chief Justice of Lrdia, formed in consultation with the executive, was given primacy.

46

The

Citizen and ludicial Refotms

However, in the seventies, the ertecutive began to claim primacy in the matter of appointments and transfers which led to the First Judges case [S.P' Gupta v. Union of lndin, AIR 1982 SC 1491 wherein the Supreme Court itself upheld the executive's claim of primacy. That led to the executive's supremacy in the matter of appointment as of right which threatened the independence of the judiciary. Dissatisfaction with the working of the process led to the Second ludges case [SCAOR v . Llnion of India, AIR 1994 SC 268] wherein primacy of the opinion of the judiciary, expressed tfuough the Chief Justice of India, came to be established, emphasising that the role of the executive and the judiciary was participatory, the exercise being joint in which both have a role to play' However, some dissatisfaction with this led to the presidential reference and the Third ludges case [Special Reference No. 1 of P9g, D98(5) Scale 629] which reaffirmed the law laid down in the Second Judges case As it is, the power given to both the wings by the constitutional provisions is not to be treated as personal empowerment but imposition of a responsibility to find the most suitable person for appointment. Only the correct perception of the purpose for which the power is given can avoid confrontation. The absence of express provision of primacy to either appears to have been to emphasise that it is the joint responsibility of both the wings to work together to make the best possible selection which really is the object of enactment of the provision. Perhaps, the present situation warranto a review in the light of the experience gained so far to indicate clearly what was implicit throughout in these provisions which were so enacted to avoid the possibility of strict Postures being adopted by either side with a view to Promote a spirit of moderation in each to appreciate the value of the other's opinion. There is no doubt that the proportion of judges to the number of people for whom the courts cater is quite low and a study of the comparative figures in other jurisdictions reveals that the judge strength needs to be increased five-fold' Increase in the number of judges is necessary on account of the population explosion as also the growing awareness which is increasing litigation. But an increase made at one time will dilute the quality of the personnel. The desired increase should be in phases so that there is no compromise on quality in filling these offices.

It is also to be remembered that a person not of the desired merit will add to the problem by entertaining cases with no worth and rendering judgments which require correction at the higher levels which would be counterproductive. Care must be taken to ensure that there is no comprgmise on the quality of the personnel recruited to the judiciary at any level.

It is also necessary to improve the conditiors of service to attract better talent even at the level of subordinate judiciary so that the workload at the higher levels automatically reduces. The recent trend of disinclination of successful members of the Bar to accept judgeship is a serious matter which can no longer be ignored. Irnprovement of the conditions of service ofjudges at every level is necessary so that the deservirlg members df the Bar with a sense of professionalism do not find it very unlucrative to become judges.

ludiciary and Judicial Reforms

It carurot be seriously doubted that for quite sometime now, the best talent profession is not available for the appointment of judges. The problem is more acute in the subordinate judiciary where selection has to be made only from the residue after the brighter persons have chosen other professions and those in the Bar prefer not to leave it. The quality of justice administered ultimately depends on the quality of personnel manning the courts. As the significance of the justice delivery system is paramount in a democracy, it is essential to ensure that its personnel are at least as qualified and competent as that of any other branch. Apart from this being the need because of the nature of its function, it is also necessary for retaining credibility of the system in the public mind. Urgent steps are, therefore, needed to ensure

in the legal

appointments

from the best available material and enforcement

of

accountability by methods in keeping with the dignity of the office. The neeci is to improve the quality of personnel at every level. This can be achieved by making the office at least as prestigious as the best in any other vocation. The specific areas needing attention relate to selection/appointment, conditions of service, independence, including accountability in the judiciary. In this connectiory the corutihrtion of an All-India Judicial Service (AIIS) Iike the IAS etc. is necessary to attract some of the best talent at the threshold. In due course this would be a significant source of supply for the constitution of the higher Judicial Service. With conditions of service at par with IAS, more young talent would be attracted. Recruitment from AIJS & the Bar to constifute a subordinate judiciary will provide a better base for recruitment to the High Court and then the Supreme Court. It must be remembered that the People are affected most by the working in the subordinate judiciary and if the quality there deteriorates, public faith shakes and the workload of the higher courts increases. It has a direct impact on the work in the higher courts where also the quality suffers because of the greater workload.

A database containing profiles of all judges to provide an objective basis for selection from amongst them is needed. A National Judicial Commissiory representing all wings, headed by the Vice President/ Prime Minister/Chief Justice of India to make the selections/ appointments to the Supreme Court and the High Courts, transfer of High Court judges and their removal when necessary is being debated. However, the quality of the persons who constitute it and the need for adjudication of the alleged misconduct or misdemeanour by the judiciary to preserve its independence and to prevent misuse require to be seriously thought of.

Judicial Accountability

In respect of the judiciary there is yet another area needing review. This pertains to the mode of enforcement of judicial accountability of the higher judiciary for which the only existing procedure for the removal of a judge has been found wanting. The sole instance of an attempt to remove a Supreme Court judge did not work in spite of a finding of guilt recorded by the judges' Tribunal constituted under the Judges Enquiry AcL, 1968, enacted by Parliament under article 124 of the Constitution. It cannot be disputed that in a democratic

48

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republic wherein political sovereignty ve$ts in the people and equality is a core value, there cannot be any class of persons who are not accountable to the people, or are above the law. Moreover, jddicial accountability is only a facet of the independence of the judiciary and not inconsistent with it. Judicial accountability also ensures the immunity of judges from intemal infirmities with total independence. Judicial accountability again is in consonance with the constitutional scheme because of the enactment of article 235 in the original Constitution which empowers the High Court to exercise 'control' over the subordinate judiciary. Everyone who pays income tax, makes a declaration and discloses the assets to the Income Tax Department. V/hy should there not be any declaration of assets by everyone of the judges. Objectlon to it is something which is difficult

to understand. Many people say they have taken an oath of office. If oath of office were enough why is it that many others who take the oath of office are made accountable under the laws while some are not. Strangely enough a district judge up to the time he is a district judge is governed by certain service rules and he has to make a declaration of his assets every year but the moment he becomes a High Court judge he is relieved of that requirement. lndependence of the judiciary is equally essential for judicial officers and judges at every level right from a munsif to the Chief Justice of trndia. If declaration of assets and some method of controlling an aberration over subordinate judges is provided in the Constitution in article 235 and that is not consistent with independence of judiciary why should then a procedure cqnsistent with the dignity of superior judges for enforcement of judicial accountability be unacceptable? Now it is time that this type of debate gathers momentum because there should be no area which should be immune from accountability because ultimately such immunity would be anti-democratic. A method for enforcement of accourttability on the lines already accepted by the Supreme Court on 7 May, 1997, Ior High Court and Supreme Cturt judggs, should be adopted to the independence of the judiciary as envisaged in the Constitution.

Right to Speedy Justice 'Justice delayed is justice denied' is a well-known adage. It is not a mere cliche but the general impression of the current state of the lndian judicial system. This was the ground taken in a U.S. court to have the Bhopal case tried there and is often used to oppose extradition to India of those wanted to face trial here. In international trade there has been reluctance bordering on opposition to India as the forum for arbitration of disputes, for this reason. Speedy justice is not merely an ingredient of the 'right to life with dignity, guaranteed in article 21 of the Constitution of India but is also related to,access to justice', a basic right of every individual and 'equal justice, promised as a fundamental principle of governance in article 39A of the Constitution. The law's delays which have come to be identified with the Indian iudicial system

call for urgent effective remedies to retain public confidence. Unleis the situation is remedied soory people will lose faith in the system and resort more

lutliciary and ludicial

Reforms

49

to extra legal remedies, a trend which has already begun in some areas. This tendency has grown considerably in rent disputes in big cities where there is greater par.rcity of accommodation and in money suits. The tendency of growing arbitrariness in public authorities is also promoted by the perception that the aggrieved person is more likely to submit to injustice rather than suffer the travails of the slow justice delivery system. Corruption is the bane of the cotntry and the deterrent effect of a quick judicial system is no longer available as an effective check to curb that menace. Recourse to extra-legal remedies would spread soon to other areas which would be a bane of the rule of law. Thereby the democratic form of governance would receive a setback. It is, therefore, necessary that everyone addresses himself to this important issue and suitable remedies are devised at the earliest with the commitment for faithful implementation. Notwithstanding the interpretation of article 21 to include speedy justice as a part of the guarantee thereirl it remains confined, as yet, only to the theory with its translation into rea-lity, a future hope. The mere fact that delay in the decision of matters in the court has contributed to the evolution of the iuristic principle that inordinate delay in conclusion of the criminal trial is a sufficient ground to quash the trial, is a matter of serious concem. A co-ordinated approach to the criminal justice system is really the need of the hour. It is the need of all times and even when things are better, for preventive action; to ensure that the implementation of rule of Law is proper and thereby a functional democracy not merely survives, but has a vibrant functioning. Merely construing article 21, to include, right to speedy justice is not the end of the matter. This rlght has been found in the context of the person who is being tried. This is merely an individual right, there is a higher right in the people, the higher purpose to be served which must be treated as included in article 21. The expeditious trial has a public interest for the purpose of acquitting a man if he is not found to be guilty and for punishing him if he is found to be guilty. It serves a higher constitutional purpose which is in the public interest. An expeditious tdal takes care of both kinds of rights, the individual rights of the criminal or the offender and public interest. Pubiic memory very often on certain matters is short. When the trial commences there may be euphoria, but if it drags ory people are bound to lose interest in it. By lapse of time, the interest of the witnesses also may slacken, some of them may also not be available and the net result is that a fair trial is not possible because the evidence available against a man, even if he is guilty, may not remain available. Ultimately a person whom a society believes and knows is an offender who has committed a crime, is not punished. This is not conducive to the system of administration of justice. It also does not have the required deterrent effect on persons who are like minded. So, it further weakens the prevention measures' In an expeditious trial, the person who is really guitty is punished. The message goes to the entire society and has a deterrent effect. The credibility of the judicial process which is very essential is maintained. On the other hand, if the person is not found

50

The

Citizen and ltrdicial Reforms

guilty, he is acquitted, and is not exposed to that ignominy for a duration longer than is necessary. This requires a co-ordinated approach by all agencies which are involved in the trial. Delays are dishrrbing in the trial oi even civil matters but in criminal trials, the adverse effect is greater because a cfime is the concem of society as a whole and not merely of private parties as in the case of civil litigation. Delay in the

trial of a civil matter adversely affects the right of the party which ultimately succeeds and it may not be a matter of any consequence to the others. However,

in a criminal trial, it is in the society's irlterest that the trial concludes early and if the accused is not guiity, an early conclusion is necessary to reduce the ordeal of the trial and vindicate the accusedas honour as soon as possible. Speedy criminal trial is, therefore, necessary in the interest of both the accused and the society. Delay frustrates this obiective and is detrimental to the interest of everyone. Delay is the enemy of justice. The object of punishing the guilty at the earliest also has a chastening effect on others. Delay in the trial frustrates this objective even where the prosecution is justified because of the waning interest of not merely society but also of the witnesses with the passage of time which ultimately dilutes the prosecution evidence and facilitates the acquittal of the guilty. It is not uncommon that the usual delay in the conclusion of a trial reduces the fear and subconsciouslv prOmotes crime because of the fair chance of avoiding punishment. Frivolous Litigation One of the direct consequences of delay in the dispensation of justice is also the increase of frivolous litigation" Experience has shown that whenever

the dispensation of justice is quick, lhe inflow of frivolous litigation gets arrested because the expense involved in frivolous litigation is not productive. On the contrary the law's delays promote frivolous litigation and it is quite often used as a means of harassment of the opposite party to compel him to succumb

to some unreasonable and unjust demand. The net result of all

these

consequences is the erosion of the people's faith in the judicial system and subversion of the rule of law. This is a brief purview of the working of the Indian judicial system, particularly in the subordinate courts and now for sometime even in the High Courts. Statistics are urnecessary because the general picture is so eloquent that reference to figures ig meaningless. Figures have value only for the record and to assess the magnifude of the task. Concocted Cases

Of late, we find a very disturbing kind of criminal cases, that is, offences committed in relation to narcotics and psychotropic drugs. The experience is that quite a large number of cases which are put up mainly for statistical purposes/ are really false cases. It is not unusual to find a commorlstory. Some time back I found that in one particular state the standard story in so many cases was that a woman was found walking with a bag on her heid. When shl was stopped, and the bag was opened, what was found was that she was carrying charas leaves. It is too much of a coincidence that so many women one after the other continued to follow the same pattern of crime. Statistically it may

Judiciary and Judicial

Reforms

51

be al1 right, there are so many more cases. These cases are bound to end in acquittal. This is an area which requires to be seen and examined by senior police officers to ensure that proper personnel are entmsted with the detection, investigation and prosecution of these cases. Cases relating to gender justice are throwing up a very disturbing trend. There are frequently serious complaints of harassment by the police force itself which is supposed to be the protector. That is how the image suffers in a big way. Experience shows many of these cases to be false. Such cases leave a very dishrrbing thought in the mind. They do not merely erode the credibility of the judicial process, but also harass people. This also has an impact on the arrears in court and delays. Remedies to Reduce the Laws Delays

The meaning and content of articles 14 and 21 have been expanded by iudicial construction to promote the constitutional purpose. Article 14 has been construed to cover State activity, including the contrachral sphere. It has been held, that non-consideration of a legitirnate expectation, may render the decision arbitrary, unless supported by the consideration of public interest. Similarly, the

requirement of procedural faimess in permissible deprivation of life and personal liberty has been read into article 21 and the right therein has been held to be, the right to live with human dignity. The right io speedy trial has been .

held to be an essential ingredieni of just and fair procedure guaranteed by article 21.

