THE
CITIZEN AND
IUDICIAL REFORMS Under Indian Politv
AUSTRA,LIA.. LBC Information Sbrvices, SYdneY
HONG KONG
Bloomsbury Books Ltd., Horig Kong Swindon Book Co. Ltd., Hong Kong
MALAYSIA Crescent News (K.L.) Sdn. Bhd., Kuala Lumpur Law Books Traders, Penang Malayan Law Journal Pte. Ltd., Kuala Lumpur NEPAL
Bhrikuti Pustak Tatha Masalanda Bhandar, Kathmandu
PAKISTAN Pakistan Law House, Karachi, Lahore
Islamabad
SINGAPORE
APD Singapore Pte. Ltd., Singapore HKS Law Books, Singapore
SRILAI.{KA
Landmark, Colombo
SOUTHAFRICA
Butterworths Publishers (Pty) Ltd., Durban Juta Juta
Company l-td., Capetown Company Ltd., Johannesburg
U.K. Hammick's Legal Bookshop, London
LAMBS, (Legal Medical Bookshop Ltd.), London Wildy's Sons Ltd., London U.S.A,. W. Gaunt Co., Florida
THE
CITIZEN AND
IUDICIAL REFORMS Under Indian Potity
Editor
Subhash C. Kashyap
Oniversql
Lw
Publhhing (0.
ht. [td.
81-7534-31l-X
Centre for Policy Research, Ner'v Delhi 2002
Copyright [copyright
in individual
articles remains with the authors thereof]
or utilised in any form or by any means. electronic or mechanical including PhotocoPyin& recording oi Uy i"y information storage or retrieval system. without Permission in writing frorn the Publishers.
A1l rights reserved. No part of this book may be reproduced
Prtblished by
UNIVERSAL LAW PUBLISHING CO. PVT. LTD. C-FF-1A, Ansal's Dilkhush Industrial Estate. G.T. Kamal Road, Delhi110 033 Phones 7215334, 7458529, 7438103
Fax 9L-11-7459023 E-mail
[email protected] Website www.unilawbooks.com
Although eaery care hns been taken to aaoid, ertors or omissions
in this publication,
of thisi inadpertently, errors may cre?p in. The publication is being sold on tlrcconditioi and understandiig that infoinntion giuen herein is merely for guidance and liaaing autho,rity of, or binding in any uay ofl' the be tiken reference. It mu6t nithors, editors, publishers nnd sellers utho do not owe any responsibility [Z: fyy publica.tio.n damage or loss to any person, zuho may or ttltty .not be. .a purcluser of this on aicount o1 nry aitio,t tnktn on the basis of this pubtication. The publislrcrs shall be out obliged if aiy mistake, error or discrepancy is brought.to their notice for carrying coriection in th? next edition. In case of binding mistake, nrisprint or for missing pages purclnse etc., the prhlispers linbilitlt is limited to replacinrcnt within one montlt of, tlte only' b11 sintitnr cdition/rep nt.-Alt disputes nre nbject to Delhi Jurisdiction inspite"
Theviewsexpressedinthearticlesarethoseofthecontributorsandnot necessarily
of the editor or the Publishers'
Conlputer Typeset at Aesthetic
Printed nf Taj Press, New Delhi
CONTENTS Foreuortl
Vll
Tnble of Cases
PART
INTRODUCTION
Judiciary in Indian Polity Subhash C. Knslryap
PART
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
69
Judiciary and Legislature Biplab Dasguptn
IJ
PART III: THE CITIZEN, TUSTICE AND TUDICIARY The Citizen and Judicial Reforms R.S. Pathak
The Citizen and the Performance of the Iudiciarv Shiuroj Pntil
Citizenship Values and Quality of fustice Shio Daval
81
6J 90
Mechanism for Accountability and Making Justice more Citizen-f riendly and lnexpensive
N.Vittal
Common Man and fudicial Reforms Randhir lailt
Fundamental Duties of Citizenship and Administration of lustice K.V. Visltwanntlnn
106
t25 IJU
PART IV: APPOINTMENT AND REMOVAL OFIUDGES Quality of Judges
Murli
C. Blnrnlnre
Appointment, Transfer and Removal of Judges Shynmlha Pappu
147
LJZ
The Citizen and Judicial Reforms
Crlteria and Procedure for the Appointrnent of ]udges Mohendra P. Singh
Removal of Supreme Court and High Court Judges Satya Praknsh Malaoiya
Independence of Judiciary, Appointment of Judges and Rights of Citizens Pinki Anand
Quality of Judges
176
179
189
S.S. Vishweshwaraiah
PART
159
V: ADMINISTRATION OFIUSTICE
Probity in Administration of Justice
193
P.P. Rao
Pendency of Cases
195
P.K. Dat;e
Technology and Justice P,V. Indiresan
t97
Subordinate Courts Their lndependence, Appointments and Conditions of Service
206
K.N. Bhat
Criminal Justice Administration in Myth and Reality Rnnbir Singh
Reforms in the Crirninal Justice System