The right to approach the Supreme Court of India under article 32 for enforcement of 'Fundamental Rights' was described by Dr. Ambedkar as the soul of the Constitution. It has been held by the Supreme Court of krdia that the remedy under article 32 in the Supreme Court and the corresponding article 226

remedy in public law, for enforcement of the fundamental rights, distinct from, and in addition to, the other private law remedies available on the same cause of action, apart from liability for punishment under criminal law of the individual violators of those rights for the resulting offences; and, that the doctrine of sovereign immunity available as a likely defence under private law, is inapplicable to the public law remedy, based on strict liability for enforcement of fundamental rights. The expansive horizon of judicial review, limiting the operation of the 'political question doctrine' within strict political thicket, with judicial review forming a part of the basic tenet of rule of law, has its own impact on the mind of the people of India.

in the High Courts, is a

Proper court management by adopting methods of advanced technology is

now in vogue. Computerisation has already shown positive results in the Supreme Court and the facility is being extended in a phased manner throughout the country. Clubbing of like cases and listing them together is a regular feature. Streamlining the existing legal process to reduce case-liIe is a serious method already adopted in the courts. A fixed time-frame for hearing of cases and adherence to it is also found helpful. Greater emphasis on pre-trial procedure provision to reduce the number of cases for trial is also desirable.

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The Citizen and

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The setting up of the National Judicial Academy for pre-service and in-

service training of judicial officers is a step in this direction. A proper scheme for continuing legal education of members of the Bar is under contemplation.

ln addition to the above,

emphasis has to be

laid on certain lasting

remedies to help at the base level. Improvement of legal education to have better trained lawyers and to ensure a minimum level of quality at the entry point of the Bar is already on the anvil. Necessary steps in that direction are being taken. Curbing frivolous litigation and strictness to ensure admission of only proper cases in courts is a duty which has to be performed jointly by the Bench and the Bar with great vigilance. This will ensure utilisation of the court's time only for those cases which need to come to the court. These are some of the remedies to improve the justice delivery system and

to make the rule of law effective and meaningful as envisaged in

the Constitution. Dedicated effort by every member of the legal fratemity responsible for proper administration of justiceis a prime need and the surest remedial step to reduce Law's Delays. This is necessary to retain the abiding faith of the people in the working of the legal system and to prevent them from resorting to extra judicial remedies for redressal gf grievances and resolution of .their disputes which results in erosion of the Rule of Law. In the ultimate analysis it is the quality of men who work the\ legal system, and their devotion to thl task which will determine the end result. Every person has to undertake the task in the spirit of a winner.

There can be no doubt that several improvements in the system are necessary but our emphasis should be firore on the working of the system and not merely its mechanism. Irrespective the mechanism, unless the commitment and efficiency of those who work the mechanism improves, a better

of

mechanism alone will not help solve the problem. The need, therefore, is no doubt to improve the mechanism wherever necessary but more than that to improve the work culture at several levels so that optimum benefit is obtained. Supreme Court Experience

The recent experience during the nineties (1990's) of the working of the Supreme Court is eloquent proof of the correctness of this belief. At the begrnning of the nineties, the arrears in the Supreme Court exceeded 1,20,000 cases. There has been considerable reduction in the backlog with the aid of better court management techniques and advanced technology. In the Supreme Court, the total pendency as on l January, 7992 was 1,04,936 and on 1 January, 1993 it was 97,536 according to the hyphenated numbers in vogue till then. This came down to 58,794 as on 1 January,1994 with the introduction of a system of statistics according to actual cases. Computerisation was also introduced along with clubbing of similar cases, involving the same point for decision so that they could be heard together and the comdron point disposed of by a common judgment. Thereafter, variation on facls in different cases merely required application of the settled law on the porrrt which reduced the time of hearing and also the possibility of any confiichirg decision. A large number of cases could be disposed of together in this manner which also resulted in certainty of

ludiciary and lud.icial Reforms

the law for application not only by the supreme court itself but thereafter in on the same point in the High Courts, and in the subordinate courts. Continuance of the same bench without frequent changes therein with a time frame for arguments of counsel also enabled reduction in the time taken for hearing of cases and introduced greater certainty. The figure of pendency was further reduced to 54,993 as on 1 Novemb er, 1994 as a result of improvedcourt rnanagement techniques. As on 1 january, 1995 it was reduced further to 52,950 and on 1 January, 1996 it was 37,168.The figure of pendency as on 6 September, 7996 was only 26,673 out of which admission matters were 8,569 and regular matters 18,104. This reduction had been made in spite of the total institutions in 1994 being 42,046 and in 1995 being 51,443 which is nearly twice the average anmrai institutions in the preceding years. Full utilisation of the court working hours and the commitment to reduce the arrears with the existing strength o1 judges facilitated by cooperation of the Bar and the existing infrashucture except for the computeiisation in the Registry, brought down the pendency to a cases

total of approximately 19,000 on 1.1.1998. That progress continues io

be

maintained. The fact that the strength of judges in the court was not always fuIl, did not impede the progress. It is significant that the annual filing in the Supreme Court during these years averaged approximately 35,000 going up to 49,000 at one time which indicates that the pendency now is much less than one year's filing. If this could be done in the Supreme Court, there is no reason why it cannot be done in the High Courts and the subordinate courts. No one can reasonably claim that quality of work in any other court is as high as that in the Supreme Court to require greater time for hearing and disposal of cases.

If a similar beneficial result has not been achieved in anv other court, the blame cannot be on the process. The fault perhaps lies in its exercise. proper functioning of the PIL cell in the court and listing only of genuine cases

according to directions of the chief justice of the court is the need to rationalise and channelise the process. Streamlining the procedure to ensure proper functioning is imperative. High Courts

The High Courts are pivotal to the Indian judicial system. It is the High Court which is conferred with the power of control over the sub-judiciary by article 235 of the Constitution. The clear indication is that the High Courts have not only to manage their own affairs but have also to guide and supervise the subordinate courts in the performance of their duty. There is no method more effective for exercising control than self-practice. The first remedy of the existing sifuation is for the High Courts to follow the example of the Supreme Court and transmit that message to the subordinate courts for sincere emulation. The High Courts have, therefore, to play a very significant role in this direction. A uniform method of court management in all courts at different levels throughout the country is necessary. Docket management in the Supreme Court which has achieved salutary results should be an incentive to the courts below. Unless the High Courts function properly and effectively, they cannot discharge effectively their power of control over subordinate courts. There is need to

54

The Citizen and

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streamline the functioning of High Courts and to coitrol the docket explosion' Mere addition in the number of judges is not the complete answer' It is time to ensure that the available strength of the judges delivers what is expected of them. In short, High Courts should set an example to subordinate courts, of what the expectation is. Constitution of joint committees of judges and lawyers for better court management through active cooperation of the Bar may achieve better results. The mechanism should notibe left to the ad ftoc measures adopted in different courts, but should be part of art organised programme. Proper court management with the rlse of advanced technology and active participation of the Bar with its fulI involvement would be an effective step towards reducing Law's Delays. The judges must become role models and lead by example.

Full utilisation of court working hours by everyone and absence on a working day only for unavoidable reasons must be guiding rule. Discipline requires that vacations be utilised for clearing pending work and that every court ensures that there is no case pendurg for delivery of judgment when the court reopens. There is need to empower the Chief Justice,/Principle Iudge of the court to enforce this discipline. Increase in working hours and reduction of holidavs

/

vacations is needed.

Casual leave taken according to conventiory without any provision in the rules, should not be availed of for leaving the station or attending to a preplanned activity, and should be confined only to unavoidable and urgent local needs. Authority in the hands of the Chief Justice to enforce the discipline is called for. There are the steps directly related to some of the causes of Law's Delays, and are, therefore, matters of public concem which cannot be left to the sweet will of individuals thus reducing the court working hours considepably. There are increasing instances of delayed judgments, delivered long after conclusion of the hearing. There are instances of some judges not delivering judgment till retirement, after keeping it reserved for an unduly long period. Such cases require rehearing before another bench resulting in greater delays and further costs. The sifuation has not improved, in spite of resolutions made in the Chief Justices' Conference. Some enforceable rule to tackle this sihration is called for.

Most of the above problems were meant to be kept in check in the superior courts by self-regulation and intemal discipline. That method does not appear to be effective any more. The chief justlces who have no direct authority to enforce control are helpless as the conventions are no longer being respected. It is, therefore, necessary to think of dewising suitable methods for enforcing much needed discipline, in keeping with the dignity of the high office of the suPerior judges. After all, any new provision made to achieve the desired result will operate only upon someone who chooses to ignore the salutary conventions and discipline implicit in the high office. Such a move, therefore, need not trouble the judges as a class, most of whom practice self-discipline.

ludiciary and ludicial

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55

, A number of simple and easily implementable steps can go a long way in reducing the current backlog of pending criminal cases and facilitate the realisation of the constitutional right to speedy and fair trial. It has been the experience of h.rdia that around 30-40 per cent of all pending cases could be disposed of with a little initiative. These iases constitute what may be called "artificial arrears". In most such cases, the need and compulsion for a fuil trial and conviction may have been exhausted for various reasons. Moreover, in many such cases the accused may have already suffered enough punishment as an undertrial prisoner; in fact, sometimes more punishment than what would have been due if he were convicted. Experienced lawyers can be appointed on short-term engagements to look into long pending cases concerning petty or minor offences and take appropriate steps. Such public service by senior lawyers, even voluntary would be readily offered and diligently carried out. For statisticai purposes, every case has the same value irrespective of its importance. Cases relating to petty offences and those which are compoundable have the same numerical value. There is dire need of early disposal of these cases. Methods which enable the performance of this exercise are long overdue. Such cases couid be classified, separated and entrusted for disposal to the special magistrates appointed only for this purpose. Some experienced members of the Bar could be invited for a fixed term and a specified number of cases could be allotted to them for disposal within a stipulaled time. Thrs wouid free the regular courts to deal with more serious matters which require greater attention. This would also reduce the existing workload on the current strength of judges. Encouraging the compounding of offences permissible in law wouid also help where the offence is more private in nature. Award of compensation to the victim may be treated as sufficient punishment to the offender in many cases. Decriminalizing of minor offences shouid also be considered. A

classification of cases based on their nature and separation of the ostensible frivolous iitigation would itself reduce the pendency by nearly half. In addition to members of the Bar, retired judges could also be invited to dispose of long pending and petty matters so that regular courts are left free to deal with fresh cases.

The time has come when archaic laws and those which have ceased to be either effective or to service the purpose for which they were enacted are scrapped. This will automatically reduce the number of cases relating to those laws. Procedural laws need to be looked at closely to simplify the procedure retaining essentials of natural justice.

The Alternative Dispute Resolution (ADR) mechanism needs to

be

strengthened. The experiment of Lok Adalat to decide certain categories of cases has been very useful.

Petty cases which do not involve adjudication of law points have been disposed of in Lok Adalaf; accident claim cases and land acquisition cases have

56

The Citizen and Judicial Reforms

also been disposed of in large numbers tn l-ok Adalats; matrimonial causes and other family disputes in which conciliation is possible have been settled in Lok Adalats; thi successful experimint of Ink Adalats has now been given stahltoly

form.

Conciliation, mediation and arbihation also needs to be encouraged' Strict enforcement of pre-trial procedure in CPC would reduce the time of trial and extra work at laier sta$es. The cumulative effect of all such methods would be considerable.

A number of concrete measures could be introduced such

.

as:

Amendment of the Criminal Procedure Code to facilitate appointment of 'special' or 'honorary' magistrates on a short-term basis for trying petty criminal matters which clog up the cfiminal justice system;

o Introduction of a system of 'plea bargaining' in certain cases; e Compensation for victims of crirnes; o Decriminalization of some offertrces; o Fostering more and effective collaboration beLween NGOs

and governmental agencies and promoting the work of NGOs by providing means, assistance and infrastructure;

o Introduction

of new techniques for better case-management, including increased use of computer and other information technology devices;

. . .

Stricter regime for allowing remand; Protection of witnesses;

A direction for completion of ctiminal cases in six months. Judicial Activism and its Impact on the Criminal Justice System The expression justice delivery system, embraces within its fold not merely the judges of the court, but also everyone who is involved in the process of implementation of the law. The role of the judiciary, of course, is primarily to ensure the most effective and proper implementation of rule of law. This process or this activity of the judiciary is merelya facet of judicial review. Judicial review was first conceived, in the United States by Chief Justice Marshall of the U.S. Supreme Court in 1803 in Marbury v. Madison, but really the seed of that was sown two centuries earlier in 1608 by Lord Coke tn Boilham's case' The corlcept was introduced at that time and it started growing while some treated it as sacrilege. There was a similar or, may be, a greater hue and cry than what we hear today about the judiciary's role. Judicial review which was supposed to be something beyond the scope of judicial functions, has come to be accepted as an essential function of the judiciary, so much so that it is now treated as a basic feature - a part of the basic structure of our Constitution. "Judicial activism" is a facet of judicial review' If implementation of rule of law which is the bedrock of democracy, is the basic responsibility of the judiciary, then it is the obligation of the judiciary to see that every aspect which is essential for proper irnplementation of rule of law ought to be taken care of'

Judiciary and ludicial Reforms

The Constitution itself approves it. The obligation of the judiciary is to ensure

that not only the judiciary does its work, but also that every agency or instrumentality which is involved in the implementation of law, functions effectively. Aberrations must be corrected. If it is not functioning, then it must be made to function. Judicial activism must necessarily meary "the active process of implementation of the rule of law, essential for the preservation of a functional democracy, not merely a tottering democracy, but a functional democracy". Since the administration of justice is entrusted by the Constitution to the judiciary it is the primary obligation of the judiciary to ensure that this happens. To put it differently, it must mean an active justice delivery system, i.e., active functioning of the process of law, to its logical conclusion - the process throughout being the obligation of the judiciary to manage. This alone can satisfy the requirement of the rule of law.

Now, if this is judicial activism, then it is not difficult to see that every agency, which is involved in the proper functioning of the criminal justice system, is to be involved; in what is called judicial activism. Every case which comes uirder the criminal justice system, has an essential element of public interest, because crimes are against society and the state. This is so, distinguished from private wrongs which may be involved in civil limitation. Even in some constitutional matters, the infringement may be of a fundamental right only of an individual, but when there is a violatiory or infringement of the fundamental rights of a section of the people or a large section of the people or the nation as a whoie, the element of public interest involved therein is far greater and, therefore, the significance is naturally bound to be far greater. If that is the significance, then the need to stop it and the obligation of the judiciary to ensure that the proper thing happens is even greater. It is for this requirement that the judiciary riltimately has been given very wide powers by the Constitution itself. The obligation of the judiciary for the implementation of the rule of law begins from the stage of detection of the crime itself. The next stage is investigation, and then the prosecution of the offender and thereafter only comes the court when the trial takes places. Therefore, the period from the time of detection of crime till conclusion of the trial, is covered within the ambit of implementation of rule of law. Every agency which is involved at any stage of this process must, therefore, partake its responsibility of performing actively so as to provide active implementation of the Rule of Law, without which there cannot be a functioning democracy. At the initial stage, therefore, at the very threshold comes in the police force. The role of the subordinate judiciary comes in much later only when the investigation is complete and the case is brought to the court. Unless the case comes to the court, the judiciary does not come into the picture at all. If in the performance of its task of detection, investigation and prosecution of the offender, the agency malfunctions or fails to function, then, ir there no remedy under the Constitution and the scheme of the law? The judiciary cannot say that they are helpless and there is nothing they can do till a case is actually brought before them. This is not a proper and ftlll appreciation of the role of the judiciary. As the obligation for implementation of the Rule of

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The Citizen and

ludicinl Reforms

Law is essentially that of the judiciary, the judiciary cannot remain a silent spectator, particularly when the concept of locus standi has been widened and liberalised. If there is a gross violatiory or infringement of fundamental rights of is so great, that it affects the a section of the people or violation or entire nation - the whole of the Indian polity, then it can be said that every citizen of the country is not involved in it and he does not have the necessary locus to bring the matter to the court. Access to justice is a guaranteed fundamental right under article 32 of the Constitution and the Supreme Court is further emr:owered bv the framers of the Consti tution bv article 142 to make anv order which is just in the cause. The obligation of the judiciary is wide enough under article 32 read with article'l-42 of the Constitution to ensure full, effective and proper implementation of the Rule of Law in every sphere so as to ensure preservation of a functional democracy, in greater public interest. It is not optional, but obligatory because article 32 itself is a fundamental right. Therefore, the doubting Thomases who dntertain the thought that the judiciary is overstepping its boundaries, may bhush up their understanding of the constitutional scheme by which the judiciary is empowered to make the erring agencies or non-functioning agencies function for the purpose of proper implementation of the rule of law.

Ambit of Mandamus To illustrate, if there is a crime, the magnitude of which is such that it affects a large section of the people and often not merely a large section of the people, but the nation as a whole which is going to ultirnately adversely affect the Indian polity itself, then is the judiciary powerless to correct this aberration and make that agency work, whose duty is to perform this function? The iudiciary can give directions of any type to suit the situation by virtue of article 142 of the Constitution - directions in the nature of mandamus or any other suiiable direction which is necessary to tnake the agency work well. After all, mandnmus is a direction to a person or agency to perform its legal obligation. A public officer who holds a public office or has a public duty to perform, and fails to perform his duty, can be compelled to do so by issuance of a mandamus.

Let us assume there is commission of a crime of some magnitude and there is at the very first step a default in the detection of the cdme or even if it has been

in the investigation thereof and in its logical prosecution. If on investigation, adequate material has been found to justify prosecution, and if that is not done by that agency, then by a mandamus the judiciary would compel that agency to perform this task and take it to its iogical conciusiory so that if on a proper investigation a case is made ouU it must be put up before the court and then commences that part of the judiciall process in court which has to punish the accused if he is found guilty and acquit him, if sufficient legal evidence is not found to establish the charge. The presumption of innocence is continuing, but this process has to be completed, whenever there is reasonable suspicion. Ordinarily, in a proceeding for mandannus, the direction is issued, and the direction is to compel performance of the duty. That is the ordinary nature of mandamus. But if the situation arises, as is the public perception in recent times, detected, then

.

ludiciary and Judicial Reforms

then even during the course of performance of this function, the judiciary may have to monitor without entering into the merits of the case so that the on-going process is performed objectively, honestly and fairly. The judiciary is empowered to ensure without going into the merits that the performance of the task of investigating the crime is done'honestly and

fairly. To illustrate, it is something like combining in one proceeding, the process of trial of a suit and execution of the decree which may be passed at the end of the trial. It is not that the law merely requires adjudication and passing of a decree and then forgetting all about it. If the decree is not executed, then the next proceeding which is called the execution proceeding is started to ensure that the decree is satisfied and the court's obligation remains till it sees a successful execution of the decree. Why can't these two proceedings be combined? Instead of two proceedings we may have one, to ensure proper functioning and, therefore, ultimately it is a co-ordinated approach of the Investigating Agency, the Prosecuting Agency and the Trying Agency, which brings about the end result. One must bear in mind that one of the basic tenets of our legal system is the benefit of the presumption of innocence of the accused till found guilly at the end of a fair trial on legal evidbnce. So, this entire process, part of it directly and the rest of it indirectly, is within the domain of the justice delivery system and in it are included, not merely the judges who sit in the court, but everyone involved in the process till the matter comes to the court and even thereafter with sentencing and heatment of the convicted offender. All this is part of the integrated process and in the end after conviction, some of the rights available to a common man are taken away, but that does not mean he ceases to be a human being. Even a convict has basic human rights. Only those rights which need to be restricted because of his incarceration are affected, but the remaining are not curtailed by any process of law.

Prevention of Crime Every individual constitutes a part of the human resources of a nation. A person may have committed a crime for various reasons, but then he should not be written off. The effort to correct him should be on, so that he can continue to be a useful member of society. Therefore, he needs to be rehabilitated, so that he can contribute to the augmentatiory growth of the national wealth in the form of human resources. All this ultimately, is a part of the process of implementation of the rule of law. This last part has significance in the area of prevention of crime. Ultimately, the maintenance of law and order, the state of the society, depends on the kind of law and order which prevails in the society. A reformed criminal even after his conviction is'orie criminal less in the society which helps in prevention of crime. Prevention is significant not only in the area of medicine. The old adage, "Prevention is better than cure" is equally applicable in crime control in society. If we reduce the number of criminals, it has a ripple effect in a large area. There is one person less to guard thereafter, one person more to contribute to society. Let us hope some day when the law and order sihration improves, a large police force would not be required for security arrangement. If such a force is not required in that strength to provide securibl to the protected

60

The Citizen and Judicial Reforms

persons, then they would be available mpre for doing that for which they are primarily meant. We were used to see police ordinarily identify bad characters in a locality and keep an eye on them. At that point of time individuals did not need to be protected. The bad characters or the criminal elements had to be identified and watched; that itself was enough. Now it is the other way around. It may not be possibie to keep an eye or identify every person of that category. So the shift is to identify people who in people's perception, or in the perception of the state must be protected at all cost and thus to protect them. One hopes that a day will come, when every person who iS supposed to be needing protection is able to walk freely and policemen are left to do the iob they are primary meant to

with the heatment, rehabilitation and reformation of the offender is closely connected with this aspect, so that what is needed is an integrated effort, after the formulation of an integrated policy, covering every facet which yields results. The criminal justice system is not donfined merely to the apprehension, trial and punishment of the offender but also covers the area of prevention of crime to the extent possible. The three main instruments of the criminal justice administration are the police, the judiciary, and the prison and other correctional institutions. The last part of the criminal justice system, which deals

As for specifics, the three main areas of focus in terms of penal reform in the region ought to be:

.

Independence of the police.

o Reduction of the backlog of pendirrg cases. o Reform of prison management and conditions. In the U.K. the power of the judiciary is not

as great as it is in our. constitutional scheme. In the U.K. Parliament is supreme but in our country the Constitution is supreme. Here the ultimate sovereignty vests in the people. Lord Denning, while dealing with the powers of the Commissioner of Police in respect of investigation into the crime and putting up an offender for trial, indicated \ow much insulation is required for a police officer' from any extraneous influence including the influence of the person who may be the departmental head in the form of even a minister and pointed out, "I have no. hesitation, however, in holding that like every Constable is the Secretary of the State, I hold it to be the duty of the Commissioner of Police as it is of every Chief Constable to enforce the law of the land; He must take steps so as to post his men that crimes may be detected and that the honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted and if need be, bring the prosecution or see that it is brought, but in all these things he is not the servant of any one, save of law itself. No Minister of the Crown can tell him that he must not keep observatiOn on this place or that, or that he must, or must not prosecute this man or that mary nor can any police authority tell him so... A question may be raised as to the machinery by which he could be compelled to do his duty. On principle, it seems to me that once the

Irrdiciary and ludicial

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61

duty exists, there should be a means of enforcing it. This duty can be enforced I think either by action at the suit of the Attorney General or by the prerogative order of the mandamus". These are not new thoughts. This was the position in England. Under our constitutional scheme the requirement cannot be any less and the authority of the police for the implementation of rule of law can be no less. This is a fair indication of why what the police force does, what the prosecuting agency does, for detection, investigation and prosecution, is as much part of the judicial process and, therefore, included within the expression iudicial activism. Unless there is active discharge of this role by each one of us, not merely the courts, it would be incorrect to say that there is judicial activism in the true sense^ It is incorrect to say that judges are persons who are wholly unconnected with everything else. Of course, a degree of aloofness which one strongly advocates is required by the judges, for obvious reasons. It is incorrect to think that judges alone matter for the purpose of implementation of the rule of law' Or that independence is requireil only for judges and not for others. The police force plays a complementary role. There can be no reason why a police officer is not required to be, or is not expected to be as fiercely independent as any one of the judges. The need is equal, because ultimateiy if it does not detect the crime, does not investigate it properly, the stage where the judges come in won't arrive. That is the kind of role of the poiice force. So serious thought is required to examine, why it is that the image is not matching. Well, there may be faults of society, but then we must identify the area and the causes which contribute to a different image. In this connection a little closer look at the true role of the police force may be required. The policemen perform a statutory function and are governed in all their actions by the provisions of law. According to the Code of Criminal Procedure, the formation of opinion as to whether or not a person should be prosecuted, is that of the officers conducting the investigation. This process is required to be done objectively, fairly and honestly as the conduct of the trial itself by the judge. This independence of the investigating officer is also precedented and judicialiy recognised. There is need to act with conviction and without further delay upon the recommendations contained in the Report of Police Reforms Commission, which as long back as 7979 proposed a number of critically needed remedial measures, to prevent interference with and misuse of the police by illegal or improper order, or Pressure from political, executive or other extraneous sources.

The Supreme Court made an indepth study of this matter in connection with the functioning of the,Ceniral Bureau of Investigation and has issued certain directives to insulate the Central Bureau of Investigation from any political or other extraneous influence. There does not apPear to be any wiliing acceptance of the same. Moreover, recent exPerience has shown that even the CBI is so used to the existing culture that the insulation provided to it by the Supreme Curt did not yield practical results. The need, therefore, is not merely to improve the system but also to improve the work culture of the police force and

The Citizen and Judicial Reforms

its mindset. Attiiudinal change is

necessary. The National Human Rights Commission also has made recommendabions in the form of guidelines and they need to be observed by ttre police force faithfully.

Human Rights and Penal Reforms

The inculcation of human rights and the role of the National Human Rights Commission are other essential components for anv measure of oenal reform. Penal reform cannot be undertaken in isolation irom the norms of human rights. Manv of the intemational human rights instruments have not been incorporated into our domestic laws by suitable enactments and this needs to be done without delay. Judiciai pronouncements have incorporated some of these international human rights instruments, but instead of such indirect methods appropriate legislation is the need of the time. There is a need for Human Rights Commission in every State and Counhy in the region. The Indian experience has already established its importance ani pre-eminence in co-ordinating the recognisable and commendable work being done by NGOs in areas concerning human rights. The National Human Righti Commission works in conjunction with the existing judicial structures. In cises of importance the supreme Court frequently makes a reference for investigation to the Commission.

Thus, the National Human Right$ Commission can and does play an important role by co-ordinaiing and monitoring efforts of both civil and pirblic bodies and agencies. secondly, by facilitating some aspects of the judicial work, the Commission can augment access to jr.istice and offer remedies for violations of rights.