226
D.R. Knarthikeyan
Impact of Judicial Activism on Personal Laws K.M.H.Rayappa
217
Case Study
238
PART VI JUDICIAL ACCOUNTABILITY AND
CONTEMPT IURISDICTION
Contempt Jurisdiction
Its Parameters
Mohd. Sardar Ali Khan
Contempt of Court and Accountability of Judiciary
Anil Diwan
Judicial Accountability Prashant Bhushan
Subject Index
Removal of Judges and Contempt of Court
1AE
25b
259 268
FOREWORD "We the people of India" have completed more than half_a_cenfury of our life as 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. 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 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; can we bring justice to the common person in .rudibli ana peoite_ lld \9friendly manner. The centre for Policy Research has been involved for rong time in undertaking studies in the field of good govemance. Recently, as 'withof its larger project on political reforms, it organized in collaboration fart .the citizenship Development society 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 session to reforming the Judiciary. This volume is edited by Dr. subhash 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 few special papers on judiciary discussed at earlier conferences on Political Reforms.
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 removal of judges; flaws in the system of adminishation of justice; accountability of the |udiciary and contempt jurisdiction. 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 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. Besides
KB LALL
President, CDS
CHARANWADHVA 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) KC 209
209
Ashok Kumar's case, (1985)
207
Attomey General (1974) AC273 B.R. Kapur
zr.
z'.
SCC 417
Times News Papers Ltd., (1973)
State of Tamil Nadu, (2001)
All ER 815:
SCC 231
155
245,252 208
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
15 16
Brahma Prakash Sharma u. State of Uttar Pradesh, AIR 1954 SC 10
251
Justice A.M. Bhattacharya. i995 (5) SCC 457 Chand Dhawan z. Jawaharlal Dhawan,1.993 Cr LJ 2930
r57
C. Ravichandran Iyer
Ct$etriya Samiti
?,.
z'. State
of Uttar Pradesh, (1991) SCI 130
Chhetriya Pradushan u. State of Tamil Nadu, AIR 1991 SC 417 "Common Cause" Registered Society u. Union of India, (1996) 6SCC775: AIR 1997 SCW 290 Common Cause o. Union of Indi a, (1996)
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) LRI 36
238 1.6
16
98 98
207 240
lb
Gaurav Jain o. Union of India, AIR 1990 SC 292 Hira Lal u. State of Uttar Pradesh, AIR 1954 SC 743
El
Indra Swaney, (1992) Supp
209
SCC 217
Johnson o. Grant, 1923 K. 789 K.C. Sarin u. C.B.I.,2001 (6) SCC 584
245
Kesavananda Bharati o. State of Kerala, 1973 Supp SCR
ZJJ
104
Kewal Chand Mimani u. S.K. Seru (2001) 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, Led 60 (1803): US 137 Mehta o. State of Tamil Nadu, AIR 1991 SC 417 Mohammed Ahmed Khan u. Shah Bano Begum.AIR 1985 SC 945
Morris
u.
The Crown Office,1970 (2) QB
ll4
95, 103 L6
t5 JO
t6 239
z+J
O.P. Bhandari, 1986 (3) SCR 923
157
P.C. Sen (in
251
re), A1R1972K.1821
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 R. u. Gray, (1900)
ludicial Reforms
K.221
252,255 160
QB 36
251,252
Raj Deo Sharma u. State of Bihar, AIR 1998 SC 3281
Rajasthan
Union of India, 1978 SCR (80-81): Rugmani a. Achutha, AIR 1991 SC 983 z'.
gne)
97
SCCS12
1.52,233 76
S.P. Gupta zr. 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
15
1.8,46,154,1,@ +o
State of Rajasthan u. Union of India, AIR 1977 $C 1361
11
Subhash u. State of Bihar, AIR 1991 SC 420 Supreih6 Court Advocates-on-Record Associatlon u. Union of India,
AIR 1994 SC 268 T.C. Mathai zr. District Session Judge, (1999) SCC 614 Tehri Baandh z. State of Uttar pradesh, (1991) UJSC 121 Third Judges case, AIR 1999 SC Vinay Chandra Mishra (jn re'), (1995\ SCC fi4
1t
16
1.8,1.60,182
Vishal o. Union of India, (1990) SCC 318 Workers of Rohtas Industries Ltd. o. Rohtas Industries Ltd., AIR 1990 SC 491
102 15
767 207
l5 15
Part
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 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 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.