Finally, in addition to using the existing formal machinery, the NGOs should be fully involved in penal reform and given govemmental support for their work. There is need to give the NHRC and SHRCs a constitutional status integrating the institution in the constitutional scheme. The correlation between them should be as of the judiciary that is, NHRC,s role akin to that of the supreme Court and of the sHRC as that of the High Courts. NHRC should be the apex body under the umbrella of wllich should be al] other commissions, such as sHRCs, NMC and NCW etc. The exact mechanism is a matter of detail. It is also necessary to reflect the complimerrtarity between the roles of the NHRC and the judiciary.

Role of Government

The statistics show that there are at present more than 30 million cases pending in the Indian courts out of which approximately 20 million are civil cases and 10 million criminal cases. The expenditure on the judiciary in India is only 0.2 per cent of GNP compared to 4.3 per cent in countries fike niitain which shows the govemment's apathy towards the administration of justice. The role of the govemment can be easily assessed from the fact that the government is a party to most of the criminal cases as also in the large number of civil cases. The government can, therefore, contribute greatly to the solution of the problem. It is

ludiciary and Judicial

Reforms

63

common experience that a large number of cases with no merit are taken to the higher courts in appeal or revision by the govemment and this is done mechanically without proper scrutiny whenever the govemment suffers an adverse decision.

It is also a matter of common experience that the machinery of the government for the conduct of these cases at every level is often not the best which it can have but is below average. Appointment of lawyers to represent govemment is based quite often on extraneous or political considerations and not on merit. The phenomenon is all pervasive and repeated comments by the courts have had no impact on those who are responsible for making these appolntmen ts.

In short, there is no accountability for anyone in government who facilitates the continuance of this situation. This area also requires serious attention. Closer scrutiny made objectively of the performance of the people responsible for conduct of the cases on behalf of govemment with some method of enforcing the accountability of those responsible for lapses can no longer be deferred. Role of the Bar

The Bar also has a significant role to play in the judicial system. Equal commitment of every member of the Bar is necessary. The first requirement is to ensure that every member of the Bar is well equipped to discharge his duties effectively. The requirement, therefore, is of proper legal educaLion so that entry to the Bar is only of those who have the requisite academic background for practice. The necessary-practical training on entry into the Bar to apprise them of the practical aspects and train them to function in the courts is necessary. An integrated programme of legal education of this kind will automatically eliminate casual entrance into the Bar and confine its membership to those serious in the practice of the legal profession. No other profession permits a casual entry without the minimum required expertise. This is a duty owed also to the litigants who must be assured of a minimum level of legal expertise in the members of the Bar from amongst whom they choose their co"unsel. A right step

in this direction has been taken by the Bar Council of India. There is a simultaneous need for closing down law colleges which do not fulfil the necessary standards for imparting desired level of legal education. This action itself would ensure greater cohesion and credibility of the Bar as a whole. Effective measures by the Bar Council to inculcate ethical standards in the practice of the profession by each member and continuing legal education in the form of refresher courses would help members of the Bar to update their knowledge and keep abreast of the advancement in law. Greater professionalism practised by the members of the Bar would automatically bring in greater order in the functioning of the Bar and thereby of the courts. This alme .can ensure that each member of the Bar rightly qualifies to be an officer of the court with as much responsibility in the administration of justice as the judge

himself.

64

The Citizen nnd Judicial Reforms

The trend of lawyers' strikes resulting in closure of the courts and denial to justice to litigants is disturbing. Even assuming the demand of lawyers at a given time to be legitimate, it is necessary to devise some other mode of protest instead of closure of the ctourts. A news item tn The Times of India dated 20 December, 1994 under the headlng "Court closures take a heavy toll of cases" gave statistics relating to the subordinate courts of Delhi. The closure of subordinate courts in Delhi then for one day out of every four days during the preceding four years resulted in 10,000 cases being pushed back by at least four months on each day so that the strike frot'n 13-16 December, 1994 resulted in the adjoumment of over 35,000 cases. Withouit making any comment in the matter of strikes by lawyers and assuming for the present Purpose that their grievances may be legitimate, one can easily visualize the setback in the functioning of the subordinate courts and the High Court during the strike periods. To say the least, the adverse impact on the iitigants who suffer for no faults of theirs, is startling. The result, when the pendency is already considerable, is certainly not one which even lawyers would like. But that is the reality.

of

access

It is, therefore, time that the Bar addresses itself more seriously to this issue and devises some bettbr means of ventilating its grievances. The Supreme Court in a public interest litigation has addressed itself to this issue and made certain orders which need serious consideration and compliance by the Bar. Any action of the Bar which results in denial to the litigants of access to justice and impedes speedy justice has to be a matter of serious concem to the Bar itself.

A very useful book - Professional Conduct and Adaocacy by K.V. Krishnaswami Aiyer is a collection of lectures delivered to the apprentices-atlaw of the Madras Bar Association. It is worthwhile to refer to the Foreword to the Second Edition (1945) of this book by Sir Maurice Gwyer, former Chief Justice of India. In the Foreword, Sir Maurice Gwyer after quoting the author who said, "Every member of the Bar is a trustee for the honour and prestige of the profession as a whole", proceeded to indicate *re utility of that book thus: .The student or young adaocnte who reads this book wiII learn why that is He zuill also understnnd better than he did before that the law is a great nnd noble profession, whateier its critics may say and Inw itself a great and noble science, the king of kings, as the sacred books of this country call it; and he will, I hope, determine thnt neaer by any act or word of his wiII he show himself unworthy of the great tradition whirh he has inherited and which the author of this book puts so plainly and conztirtcingly before him" . "

..

so.

The Bar is the feeder for ttie Bench. To have good judges, it is necessary to have good lawyers. No judicial system can be truly effective unless the Bar and Bench are so constituted. lndicating the tnaits essential in a judge, the Allahabad High Court Post-Centenary Silver Jubilee Cgnmemoration Volume at the begin4ing quotes from the ancient texts ais reminder thus:

.

"let the king appoint, as members pf the courts of justice, honourable men of prooed integrity, who are able to bear the burden of administration of iustice nnd who are weII ttersed in the sacred laws, rules of prudence, who are noble and impartial towards friends or fues" .

.

ludicinnt and lrdicinl

Reforms

05

To my mind, the main requirement of an effective and efficient judicial system which can ensure equal justice to all and provide speedy justice is to have the Bar and Bench composed essentially of such persons. The operators of the justice delivery system must be of this kind so that the working of the system is efficient and most productive. Access to Justice

The important thing is the public perception that everyone with

a

legitimate grievance has equal access to justice, irrespective of the means he has to ventilate the grievance, and decision making depends on the merit of the claim and not the means of the litigant. It is equaliy necessary that there should be speedy decision of the cause and frivolous litigation should be controlled. The final decision should be made while it remains a live issue. This alone can achieve eqrlal justice for all. Procedural laws should be the handmaiden of substantial justice and not pitfalls which can be misused to delay justice. Pretrial procedure should be extensive and fully utilised to ensure that a case is hsted for trial only of issues which cannot be settled earlier. To avoid unnecessary delays, cost of adjournment, when essential, should be effective and real. Revision of cost strttcture is necessary to make it realistic and to make the loser pay *re actual cost incurred by the victor. Legal aid should be dependent on the merit of the claim and not merely on the inability of the litigant to afford it. Better management of the Legal Aid Scheme is needed.

Lawyerst fees need to be regulated and the schedule of fees revised to enabie availability of services of lawyers according to the requirement of the case. A scheme should be devised to check the mercenary trend in the legal profession and to enable provision of a lawyer according to the requirement of a case and not the means of the litigant engaging him. Sorne kind of control of the corut may be necessary to make the scheme effective and workable. May be, partial nationalization of legal services is called for. Conclusion

The legal iraternity has a great responsibility to ensure the proper functioning of the judicial process to achieve the true object of justice for all. The legal profession has to be rationalised and channelised to harness the forces for which it has a changing role to meet the current societal needs. Judges have a duty to perform which is even more onerotls to keep the judicial ship afloat on an even keel. It must avoid making any ad hoc decision withotrt the foundation of a juristic principle particularly when the decision aPpears to break new ground. The judgments must be logical, precise, clear, sober and rendered with restraint in speech avoiding to say more than what is necessary in the case. It must always be remembered that a step taken in a new direction is fraught with the danger of being a likely step in a wrong direction. In order to be a path breaking trend it must be a sure step in the right direction. Any step satisfying these requirements and setting a new trend to achieve justice can alone be a new dimension of justice and a true contribution to the growth and development of Iaw meant to achieve the ideal of iustice.

66

The

Citizen and ludicial Reforms

Rampant corruption is something which does not require to be shown. Every one of us knows it, everyone of us 6ees it, every momenf of our life, in some form or the other. The obvious solution is the restoration of values because it is the degeneration of society which is composed of all of us put together which is at the root of the present dismal scenario. We need something like a renaissance of values. This alone is the answer beca*se ultimately the worth of a nation is the sum total of the worth of the individuats comprising it. That is what John stuart Mill said long back. our individual worth has deteriorated so much that it is no wonder the nation has reached an all time low in morality. Effective measllres for strengthening the working and ethical component of all branches of the judicial system is necessary. The accountability of persons contributing to law's delays including judges and an effective mechanism for enforcing justice, taking care to prevent its misuse has to be devised. In the final analysis, it is the worth and the dedication of the operator of the mechanism which will matter and that is an area which needs to be strengthened along with improvement of the mechanism wherever necessary.

Some

of the effective remedies requiring serious

consideration for

implementation appear to be the following;

1. The insulation of the police from extraneous

pressures; and ensuring its

independence like that of the judiciary.

2. Separation of the investigation wing from that of prosecution. 3. Strategies for reducing the huge backlog of criminal cases in courts. 4. Adoption of a system of Honorary/Special Judicial Magistrates. 5. Adoption of a system of plea bargaining as recommended by the Law Commission of India.

6. Adoption of a system of comppnsation for crimes on the analogy of crim ina I injuries compensation.

7. A massive decriminalisation of

offences so that thev may be dealt

with

as comparable wrongs.

8. Framing and implementation

of appropriate pre-service and in-service training programmes for the judges at all levels.

9. Better

case management techniqtres by

improving court administration

through computerisation.

10. Appointment of experienced lawyers practicing on the criminal side as part-time or fixed-term judge$ on the pattem of 'Recorders, and 'Assistant Recorders' in Englartd and allocating a fixed number of cases to each of them for disposal. 11. The procedure providing for indicating in the order of remand itself the period after which the undertriial is automatically entitled to bail on terms specified by the Supreme Court of India in its decisions. 12. A fresh look at the provisions for selecfion and appointment of judges at all levels including the constirution of an All-India ludicial Service

Judicinry and ludicinl

R{orms

67

comparable with the best service in the executive branch to attract the best available talent.

13. Proper utilisation of full court working hours on each working day by all judges and confining absenteeism only for avoidable reasons. Fixing of time limit for delivery of judgment. 14. Increasing working hours of the courts and reduction in holidays to the extent feasible, keeping in view the nature of judicial work. 15. Simplification of procedure in civil cases and reduction in number of appeals.

16. Improvement of prison conditions and better machinery for monitoring thereof.

17. The aim should be to have a system which ensures that the trial of every criminal case should be completed within a maximum period of six months and the maximum period of detention as an undertrial even for the most heinous offence should not exceed a period of six months. 18. Greater financial grant to the judiciary with requisite financial autonomv is necessary. It may be advisable to fix a tirne frame for every district depending upon its needs and authorise the Chief Justice of the High Court to take such steps as deemed fit to liquidate the arrears. 19. Promoting NGOs for victim assistance and service and for the protection of witness in collaboration with the police system. 20. The Intemational Covenants applicable in the area of Criminal Judicial Administration may be treated as guidelines indicating also the targets to be achieved. Domestic laws may be enacted for the implementatioa of these norms.

21. The prisons/homes where females and children are kept under any category should have an envitonment conducive to their dignity and growth as individuals and their management should be by persons specifically trained for such purposes with an interest in reform and a sensitivity towards it. Penal reforms are long overdue and should be urgently undertaken. However, reform alone will not do, unless those who work the reformed machinery/system are sensitive to the needs and objectives of the criminal justice system and have the requisite ability to discharge their duty. That must also be ensured.

There has been considerable debate for long about the need to solve this problem. The time has now come to take some urgent effective measures to do so. It is possible to achieve the desired result with full dedication and commitment. The Supreme Court of India in the last decade has shown the way which has

instilled hope even in those who were clmical of such a possibility in the Supreme Court earlier to that. If this could be done in the Supreme Court where the work is bound to be the maximum and the of the highest quality needing greater attention, there is no reason why it cannot be done in the High Courts and under its supervision and guidance, in the subordinate courts.

68

The Citizen and

ludicinl

ReJorms

Sensitivity to all that we perceive, proper storage of all materials, intelligent docketing and developing the right impulses by training of the kind which heips to develop the perception ie needed to dispense justice according to law. The process is on-going in everyorte, but a conscious effort to develop the proper perception is the need. It is even more in a judge because he sits in judgment over his fellowmen. The ideal is difficult to achieve but the duties of the public oblige iudges to do their best. These are some of the issues pertaining to the area of iudicial reforms which need to be seriously and objectively debated to find a generally acceptable solution ryhich enjoys credib ity in the public mind. The working of the system must be people-friendly, which it is not perceived to be, at present. The interpretation of article 21 to. include 'speedy justice' within the scope of

'right to life' with dignity shouid be trantslated into action. This is the demand of the promise of equal justice for all in a democratic republic.

c6t&)

SOME ASPECTS OF TUDICIARY Raiinder Sachar*

The judiciary has always been recognized as one

of the co-equal

institutions of a State along with the executive and legislature. But in the recent

past, the public has magnified its stature manifold - some may feel disproportionately. No doubt a great tribute. But then it means that the courts' must be prepared to suffer a close scrutiny of its action.

The judiciary, in spite of its quite visible drawback5, continues to enj9y faith and confidence amongst the public. That is a good sign, because a democracy cannot function properly if there is lack of judicial objectivity and fairness; many kudos are given to the judiciary and most of them are vyell deserved. I am, however, taking the course of a sympathetic critic to point out the questions which require deep introspection and humility amongst the judiciary so that it can play its significant Constitutional role in our democracy. sense of

Even since 1975, when the politically motivated Transfer of High Court Judges was resorted to by Indira Gandhi Govemment, notwithstanding that in 1963 the then Union Law Minister had assured Parliament that no transfer would take place without the consent of the judge concerned, the said policy has continued to be a subject of controversial debate. The Supreme Court in Nine-fudge Bench case dishrrbingly went further in holding that not only no consent is necessary but that there can be series of transfer and in this aspect overruled the earlier view od a Seven-Judge Bench. I have never understood the logic of transferring the senior-rnost judge whose. tum has come to head the court in which he has worked for almost 10 to 15 years and wlth the functioning of which and also the functioning of lower

iudiciary he is most familiar. To transfer him out of the State to a new court for a period of one or two years to which he is a total stranger and may be not even knowing the names of his colleagues, nor even the language of State. It is a strange concept of advancing the administration of justice.

*

Former Chief Justice of Delhi High Court. 69

70

The Citizan and

ludicial Reforms

The_ policy of non-consensual transfers of High Court Judges would _ wgafen the judJciary. I, however, fourid my position getting wea"ker by the admitted misbehaviour of some of the judges, especially in the matter of their relatives practising in the same court (dhere are equaliy sterling exceptions). unfortunately, instead of promptly facing this p.oblem of misbehaviour by individual judges, a general policy of transferring one-third of all judges from their parent High courts to other High Courts was followed for the lastio manv

years.

I

am all for proceeding against those judges against whom even

a

reasonable suspicion exists. selective Tratrsfer instead of GeneraI Transfer could be understood. Foriunately the policy of transferring Judges is falling in disuse.

But instqad a more harmful ind illogical pollclihas -been e.,olv"ed by the judiciary-namely of appointing a Chief Justice from outside the court of which he was a judge.

The lack of familiarity and adjustment to new surroundings of an outside Chief Justice will and has in the past greatly reduced his effectiveness to play a leadership role, especially as some appointments of o'tside Chief Justicei hive been made even for a period of less than a year. It must be emphasized that the

High courl. exercised administrative conirol and superintendence over the whole of a state's judiciary, unlike the Sr,rpreme Court, which is only the final court of appeal in judicial matters without any administrative control. A chief Justice of a High Court, therefore, plays a distinct role. An outsider as Chief Jr,rstice, who may not even know the names of districts in the state, will not be able to play an effective role. He may willy-nilly have to rely only on the opinion of a felv select colleagues and officials which unfortunately may spell further disharmony in the High Court. Most of tLre outsider chief Justices have (I can say from fairly reliable information) been i'nerely content to do routine work and avoid taking any hard decisions even if urgently called for. All other professions give a preference to experience. Is there any special reason why the judiciary wants to devahre experience and, thus, reduce its own effectiveness. I feel that continuing the policy of general transfer of Chief Justices in these circumstances is too excessive like using a hammer to kill a fly. This policy would weaken the bulwark of our Constitution - namely, the independence of judiciary - for as Justice Douglas of U.S. Supreme Court said ,,no matter how strong an individual judge's spine, the threat of punishment -(read transfer) the greatest peril to judicial independence - would project as dark a shadow whether cast by political strangers or by judicial colleagues,,. I do not underestimate even for a moment the damage which some judges have caused to the judicial institutions by their unethical condnct, but damige control will be better done by selective tiansfer rather than through a g"treral

policy.

The transfer policy would also give rise to the syrrdrome of sycophancy and- flattery. That would be unfortunate because the High Court like ttre Supreme Court, represents the same aspects of sovereignty; the latter has no administrative control over the former, only it is a step higher in the judicial hierarchy.

Some Aspects of

lucliciary

It is in that cohtext, that I have never understood the difference in the ate of retirement between the High Court and the Supreme Court Judges. Even the constitution Commissions while recommending the three years inirease, which I approve has kept the difference in retiremenl age of the High Court and the Supreme Co,rt. In my view, the age of retireme.rfbetween th; High Court and the supreme court should be the same because there is no reaion that if a Supreme Court Judge can be expected to work properly upto the age of 6g years (the extended age recommended) why a High Court Judge is not ionsidered so equally. Almost all Judges of the supreme Court come from the High Court and it is natural tendency for the High Court judges to t'y to come to supreme court. Because of age difference stories of lobbying are not unsubstantiated. It is certainly not a desirable feature. If the age of retirement of High Court and Supreme Court Judges becomes same all this lobbying etc. will be stopped because barring a case of a Judge who may have a chanie to become ttre cilier Justice of India, there will normally be no compulsion or allurement of a state HigJr Court Judge to try to come to Delhi which certainly involves a dislocation of the Judge's family and normal pattem of a life. Though in not too distant past integrity at a higher judiciary level was unimpeachable. That certainty cannot be boasted now. The present chief Justice was so pained as to publically lament that there is doubt about the integrity of 20% of higher judiciary. But much earlier in a sorrowful note by Mr. Iust]ce 'g.S. Venkataramaiah, the former Chief Justice of India, who bewaiied, ,,fudiciary jn India has deteriorated in standards because some of the Judges are willing to be influenced by lavish parties and whisky bottles...... It wis hard to d]scard reports that every other's son/son-in-law of judge whatever his merit/lack of it, can be sure of earning an income of Rs. 10,0b0 per month (Indian post 17 December, 1989). Modest, as he was, Chief fustice Venkataramaiah would have been almost stunned, had he been properly informed that figure mentioned by him was not the measure of a month but probably even of less than a week. Therg is no quick remedy. Realising that impeachment proceedings alone

. not the answer is

National Judicial Commission recommended by

Constitutional Commission could do some salvaging. of course, details and the personnel of ]udicial Commission rreed to. be debated - I am, however, convinced that leader of opposition in parliament must be a member of the Judicial Commission. That judges need to be govemed by code of ethics is beyond dispute. American Bar Association in 1924 while laying down the cannons for lawyers was equally mindful that the character and conduct of the judge should never be objects of indifference, and similarly laid down 36 canoru foithe Judiciary. Some of the above said Canons are ,A Judge should be temperate, attentive,

patient, impartial'. Also,like courtesy and civility which says ,A judge should be courteous.to counsel, especially to those who are young and inexrp=erienced, and also to all others appearing or concemed in the administration of iustice in lhe court".

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The Citizen and

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But for pithiness and depth I do not think that one can improve what was Bacons in his Essay "Of Judicature" namely "Patience and gravity of by said hearing is an essential part of justice; and an over speaking judge is no welltuned cymbal. It is no grace to a judge first to find that which he might have heard in due time from the Bar, or to show quickness of conceit in cutting off evidence or counsel too short; or to prevent information by questions though pertinent".. .. "The place of justice is a hallowed place; and therefore not only the Bench, but the foot pace and precincts and surprise thereof ought to be presewed without scandal and corruption". But such is the irony that Bacon disgraced himself by indulging in acts of bribery and favourism, at the fag end of his career. This only highlights the complexities and the sensitivities in the matter of effective implementation of ethical Code for Judiciary.

Judicial Activism

Many rdsponsible people including a forrner Prime Minister have candidly, though politly while not questioning the utility of Public Interest Litigation, wanted rationality to be brought into it. Surely, he said, courts cannot run the Government. He, therefore, suggested the society and Parliament to discuss the issue whether in the process we do not create super institutions. One of the usual misunderstanding in the exercise of Judicial review of action of legislature and executive seems to arise as if the courts consider thernselves superior to Executive and Legislature. Quietus to this assumption has been given by Chief Justice of India f.S. Verma when he said recently that "the controversy being generated over the supremacy of the three wings of democracy - Judiciary, legislature and executive - was a "futile exercise. Neither the legislature nor the executive nor even the judiciary was superior. It were the people who are supreme. .." Similarly, Alexender Hamilton one of the founding fathers of the American Constihrtion has said "the exercise of judicial review" otsly suPPoses that the power of the people is superior to both (court and legslature). Our Supreme Court has called the Power of Judicial review as a basic feature of the Constitution and hence beyond the amending powers of

Parliament.

l

The criticism of judicial activism as such is therefore untenable' Courts have since long been judicially active in giving relief in social action litigation to

labour, to victims of custodial violence, to the excesses committed by the Executive. But because as previously judicial targets were comparatively junior officials and certainly never involving politicians, issue of judicial activism was not taised by the executive. This charge of alleged interference by the courts has only now been put in issue because the fire of judicial activism is coming nearer home to the high officials and politicians who had falsely hypnotised

themselves into believing that they were above the law even though as far back as over 300 years Chief Justice Coke had said "Be you ever so high, the law is above you."

Some Aspects

ofJttdiciary

73

I am willing to concede that sometimes the courts in their excessive zeal may enlarge their reach and try to find solution to the problems which administration alone is competent to attempt' But then as Chief Justice Rehnquist of USA Supreme Court said, "Judges, so long as they are relatively normal human beings can no more escape being influenced by public opinion in the long run than can people working at other jobs'" It may well also be true as some critics have said that court's interference in the normal functioning of administration, like the direcLions as to which particnlar authority is to take a decision which may and does cause administrative anomalies and loss of morale. Thus I am not sure that judges can properly monitor the daily disposal of garbage by civic administratiory nor the actual steps taken to meet the problem of malaria etc.

It may be readily conceded that courts lack the technical.expertise to deal

with many of the matters which at present the courts are insisting

on

monitoring. Environmental groups, who using the cloak of fear of pollution and over indulgent consideration for the welfare of wild animals seek the aid of courts for direction to evict the poor slum dwellers from the sites they have lived for generations. Though PIL do manage to get court directions without paying due regard to the human suffering of poor evictees. The courts somewhat rashiy gave direction to shift industries- outside the

city limits, which will involve dislocation and relocation of about 2,00,000 families. Insistence by courts even without there being adequate relocation policy, to shift in the shortest of time frame compounds the problem. The poor get the blame for pollution, when the inefficiency and vested interest of govemment machinery should take the blame. Also in this apportionmeni of blame, if is conveniently forgotten as was pointed out in one estimate that 70"/" of air pollution in Delhi is caused by 30. lakh vehlcles (the highest number in the country). And yet planners and politicians seldom talk of having no vehicles zone, planning the vehicles movement and improving the availability of efficient public transport. In their misplaced enthusiasm courts goaded by environmental-cum-business lobby insist on applying Euro-II standard in cars in India with per capita annual income of 350 US Dollars (when the same were introduced in Europe hardly a decade back when per caPita annual income was at least 15,000 US Dollars). These rigid standards have resulted in mass unemployment of individual taxi drivers and of three wheelers thus seriously jeopardising the livelihood of hundreds of thousands and consequently violattrg their Human Right of living and work. I do not mind confessing that I do feel bitter that these worthies invoke the language of first world and seek to apply the same tests in developing counhies that are most inapposite in different situations. After all the greatest violation of Human Right is the poverty, homeiessness and not having even ordinary shelter. I may sound a reactionary to these so-called animal lovers, but if ever a

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The Citizen and

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choice was to be made between preserving the Human Right to shelter of a slum dweller or the so-called envi onmental standards laid down bv. first rvorld. I would unhesitatingly opt for the former because to me no one tates precedence over human brotl-rerhood.

It is well to remember what Justice Frankfurter of the USA said, ,,all power

is of an encroaching nature. Judicial power is not immune to this human weakness. It must also be on guard against encroaching beyond its proper bounds and not the less so since the only restraint upon it is self-restraintj,

"No one is an imporium in imperio in our constitutional order. Unchecked power is alien to our system." A former Chief Justice A.S. Anand reminded the judges that though "our ftinction is divine, the problem begins when we start thinking that we have become divine." If I sound a bit harsh, I can only invoke the caveat of Mr. Justice Holmes of US Supreme Court, who said, "l trust that no one will understand me to be speaking with disrespect of the law, because I criticise it so freely. .. But one may criticise even what one reveres. ... And I should show less than devotion. if I dii not do what in me lies to improve it."

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JUDICIARY AND LEGISLATURE Biplab Dasgupta* Very often we discuss the respective roles of judiciary and legislature, on the floor of the Rajya Sabha, in our own inimitable partisan ways. If the issue concerned is already before a court of law, some of us forcefully take the view that it is sub judice and hence cannot be discussed by us. At the same time, some others, equally forcefully, take the view, that the legislature must discuss the matter since it has a duty to perform, and the duty cannot be abdicated just because the judiciary had taken cognisance of it earlier. The matter is then resolved either by lung power or by the mood of the presiding officer at that point, but never as a question of law. We never resolve whether all sub judice matters need be avoided, or whether all are subject to review by the legislature, or some are and some are not. In the last case, we almost deliberately leave it

delightfully vague as to what should be and what should not be subject to legislative review and on what basis.