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 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 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 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 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 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 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 parlramentary polity, executive also is part of the legislature. It comes out of the legislafure, remains responsible to it and exercises powers of governance only on its behalf. under the scheme of the constitution of India,
ludiciary in Indian
Polity
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 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.
ii. iii.
extend the jurisdiction of High Court to, or exclude the jurisdiction of High Court from, any Union tenitory;
establish common High Court for two or more States or for two or more States and Union territory and constitute High Court for Union territory or declare any Cowt in any such territory to be 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 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 judge (articles 312(1) and (3)).
The validity of any proceedings in either House of Parliament cannot be
questioned before 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, 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 respect of anything said' or any vote given b1 him ih Farliament or any
committee thereof. Also, publication of any report, paper, votes or proceedings of Pariiament by or under authority of House of Parliament is protected against any court proceedings (articies 105(2) and L9aQ). 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
luilicial Reoieu anil Due
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
middle course and 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 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 manner that the law no longer remains ulrconstitutional. The U.S. Constitution (Constitutional Amendments) provides that 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 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 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 specific case through specific petition. It does not give its opirxion or advice on 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 result of the enforcement of the statute, and 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 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 member of 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 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 member of House. The Anti-Defection Law, has been the subject matter of controversy from the very 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 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 judicial determination of issues under the law and process of determinine the question of disqualification could not be considered part of proceedin"gs of the House and as such not amenable to iudicial review. The Suoreme Court struck down pata 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 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 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. 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 speech dellvered by member in the house may amount to contempt of court, no action cart be taken against him in any court. court being an outside authorify, does not have the power to investigate the matter.
The courts of law in India have recoghised that House of Parliament or State Legislature is the sole authority to jtrdge as to whether or not there has been a breach of privilege in 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 procedure framed by Houses of Parliament under article 118. Articie 121 forbids discussion in Parliament on the conduct of jtrdgbs except on 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
tB laying down 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. case
ludiciary in Indian
Polity
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 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 conaiction and imposition of 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 the liberty of the petitioner 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 petition under.article 226 of
the Constitution, sit 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."
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 the Allahabad 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.
The Government,
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 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
for the free and State Legislatures. lt should not be
be defined and delimited
indepmdmt functioning of Parliament and necessary to run to the 1950 position in the House of Commons eoery time question arises as to what kind of leg;4tl protection or immunity 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 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. 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
It
acts. second bsue that was raised in this case concerned the authority competent to sanction prosecution against mentber in respect of nn oJfence inuolaing
acceptance of a consideration for spenking or uoting in particular manner or for not aoting in either House of Parliament. 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 Member he or she is subject to the disciplinary control of the presiding officer in respect of functions within the
Parliament or snnction
in its Committees. It would, therefore, stand to reason that
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 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 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.
satisfied that Govemment of a State
if
the president is cannot be carried on in accordance with the
Constitution, he may issue 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 resolution of th" tuuo Houses of Parliament except during the operation of 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 usually 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 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 Proclamation under 356 depended on the subjective satisfaction of the President and 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.
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 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
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 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 Council of Ministers, under articles 163 and 164, it was the Governor's constitutional obligation to constitute 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 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 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 democratic Govemment." He saw no reason why the Govemor could not invoke 175 and ask the members of the Legislative Assembly to indicate articles 174 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 person to lead them as the Chief Minister. In fact, he said this would be most democratic and constitutional. Bench, Justice Ka$u observed that "it is settled law that constitutional authority cannot do indirectly what it is not permitted to do directly". His Lordship went 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 message to it under article 175(2) informing the House that he was unable to find someone
The third judge on
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 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.
Chief Minister, appointing Assembly, Governor Shastri, instead recommended President's rule which remained in operation until bargaining
between parties culminated in
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 carried on in accordance utith Union to ensure that goaernment of 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
proclamation imposing President's r*le ooer State if he is satisfted that situation has arisen in which the Goaernment of the State cannot be canied on in accordance with the proaisions of this Constitution but question may be asked when can the President Inu:fully hold that such situation has actually arisen. uery specific and categorical answu is contained in article J6S when
it says that where State fails to comply with Union directions (under nrticles 256, 257 ard others) "it shall be Inwful for the president to hold thnt situation has arisen in which the Goaernment of the State cannot be carried on in accordance with the proaisions of this Constitution" is unfortunate that before rushing to issue 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 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 federal polity, wherein there is constitutional division of powers between the federal government and ernments of the constituent units and 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 devices in the Indian Constitution which the of the for example, the constitutional provisions in.regard to the appointment emoval noval of judges, securitv of of tenure, salaries and service conditions, conditions_ iudges, security and allowances of judges being 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 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 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 letter that they conducted a survey of the stone quarries situated in Faridabad District of Haryana and found that there were large number of labourers working in such quarries under ,,inhuman and intolerable conditions" and many of them were bonded labourers. The petitioners entreated that writ be issued for proper implementaiion of the various provisions of the Constitution and Statutes with view to ending the misery, suffering and helplessness of those labourers. The court treated the letter as writ petition and appointed 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, writ petition was filed on the basis of 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 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 sick company to protect the livelihood of 10,000 employees, to look into the danger to safety in building 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) SCC 318; Workers of Rohtas lndustries Ltd. v. Rohtag Industries Ltd., AIR 1990 SC 491;TehriBaandiv. State of Llttar pradesh, (1991) 1-
The Citizen and
16
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. State of Llttar Pradesh, AIR 1990 All 52). I;ocus standi to file petition depends on the facts as they exist. Even journalist may file writ petition if the case falls in
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 Uttar Pradesh, (1991) 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 the courts befurg misused for vested political group interests and 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 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 solution of our problems. At best it can act as 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 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;
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 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 valid defence against charge of contempi of court. Also, the courts have sought to make distinction between criticism made by 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
down by constitutional amendment that
satisfaction of the
"it
shall open to the court on
fdes of the plea and of the requirements of public interest permit defence 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 the Supreme Court's power 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 limited power only to amend and carurot extend to abrogating or annulling tire Constituiion or bona
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 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, 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 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 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 vicancy in the the Chief Justice of India, the.senior-most judge shall be appoinied unless the retiring Chilf Justice reported that he was unfit.
oific;f
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 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 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 media furore. All sorts of hidden meanings were sought to be given to the President's remarks. 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 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 seminar that "it is 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 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 the not allowed to be eroded in any way is as much the responsibility 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 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 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 Government on 31 March this year has chapter on judiciary. As
to
the
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. According to one former C.ll. (lustice E.S. Venkntaramaiah), in 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 parliamintary democracy the President may be mere constitutional head when the power is exercised by him on the adaice of the Council of Ministers he cannot be asked to play 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 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. . .', .* Obaiously there has been some rethinking on the subject. former C.l.l. (lustice ].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,
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
"National ludicial Commission, representing aII wings, headed by the Vice President/ Prime Ministei Chief lustice India' ."" "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 fortiori when 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 best be done by
the Judiciary or Legislature or Executiae, the Supreme Court's approach has to be in the following manner as obseroed by the Supreme Court ln Re Special
Reference 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 E.S. Venkataramaih, The Working of Indian Democratic polity
Zakir Hussain Educational
Administration, New Delhi.
An Appraisal, Dr. cultural Foundation and Indian Institute of public
Verma, The Judiciary and Judicial Reform 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 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 National ludicial Commission for making recommendation as to the appointment of ludge of the Supreme Court (other than the Chief Justice of lndiil, Chief lustice of 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
(d) The Unian Minister for l-aw lustice." "The National ludicial Commission shall meet as round table. While meeting for making recommendation as to the appointment of ludge of High Court, the Chief lustice of the concern HiCh Court shnll also be associated as Member of the Commission." Proposals
for appointment of ludgu should originate either ftom the Chief
lustice of lndin or the Chief lustice of
High Court, as the
case may be."