During the middle of the nineties judicial activism became a big issue. Some of us felt that judiciary was often exceeding its jurisdiction, and was tilting the balance between three organs of the Constitution in its favour, but decided not to protest against this judicial encroachment. Our decision of not protesting was based on our contemptuous opinion on the corresponding under-activism and under-performance of the executive. If the judiciary was over active, we argued, that was because the executive was not acting at all. Somebody had to look after issues like Hawala and Pathak spices. If the executive was not remotely interested, or are culpable, who are we to blame the judiciary for dealing with something like Jain's diary? The people were after all happy with Judiciary as they took action after action after several years of inaction by the executive. The opinion of the people in favour of the judiciary swung the balance in our mind. More important than whether the balance three organs enshrined in the constitlltion, swung in favotir of judiciary was the feeling that some one somewhere had to do it.

*

Member of Parliament. /3

76

The Citizen and Judicial Reforms

Our hope on the judiciary at a particularly critical point in the recent history of our nation tumed into anger when the judiciary failed to produce conviction in any of the cases. I would rather apportion more of the blame on CBI which, as a body, seemed to be more interested in public relations than investigations. The F.fawala case fell througlu not because the court found that those who had been named in Jain's diary were innocent, but that the details of the diary could not be corroborated by othei evidence, despite the tall talk by one CBI Director af ter another. They were behaving less like professionals that they were and more like failed politicians, giving one press conference after another.. Other cases failed partly because of their inability to mobilise evidence, and partly because the judges failed to see what was obvious. Even after depositing identical amount of lakhs of money in a partlcular branch of Punjab National Bank more or less on the same day, by people who in no way could eam or account for so much, the case of bribery could not be proved. One wonders why our judges, like King Solomon, could not take a common sense view of the

matter.

Our disappointment also grew when one of the judges of the Supreme Court was sought to be removed in the nineties for various irregularities, and was saved by a Prime Minister who asked his party men to abstain from voting. In our country a judge of the Supreme Court is taken as a demi-god who can do no wrong. For him to be removed for misbehaviour was alost a sacriiege,

unthinkable in the past. Now a conviction is growing among people, which may or may not be wrong, that a corrupt judge will never be disciplined by the judges themselves. Perhaps, taking the Supreme Court judge as a demi-god is wrong. This is more clearly seen when judgments are analysed and their impartiality is tested.

A judge may not be partial knowingly. He may think that he is impartially giving a judgment, taking in to account the pros and cons of the issue concerned. But, as the students of statistlcs will tell us, human bias creeps in all the time, and unknowingly. A judge, like any other persory is a product of the ,society and its history. Like any other person, he has a certain culture as reflected in his food habits, dress, manner, accent/ and so on. Most of these he derives from his upbringing in school and college, and parents and colleagues. From these he develops a certain world view, liking something and disliking some others. Once Bertrand Russell wondered why ICS officers were so uniform. The answer to this was that they received similar education and belonged to similar classes, or had an ICS father. A judge from a particular background will be supporting private property, while another from an entirely different background will take joint ownership of property as easily. The fact is that most of our judges come from a given background and hold a particular world-view, and it may not be easy for them to accept that other views exist.

This is human nature. It can not be shown that the Indian ludiciary is different from others. From the begiruring of Indian judiciary, this has been a maior problem with us. When the British interpreted our laws, they interpreted in their way. In each case, they found a parallel between our institutions and theirs to conform our laws to their understanding of what law should be like,

ludic

ia41

/t

and Legislature

the people

that based on their own experience in .h.i. o*,' .o.,r,.try. It is natural of-what irrespective terms, own in their customs and *iii try to .roa"rstandiaws landlords. aciualiy exists. Lord Comwalis enacted permanent settlement for the

because he was a landlord himself and understood them' EuroPeans Everyryvhere"in'the globe where European colonialism spread the *anied inequality, Jven in places where tribal egalitarianism was dominant' fr".u"r" tney tt oirght that inequality was essential for progress. Class added growth. It col,our to a soc;etylnd inequality wis like an engine which ensured be more was God's law, tire British iolonialists would argue, that some would like the ruled' unequal than others, some would be born to rule and some to be colonial population and slaves' The concepts of equality and

ln Vg,, largely

subjugated solidarity are by no means universal' It is necessary for the judges to show that they are as much aware about 'uru and prolose to do something about it. on issues like tne re"tir,g u, *u promotioi, transfer, retrenchment, salary, and so on, there should be corruption and i;;;;tt."; that are self-regulatory and ire immune from that a subjectivity. Just because soire one'is a judge, it should not be assumed p".i"" i, a'Uorre att kinds of human caprices. There has to be a self-disciplinary justice with mechanism installed somewhere to ensure the high quality of honesty and integrity. And this mechanism has to be known to the common not onlybe masses and to be trusted by them to prove effective. "Justice should dictum by this we learnt done", been hiving as seen be it should done, but also heart in the early days in our classes of jurisprudence' A Several years ago we experienced a good examPle of self-discipline' remarks iunior iudge, while discussingiawala, made some uncomplimentary '"U."i if,""p-riament, that ciused uproar on the floor of Rajya Sabha. Some wanted a strongly worded resolution decrying the judiciary and openly and an advocated confr6ntation with it. At the end, good sense prevailed level hi8h:: the day' Next wait. to reached iudiciary.at understanding was the end was And that remarks' those making for concemed pulled up theJudge of that chaPter.

ThereisalackofunderstandingofcontemptlawsintheParliament.'Itis

o{ judge' a not known that, as long as a motive ii not imputed on the iudgmen! that is not in" ."*, is subiect to p"ublic examination like any other document. It wrong' a legislator is refrained from saying that the iudgment is

(6&)

Part

III

THU ClrrzEN/ |usucn ANo juucrARy

THE CITIZEN AND ruDICIAL

REFORMS

R.S. Pathak*

There comes a moment in the history of every institutioru as indeed it does

in the iife of any nation or people, which calls for deep introspection on ftinctioning and future progress of

tl:rat

the

irstitution.

Law and Justice are fundamental features of a modem democratic polity' They constitute the quintessence of our conception of the State and are involved

in its very definition. But Law and

Justice also pass beyond the political

organisation to the personal quality of human living. They possess an elemental

quality in sustaining human relations within a civilised community. They underlie the aspirations and expectations within which the human psyche exists and operates.

A well ordered society governed by Law and Justice is India's imperative need, more so today than ever before. We have a situation today where the slowly moving pace of feudal norms has been superseded by a rapidly changing nationai order in which the nascent energy of vast numbers of hitherto voiceless sections of society insistently demand attentiorL where in several parts of the country the political and social order is influenced by the vocalisation of age old suppressed urges. Moreover, economic pressures and ambitions express themselves in a rising curve of crime and violence. Besides this, changes inevitable to the several dimensions of a developing society call for the guidance of Law and Justice. If the Rule of Law weakens, or fails, there is the pervasive threat of increasing chaos and we could slide into an Age Darkness' It is inescapable, therefore, that we should treat the subject of Judicial Reforms as an area in which the citizen has a vital stake. Seldom has that consequence being so sigtrificant. The judicial institution representing one of the three great pillars of the State, maintains the security and strength of our constitutional system. Today it is without doubt in a condition which arouses considerable concern and unease. The courts, at different leveis,

*

Fotmer Chief Justice of India. 81

The Cifizen and

ludicial Reforms

are choked with an unprecedental backlog of pending cases. The litigants despairs, and even when he succeeds on the litigation ne rinas that alth6ugh the victor in the dispute, in reality he has become the victim of delay. Through the recent decades, several strategies have been evolved. Special Courts, Administrative Tribunals, Lok Adalats and now an ever ur.p"t dir.rg

volume of commercial arbitrations attempt to respond to the crisis. The expeditious disposal of intemational commercial disputes possesses a profound influence on India's intemational trade and commerce. In the long term, a debilitated economy will seriously affect India,s inlluence in thi interplay of global politics.

We have wilnessed and some time participated in Conferences and Seminars on Judicial Reforms. The present Slminai is unique among them, in that it seeks to relate the need, nature and direction of Judicial Refoims in the context of the needs of the citizen of India. Over these two days a number of business sessiors have been preoccupied by some fundamental questions. They have ranged far and wide, attempting to cover comprehensively the scope of the central theme. In a valedictory address arrd within the limitation of time, I shall not attempt to traverse the contents of thht debate but a few observation may be permitted at this point. It is indisputable that the central objective of all Judicial Reforms should be

to ensure and strengthen the independence of the judiciary. Considerations which weaken judicial independence wiltr deny to the judicial institution its true identity and purpose. The independence of the judiciary is affected by the manner in which the selection of judgeb takes place, the qualifications of the judge, personal and professional, which decide that choice, the freedom illowed to the judiciary to function in independence, the ethical principles reflected in the public image and behaviour of judges while in office, and even thereafter. Al1 these considerations entered into the composition of the judicial personality and the assurance of judicial independence. Generations of ju-dges havl followed the classic traditions commonly accepted as contributing to the independence of the judiciary. Let it be known thioughout that there c-an be no deviation from them, and dilution of those principles. A specious

rationalisation of the norms of judicial colrduct and behaviour is attempted from time to time. Those who do that do ill-service to the cause of iudi.iul independence and of the esteem in which the judicial institution should be held. It is said that the status of the High Court has suffered during the last few decades. If that is so, the reason could be that in a previous era the High Courts were regarded as the highest judicial instihrtion within the territories of India. The Privy Council sat in Londory and appeals from the High Courts to it were extremely few. That position has been tempered by the presence of the Apex Court within the country itself. Nonetheless there is no reason why the Hlgh Courts in India should not enjoy much Of the esteem the public gave to them before. In my opinion, the strength and efficiency of a High Court and the measure of public esteem which it enjoys tums greatly on the personality of the Chie{ Justice of that High Court. It is true that we mLrst now accept the piinciple

l-he Citizcn nnd

ludicial

Reforms

g3

that a Chief Justice should be appointed to a High Cor"rrt from outside the state. Those appointments should not be made as a matter of course. They should be govemed by a careful consideration of the needs and problems of the High Court to which the appointment is made. A chief Justice needs to possess strong administrative abilitt the wisdom to promote unity within the court and enjof the full confidence of all his brother judges. He must be above all a man who is known for his strength of a character and a highly developed moral sense, both in regard to his judicial functions and in his personal life. In India it is difficult

to draw a line between the public personality and the personal life of

a

ftrnctionary entrusted with high resporuibility. The values of one are seen by the general public as flowing fi'om one into the other. while that must be true of all jndicial appointees, it is specially so in the case of the appointment of a Chief Justice.

Another aspect which instantly calls for attention is the general criticism that a Chief Justice, selected from the judges of other courts, holds office as chief Justice for a few years only, rendering it difficult for him to address the problems of the High Court now headed by him. It is pointed out that not posseising any prevrous acqltaintance with those problems, the short-term enjoyed by him does not enable him to address those problems effectively, and they targely remain as

lhey ye1e. A suggestion which offers itself is that a Judge of a High Court intended to fill the office of Chief Justice of another High Court, should be selected some years before the event and appointed to that High Court at a time when he could be the senior-most Judge of that High Court for an appreciable period of time before he assumes office as Chief Justice of the High Court. The transfer of judges is now accepted as a matter of policy. In that context, I would sugtest that before the transfer of a judge from one High Court to another, every attempt should be made by the High Court to which he is to be transferred to provide suitable housing and all other facilities immediately on his arrival on transfer. I am told that in some cases a suitable residence could be provided to transferred judge only after the passage of much time. The absence of such fac.ilities tends to demoralise the transferred judge, and that affects the quality of his work in the court as weil as the mind-set with which he faces his new environment. Judicial activism occupies now a fair measure of the time of the superior courts. It cannot be disputed that public interest litigation has come to stay. Several issues ranging far and wide over the spectrum of daily living are being covered by such litigation. They are prompted generally by the inability or inaction of execlltive agencies. As it happens, while in most cases public interest litigation has been treated with an appropriate exercise of jurisdiction and has resulted in a measure of substantial public benefit, there have been a few cases where the court can be said to have ventured into a domain plainly beyond its proper jurisdiction. I believe, it is time for the courts to redefine the principles, both substantive and proceduraf which can constitute guidelines fbr judicial intervention in public interest litigation.

The Citizen and

ludicial Reforms

it

is Finally, while we hear persistent voices for Judicial Reforms, necessary to remember that in any system, substantive or ptocedural, devised as a measure of reform, success can be achieved only by a greater commitment and total dedication to the goals for which the judicial administration exists' This is as true for the legal profession as it is for the courts. I believe it is time that the

legal profession also reviewed the mea$ure and quality of its responsibilities and exemplified that awareness in all.ihey do. The legal profession and the judiciary are truly partners in the great task of strengthening the administration ofjustice. Let it not be said that short-term gains obscured the needs of the longterm vision. The needs of the long-term vision cannot be Postponed to the indefinite future. We must start now.

ogN)

THE CITZEN AND THE PERFORMANCE OF THE TUDICIARY Shivraj V. Patil*

How does the citizen feel about the Indian judiciary? The citizen feels that the judiciary has done better in discharging its duties as per the provisions of the Constitution than the executive and the legislature have done. May be, judiciary is not as exposed as the executive is, maybe, legislature is little less exposed than the executive is and more exposed than the judiciary is exposed. If we compare the performance of the executive, legislature and judiciary, probably people hold judiciary higher and thihk that the iudiciary has done better. That does not mean that the citizen agrees with all that is done by the judiciary or that he is fully satisfied with its performance. On the decisions given by the court, he may have views which may not be reflected in the judgment. He has to abide by the judgment. The judgment is binding on him. But he may not in his heart agree with the logic which is at the basis of all the judgments that are delivered by the courts. He may differ and he may hold that the judgments could have been different in some cases. He wants that justice should be done to him. And, in the drajodty of cases, justice is done. The percentage of cases which give him satisfaction may be as high as 90 per cent. Sq this demand of his is really met. The citizen wants that the time taken for dispensing justice should be very short and that the delays should be avoided. Unfortunatelp on this count, he is disappointed. The delays are really very agonising. They are so agonising that at times he does not want to have recourse to the court of law to get justice. He is inclined to resort to extra judicial means to get justice. This point has been discussed in many conferences and forurns. But no very effective solution is yet discovered. The delays increase in proportion to the number of new laws made, number of new activities started and the number of persons for whom they are made. Unfortunately, the number of the courts and the number of judges in the

*

Member of Parliament, Deputy Leader of The Opposition in Lok Sabha, Former Speaker Lok Sabha. 85

86

The

Citizen arul Judicial Reforms

courts are not increased proportionately. This mismatch .is one of the most important causes of undue delays in droing justice. The procedures that are followed need to be modified. some relief can certainly be delivered if the changes in the procedural laws are effected. There are Jt least two sides to a dispute. one-side is always interested in delaying the hearing and disposal of matters. The law should take note of this fact and take action against the party delaying the disposal of the case. Cost of getting jushce done is becorrning prohibitive. The court fees and the process fees are not very burdensome. If they are, they can be reduced. But the lawyers' fees are very heavy. So, it is not possibie for all to pay those kinds of fees. That is why, it is said that everybody can be equal in the eyes of law but not in the courts of law. A person who can offer to pay fees of a good lawyer has better chances of winning the case against a person who cannoi engage i senior or_a good lawyer. Legal aid schemes have been brought into existence. They help to some extent but not fully. Somethlng more needs to be done. The market forces should not be allowed to make getting justice a very expensive exercise.

Private industry, trade and professitons are modernised. The pr-rblic sector units are also modernised. The executive wing of the Government is in the process of modemisation. But the judiciary has not been given the modern equipment that are given to the executive. As far as the equipments that are used by them are concerned, judiciary is quite low in the list of performance in modemisation. That is because adequate funds are not available. It has become very necessary that enough funds should be given to them so that they disperue justice expeditiously. They should be provided with computers, cameras, copying machines and many such things, The sooner the steps are taken in this respect, it would be better.

Public interest litigation is helpfirl to the people.

It

should not be

discouraged. But it should be used pqoperly. In many cases, it is used to delay the projects and defame the person. That should not happen. Judiiial activism is discussed in courts and in many other forums. The judiciary lras to do justice to the people. lf laws enjoin the executive to perform certain duties, they should not fail in discharging them. They should be compelled to perform through discussions in the legislature, in the media and in the judiciary. Any equipment or any source of power can be used, misused and abused iepenai.rg o" tfre person using it. The judiciary should never allow anything to use or abuse the process of law and the machinery of doing justice. Judiciary has a duty to interpret the [aws, the executive and the legislature are not meant for this purpose, that is, to interpret the law. Of course, while conducting the proceedings in the legisla[ue, certain rules are interpreted and certain laws are interpreted. But while the interpretation of laws is not binding outside the House, interpretation of rules is binding. The executive is also expected to interpret the administrativq laws and without interpreting the administrative laws, they are not in a position to administer. To that extent, the

interpretation of law and the rules by the executive and the legislature is allowed. They can initiate and make the laws and policies but the interpretation

The Citizen and the Performnnce of the

ludiciary

87

of the laws, if not the policy, should be done by the judiciary. There is

a

distinction between the interpretation of law and interpretation of policy. As far as interpretation of policy is concerned, the final word should lie with those who really make the policy, that is, the legislature. As far as interpretation of the poiicy is concemed, the nuances of policies are concerned, it has to be done differently. But as far as the interpretation of the laws is concerned, which contains the policy, it is given to the judiciary. And if the interpretation of policy is done in a fashion that new law is created, that will not be correct. The judiciary can compel the executive to perform its duties but it should

not issue executive orders as such. There is a difference betlveen issuing executive orders and ensuring that the executive performs its duties. The fine

distinction between these two should be very clearly understood. Interpreting the law is the responsibility of the judiciary and that interpretation of law is

binding on the executive, legislature and all other bodies also. \A/hile interpreting the law, it is not only the decisions given in the previous cases but decisions given in other countries are discussed, not the words but the meaning that is attached to the word is taken into consideration. The most important source which can help the interpretation of the law, is the debate on the floor of the House. That can give the direction, that can give the idea as to what was thought proper at the time of making the law. If that law is not correct and if it is not approved by the legislators and the people, it can be removed from the statute. But until the time, it is on the statute book, it has to be interpreted in the light of the discussions on the floor of the House and not only with the help of the meaning attached to the words or help of the decisions given in other countries or the decision given in our country. Now this is an issue which needs lot of discussion and it will not be possible to come to a correct conclusion by saying that in no case, the court should interpret policies. There may be difference of opinion on the interpretation of the policy also, not only the outer words in the statute book. This is a very delicate issue, it has to be very carefully handled. But, broadly speaking, the judiciary should not get itself involved in issuing executive orders or making laws. But they do have the right and the authority given by the Constitution to compel the executive to discharge its duties. And if the executive is interpreting a law in a manner which suits the occasion or which suits their interest the correct interpretation of that law can be given by the judiciary. But when that interpretation is given, what was the intention of the law makers at the time of making that law should certainly be gone into in detail and then it would be possible for the judiciary to interpret the law in a proper m;rnner. And if that is done, it is not interfering in the executive duties or the legislative duties of the two wings of the State. It is really discharging the duty which is cast upon the judiciary. In majority of cases, that has been the case. In one or two cases, the members of the executive may not agree with the interpretation given by the judiciary. Some Members oi the Parliament also may not agree with it. Sometimes, the media people may not agree with that. Sometimes, the people at large also may not agree with that. And there is a scope for differences of opinion on this point. But this is an area which is attracting lot of attention and, therefore it has become necessary to clearly demarcate the areas to see that these things should not happen.

88

The Citizen and

ludicial Reforms

The state is an organic whole and the three wings are parts of that organic

whole, the executive, the legislature and the judiciary. We in India have accepted the theory of partial separatiorr of powers. judiciary is completely independent, judiciary should remain independent. It would be wrong to reduce the independence of judiciary. .Any day, any time, we reduce the independence of judiciary, it will affect Indian polity, lndian Constitution and the system we have accepted. So it is necessary to guard the independence of judiciary. In no case, it should be allowed to be diluted. But at the same time, the executive and the legislature are not aF independent as the executive and legislature in America are. American executive is completely independent of the legislature; the legislature is completeiy independent of the American executive. But here, the executive is accountable to the legislature, not only accountable to the legislature bttt the executive comes out of legislahrre. In America, a Minister cannot remain a Minister if he becomes a Serlator. Or if a Senator is appointed the Secretary of the Governinent, he has to resign and go. That is the case in France also. But in India, if a Minister is not a Member of the legislatttre, he has either to become a membet of the legislature in six months time or he has to resign and go. So, the independence or ttre separation of the executive power and the legislature's power is not accept€d in India. On the contrary, they are inter-independent. Executive is accountable to the legislature. Wherever, we have accepted the complete separation of powers, there have been conflicts. Specially in America, the conflict behareen the executive and the legislature, the legislature and the judiciary, judiciary and the executive has been much more than the conflict in India because there they have accepted the prificiple of complete separation of powers. Here in India, we have partly accepted that principle and partly we have allowed the two wings to be dependent on each other. That is why, here in India also, there is a confligt at times between these

three wings. There cannot be a conflict between the executive and the legislature. There has been conflict between the executive and the judiciary. But

fortunately for us, those who have manned these three wings of the State, have understood the basic structure of the Constitution. The principles, the most important principles of the Constitution and they have performed their dufy in a manner that they are part of the organic whole and that has reduced the tension between these wings. While discharging the duties, while not allowing anybody to influence their right to discharge their duties, they have discharged tJreir duties in a manner that unnecessary tensilons and conflicts are avoided. Maybe, in one or two cases, we may have different views but if we take the totality of the performance by these three wings, we have every reason to be satisfied. There has been an understanding, a perfect understanding of the duties that are to be discharged by them under the Constitutidn. This is the way in which these three wings have to perform. The National Judicial Commission has become an issue on which there are differences between the executive, the legislature and the judiciary. It may be in the interest of the entire system as such to decide this issue in such a fashion that the purpose for which these wings have come into existence is achieved and at the same time, the differences are reduced. lf we have a National fudicial

The Citizen and the Performance of the

ludiciary

89

Commissiorl it should have representatives of the three wings. There should not be any difficulty in evolving something acceptable to all ultimately. The idea of giving written arguments is very welcome. In the Parliament, the Members are not allowed to read out their speeches. They have to make their speeches. But in the U.S. Senate, and the House of Representatives, time given to

them is two minutes and three minutes. And thai time, they use in the best possible manner. Mr. Yashwant Rao Chavan once said, if I have to speak for half an hour, I think for eight days and if I have to speak for five minutes, I think for two months. So, written speeches are really welcome in the Parliament also and the copies of the speeches have to be given to the presiding officers. And if there are points made by the previous speaker, then the Members are asked to delete those points. In the same fashion, if the written arguments are given, the verbosity of the language can be avoided and it would certainly be very useful. One word which is very often used is politicisation. What do we mean by politicisation? Is it an abuse inflicted at the politicians or is it an abuse inflicted at others? Politics is a part of life. Ncw everything and anything which has to be

done

in a

democratic country has to be done

in the Parliament by the

representatives of the people who are elected. And if we do not accept the concept of the people, a government by the people, of the people and for the people, we cannot have one billion people sitting in the Parliament and taking the decisions. There have to be elections. We have to have representatives and they shall have to take decisions. Sometimes it is said that the authorify of the elected representatives should be reduced and.it should be given to the nominated persons as in many cases, nominated persons are better informed and they are in a position to perform their duties in a better marrrer. There is no doubt about it. But as far as the wishes of the people are concemed, nobody is as equipped as a politician is, who lives with them, who comes from them and who is elected by them. He might commit many mistakes. His credibility today may be very low and yet he is a person who is better informed about the wishes of the people, the opinion of the people. And if democracy is a government by dre people, of the people and for the people, we do not have any other system in which the people's wishes are represented. There are millions and millions of people whose views are not at all projected to those people who have to take the decisions and the only way in which that can be done is through the media who meet the people or through the politicians who come from the people. This word politicisation has been used too oftery sometimes properly and sometines wrongly and with abusive connotation attached to it. If it is denigrating democracy or the system which we have adopted, we must not continue to use this word in an abusive manner and should find some other word to point out the defects and the lacunae which exist in the performance of the duties by the persons who are at the helm of affairs and the defects in the system also.

(,5Dc)

CITIZENSHIP VALUES AND

QUALITY OF JUSTICE Shiv Dayal* Rights demand a guarantee or secgrity that they shall not be infringed. However, they are not productive. On the other hand, duties demand their performance, their implementation, and they are productive^ Therefore, it is the citizen's duties which constitute "Citizenship Values".

Article 51A of the Constitution enshrines fundamental duties of - the ten commandments. each of which is Drefixed bv mandate:citizens of India

"It shall

be the

the the

duty of nery citizm of India...."

A serious thinking on the fundamental duties leaves no manner of doubt that their implicit practice has a potential to regenerate and reconstruct the nation. It must, therefore, be said that the future of India lies in implementing and invigorating compliance with the cltizenship values enshrined in Article 51A of the Constitution. These citizenship values enumerated as ten commandants in their application to the administration of justice., will bring about improvement in the four fold quality of justice, namely, Unpolluted Justice, Substantial fustice, Speedy Justice and Inexpensive Justice.

Unpolluted Substantial

I r,rsrrcE I Inexpensive

*

Former Chief fusticg Madhya Pradesh High Court. 90

Speedy

Citizenship Values and Quality of

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91,

The constituents who participate in the process of administration of justice

are:A. TheJudges B. The Lawyers C. The Parties and Wifnesses. D. The Law Makers

and

Principal and primary responsibility to produce the four-fold quality of justice is of the judges, whose function is dispensation of justice.

Five

of the ten commandments are reserved for their resDective

contingencies:-

(i) To uphold and protect the sovereigrrty, unity and integrity of India, clause (c). It is a duty prohibitory in nature that nothing derogatory of the upholding or protecting the sovereignty, unity or integrity of India shall be done.

(ii)

To defend country and render national service, when called upon to do so, clause (d). It is contingent on the citizen being called upon to defend the country and render national service.

(iii)

To promote harmony and the spirit of common brotherhood amonpt all

the people of India, transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women clause (e). The first part denotes the development of a mental outlook that will enable the citizen to transcend the diversities which will always exist.

The reservation policy is in direct contradiction with the clause (e) because it separates certain sections from others on the basis of caste. Dr. Ambedkar was opposed to reservations for Scheduled Castes for more than forty years. He said that even the Parliament should have no power to extend that period by law. In reality the reservations have not benefited those for whom they were made and have been monopolized by certain sections. Reservatioru in Competitive Examinations is contradiction in terms. The second part is a mandate to remove prejudices based on diversities on the point of sex.

(iv) To protect and improve the natural environment including forest, lakes, rivers and wild life, and to have compassion for living creatures, clause (9. In the face of the menace of the increasing pollution and environmental degradation, it is the duty of a citizen to protect and improve natural environment and to have compassion for all living creatures.

(v) To develop the scientific temper, humanism and the spirit of enquiry and reform clause (h).

92

The

Citizm and ludicial Reforms

Three elements are inherent in every man:-Animality, Humanity and Divinity. Caution and control are required against falling into animalism. Humanism is outstanding in man's nature. Divinity constitutes qualities higher than humane, The above fundamental duties enshrined in clauses (c), (d), (e), (g) and (h)

are general

in

nature. They equally apply

to all the constituents

of

administration of justice. Clause (b) of Article 51A vests in the citizen's noble ideals, which are defined by reference as the noble ideals, which inspired our national struggle for freedom. Those ideals are very much relevant even today and shall remain so always.

In the context of administration of ipstice, some of them

are:-

(i) Tmth (ii) Justice (iii) Independence (iv) Sacrifice (v) Perseverance (vi) Fearlessness (vii) Selflessness Some Corollaries

.

Fees payable

to the Lawyer should be regulated by Law according to

their classification, Experts, Senior, Junior and Solicitor (to be designated by the High Court) for their respective State and Chief

Justice of India in consultation with his two senior-most colleagues for the Supreme Court.

.

Payment of Professional Fees to the Lawyers prohibited by law.

r r

Working days for the Courts should be 220 days (minimum).

in

cash should be

Long summer and ryinter vacations must be abolished.

Clause (f) of Article 51A imposes a duty on every citizen of L-rdia "Vnlue and preseroe the rich heritnge of our composite culture"

to:-

.

(i) After all a Constitution like a machine

is a lifeless thing. It acquire life because of the men who control it and operate it, and India needs today nothing more than a set of honegt men who will have the interest of the country before them.

(ii)

Every culfure stands for some nbble ideals. In India the foundation, the background, the life centre is spirituality - the keynote of the whole music of national life. Spiritualiity is a repository of noble ideals and they are essential in preservi4g the rich heritage of our composite culhrre.

Citizenship Valttes and Quality of

(iii)

93

lustice

The compositeness of Indian culture is due to the wide and democratic nature oi th" Indi"tt thought. Indian culture is basically spiritual. It is

eternal law of life "May good thoughts come to us from the entire universe". Our nation his i 'tradition of sheltering the persecuted and the refugees of all religious and all nations of the earth' (iv) Under the leadership of Mahatama Gandhi, our freedom struggle received its inspiration, courage and moral strength from truth and

non-violenceoutoftheinexhaustiblereservoirofthebasicvaluesof "

Satyam" (Truth), " Shianm" (Goodness) and " Sundaram" (Beauty)

Mahatama Gandhi described the following as sins:-

o

. o o

. . .

Politics without principle Commerce without morality Wealth without work Education without character Science

without humanity

Pleasure without conscience

Worship without sacrifice

(v)Allrounddevelopmentofpersonalityofthecitizeninalltheaspects_ intellectual, mental, physiial and spiritual, is a rich heritage of our composite culture and

ii

a panacea

for all administrative, political and

social ills.

(vi)Arichheritageofourcompositeculfureisman-makingeducation

initiated fromihildhood andiontinued throughout life. A rich heritage of our composite culture has been the dedication of the individual and performanceofhigherlawinday-to-daylife.Itmustbereca]ledthatin Lur culture right 6om the initial stage of law making,- the-law.consisted

ofdutyanddutiesonly,whichcorrldbroadlybedividedintothree

aspecti-sacrifice, ceremonies and temporal duties (Shrauta' Grihya ani samayacharike), the last one being referred to as Dharma sautras. As we became more civilized, the concept of rights became more important of so much so that the rights of the citizens over shadowed the duties the citizens.

The foremost are five:

(a) If a citizen commits theft, he is punished with imprisonment or with fine or both; this is law. However, if the cltizen takes a determined revolve within himself that he will not commit theft even if the whole world may, this is higher law (Asteya); (b) If a citizen causes hurt to another person,, he is punished'- lhis i9"!w, However,ifthecitizentakesadeterminedresolvewithinhimselfthat (Ahimsa); he shall not cause any hurt to anyone; this is higher law (c) If a citizen commits cheatin& he is punished; this is law' However' if

The

Citizen and ludicial Reforms

the citizen takes a determined re'olve within himself that he shall not

cheat or deceive anybody; this is higher

la

w (Satya);

(d) If a citizen takes bribe he is punished; this is law. However, if everv citizen takes a determined resolve not to take bribe, io gi"'" bribe, even if the whole world may; this is highe r ?aw (Aprigraha); ""a ".t ,,iJ (e) If a citizen o-utrages the modesty cif a woman he is punished, this is law. However, if the citizen takes a determined resolve that he shall arwavs look upon women as his mother, sister or daughter, thi" i, hi;h";-;; (Brahamacharya).

(vii) our culture which is a composite

cl.tlture of seaeral

best.

cultures,in India is the

(viii) The onslaught of the unhealthy trend to ape the westem method and the influence on the immature *ind of tne young generati on, ol scenes of ,iolences, aices and ourgarity are polruting ii. we"must constantry guard ourselves and our children aeainst them.

Thus, clause (f) enjoins each constifuent of administration of iustice to develop his personality all round. The implementation of such Fundamental Duties require aspiration of the citizens rather than enforcement or sanction. When at the formatirre of hf" such noble ideals are inculcated_ and harnmered upon, and "g" also praitised in daily life, aspiration to practise them throughout liie wil be ineviiable; it wilr part and parcel of the nature arrd character of the citizen. Strong tions of nature and character are laid during the formative period (6 to 17 that is when the boys and girls are at" school. It is there that the ty is developed and moulded. It is there that man is made. Dr. Rajender Prasad in his closing dpeech at the Constituent Assembly Nov., 1949) observed; '.'We haae prooided independent.

It

in

the Constitution for a judiciary which

will

be

is dfficult to suggesl anything mbre tu make the Supreme

Court and the High Courts independent of the influence of the Executiae. lhye is y nttempt made in the Constitution to makc eoen the lower judiciary independent of any olttside or er.trnneoas influence,,

.

The following principles follow from clause (f) of article 51A:

r

paid appointment under the Govemment, of a Retired Judge must with the Chief Justice of India and chief Justii of the High Court concerned, so that therre is no ,,Looking Forward,, while in -Any be in cons'ltation office.

.

Ate^of retirement of High Court & Supreme Court Judges must be raised to 70 years.

o

r

The services- of retired judges, who may be in good health should be utilised at all levels for clearing arrears.

Training and orientation programtnes for the fudicial Officers at all levels at the time of the entry will add to their proficienry.

Citizenship Values and Quality

o

r r

oflustice

95

all the Judicial Officers at all levels at regular intervals will be usefully for their proficiency. Likewise, training camps, for lawyers will improve their proficiency. Refresher Courses for

The emoluments of Judicial Officers should be revised according to the recommendations made by the Justice Jagannath Shetty Comrnission. Services of Retired Judges should be utilized by appointing therr. ad hoc in another district and they should be paid fees per case according to the classification of the case as may be fixed by the High Court.

Clause (j) of Article 51A provides that "it shall be the duty of every citizen

of India to strive towards excellence in all the spheres of individual and collective activity, so that the nation constantly rises to higher level of endeavour and achievement". The drive for excellence would include respect for professional obligations and excellence. Whatever work the individual citizen takes up, the efforts

should be directed to achieving the goal of excellence. "Excellence" is the secret of all deveiopment and all success and if even brings about union with the divine. Yogah Knrmasu Knushalam.

japan and Singapore are living examples. It is amazing that Japan stood up head and shoulders in such a short time after the devastation in Hiroshama and Nagasaki. The open secret is "Excellence". Every single citizery in whatever station of life he or she is endeavours and persevers for excellence in his project because right from primary school the word "excellence" is inculcated in them

by displaying numerous mottos, maxims and quote, containing the word "exceilence". It is very distressing and reprehensible if an Indian citizen

flourishes on adulteration, hoarding, black-marketing or sub-standard production. Steep deterioration in work consciousness is degrading. Clauses (b) - Noble Ideals; (f) - Rich Heritage; (j) - Excellence constitutes a Trioeni, which has the potential to raise the nation to the highest level of endeavour as may be desired. Noble Ideals (b)

NATION Rich Heritage (f)

Excellence (j)

The guiding principles that follow from article 51A(b) are:

(i)

As laid down by Bane4ee l.In Kewal Chand Mimani v. S.K. Sen, (2001) 6 SCC 512 (529), it is the trite knowledge that presently, the law courts are

The

Citizen and ludicial Reforms

being guided by a justice-oriented approach, since the concept of justice is the call of the day and the nreed of the hour, Justice is the goal of

jurisprudence - processual/procedural, as much as substantive. Puritan approach has lost its significance in the present - day context;

'

since justice ought to be the end product of equity and go the roots.

(ii) Provisions in Code of Civil Procedures and Code of Criminal Procedures and the High Court Rules should be strictly enforced.

(iii)

Before a suit is filed in the court,, a copy of the plaint must be sent by the Plaintiff to the Defendant by Registered Post 30 days in advance, calling upon the defendant to fiie his written statement on the date to be specified by the Plaintiff in a Notice, so that on the so specified date not

only the Plaintiff will present the plaint but also the defendant will file his written statement and it is then the court after receivine both pleading will fix a short date fol framing issues.

(iv) Punctuality

should be strictly observed by Judges, Lawyers, Parties and

Wifnesses.

(v) The judge has to identify in

each case, which of the party is interested

in

delaying.

(vi) The judge has to control effectively the proceedings. The greatest menace is adjoumment. Every request for adjoumment must be rejected on whatever grounds it may be made, unless the Judge is satisfied that

refusal to adjoum would result in miscarriage of justice. However in that case:

(a) He must record his reason and if, it be not the first occasion on graniing such adjournment, a copy of the order containing reason for adjournment must be forwarded to the Registrar, High Court, the same day.

@) The other party must be awarded full cost of travel and expenses including lawyer's fees for the occasiorL even if, such adjournment is guaranteed with the consent of the other party or his counsef and even if, such adjourrunent is guaranteed, on some personal ground of the counsel of the parties seeking adjournment.

If a witness who has been summoned through the court, does not appear and his inability to appear is beyond his control, the party who got him summoned, must pay the above expenses etc.. . to the other party. If however, the court is not satisfied of his inability being beyond his control, the witness must from his pocket pay the above expenses etc. to the other side, and the same should be recovered forthwith, by attachment of his property, or otherwise, and the expenses of such recovery shall also be paid by the witness:

(i)

From the Board Diary, a daily c4use list should be drawn up, implicity, in the chronological sequence of the case numbers except where there is express direction of the court.

(ii)

Each case must be called for hearing, strictly according to the sequence in the daily cause list and the parties must appear at the first call.

Citizenship Values and Quality of

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97

No pass over should be granted. However, one Pass over may

be

allowed to a Party on the ground that his counsel is on his legs in some other court. But in that case, if the case has to be adjourned for want of time on that day, the party which sought Pass over must Pay to the other party full costs as above. It is the demand of the iaw that the parties shall speak the truth at every stage of the proceedings. Pleadings have to be verified as true under order 6 rule 15 aPC. Affidavits under order 19 CPC, Oral evidence under order 19 CPC or in Criminal Proceedings etc. To meet the evil of perjury, the court should not be reluctant to proceed in suitable cases:

.

Written Arguments must be filed in each case after exchanging advance copy with the opposite party. Thereafter, the court may fix a time limit

foi Oral Arguments in view of the nature of case and the .Written Arguments filed bY the Parties.

.

Each documents, the registration of which is not compulsory under the law, if presented for Registration a rebate of 25 per cent of the Stamp Duty should be allowed'

o EveV document when presented

for Registration shall be accompanied

by two Photostat copies. The Registrar on presentation of the

said

document and the copies shall vary from the parties and attesting wihresses and shall forthwith put his Rubber Stamp of his Registration and shall sign the same and return the OriSinal and a photocopy to the parties concemed, while retaining one photocopy for his record' r The maximum Starnp Duty on a document, not required by the Law to be Registered, if presented for Registration, shall be Rs. 5,000 (Rupees Five Thousand only). . The following proPositions which were laid down in Ral Deo Sharma v' State of Bihar, AIR 1998 SC 3281 (3287) should be incorporated in the Code of Criminal Procedure, o In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, tire court shall close the prosecution evidence on comPletion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has been examined all the witnesses or not, within the said period and the court can proceed to the next steP Provided by law for the trial of the case. o In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit. r If the offence under trial is punishable with imprisonment for a period exceeding 7 yeats, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years frorn the date of reiording the plea of the accused on the charge framed, whether

The Citizen and Judicial Reforms

the prosecution has examined all the witnesses or not within the sai