"The retirement age of High Court and Supreme Court ludges should uniform and it can be 65 years." "The retired judges should not
be nppointed to
be
any paid appointment under
for post-retiremmt non-paid assignments, it is recommended thnt, to eliminate roorn for irreleuant considerations, it would be the Goaernment. Howmer, eom
approprinte to proaide ns
matter of law that where a retired ludge is sought to
Tribunal/Commission or similar other body, such appointment should be made in consultation with the concerned Chief lustice. ln the case of appointment of retired ludge/Chief lustice of the Supreme Court, the Chief lustice of India will be consulted and in the case of appointment of judge/Chi{ Iustice of the High Court, the Chief lustice of that Court should be mnsulted. $uch course would help in eliminating
be appointed to
irreleuant considerations and utould also facilitnte appointment of approprinte
persons to these bodies."
"As regards the transfer of ludges, it should be as matter of policy and the power under article 222 and its exercise in approprinte cases should remain untouched. The President would trnnsfer Judge from one High Court to any other High Court after consultation with 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 ud icial Commission Remooal of ludges; Every judge of the supreme Court hords office until the age of 65 years. 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 majority of the total membership of that House and by 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 judge. The impeachment is proaided for the president and none else. Also, there is fundamental difference between removal procedure and impeachment procedure and between the impact of the adoptionof motion for impeachment and the passing of a motion for presenting an address to the President seeking orders for the removal of judge. The grounds for the impeachment of the President have to concern 'violition of tI-re Constitution, while an address for removal of 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 !onoyr". The long summer vacations which enabled the British judges to visit 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 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 "1"_.9i addition. 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 holidays that cause delays in dispensation of quick _long
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 worries. law to seek justice invariably have many tales of diverse woes
Things have come to such pass that the ordinary law abiding citizens are afraid of approaching the police and the courts for seeking justice' 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 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 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 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.
The key players in the judicial prbcess are the litigants, the police and other investigating agencies, the lawyerb and the judges. Rightly or wrongly, lawyers as class have always been taken to be an unscrupulous lot not troubled by ethical and like considerations. Thanks to the ready assistance of crafty lawyers, it is not uncommon for the police and the courts being misused 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 in for out of court settlement or to avoid rarely counsel their clients to 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 the entire 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 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.
l1l.
Improving the quality of legal education and training; attracting better raw material to the Bar and the Bench. vi. Informal Interaction Sessions between judges, advocates, heads'of investigative agencies and litigants, the philosophy of judicial aloofness no more valid.
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.
Judgments to be short, precise and to the point, not like Ph.D. theses
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 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 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, time bound programme may be devised and announced.
xv.
dispassionate study may be made which may need immediate review.
of Supreme Court judgments
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, 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 Vol. II of the [see
Reportl.
For the recommendations regarding the judiciary made by the NCRWC, see Annexure. Conclusion:
If
freedom and democracy have to endure and faith in the system restored, judicial are 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 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. 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) The Chief Justice of India (2) Two senior-most judges of the Supreme Court (3) The Union Minister for Law and Justice (4) One eminent person nominated by the presidenr
Chairman Member Member
after consulting the Chief Justice of India Member The establishment of 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
(2)
Morms
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 fuller investigation or inquiry, it shall refer the matter for full inquiry to the committee [constituted under the Judges' (Inquiry) Act, 19681. The committee under the Judges Inquiry Act shall be Dermanent committee with fixed tenure with composition indicated in the said Act and not one constifuted ad hoc for 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 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 and sub-section (1) of section of the said Act and submit their report to the Chief justice of India, who shall place before committee of seven senior-most judges of the Supreme Court. The Committee of seven judges shall take 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, proved are so serious as to call for his removal (1.e. the charges proved misbehaviour) or whether it should be sufficient to administer 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 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 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 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 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 single distinguished iurist has been appointed. From the Bar also, less than half dozen |udges have 'been appointed. It is time that suitably meritorious persons from these sources lPara7.3.9l ur" uppoittt"d. (4) The retirement age of the judges of the High Court should be increased to 65 years and that of the Judges of the supreme Court should be increased to 68
yeirs.
[Para 7'3.10]
ludiciary in lndian
Polity
29
(5) In the matter of transfer of judges, it should be as matter of policy and the power under article 222 and its exercise in appropriate cases should remain
untouched. The President would transfer Judge from one High Court to any other High Court after consultation with committee comprising the Chief Justice of India and the two senior-most fudges of the Supreme Court. [Para7.3.1l] (6) 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 power to punish for contempt of itself. lPara7.4.7l (7) 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 provision may be made as clause (5) of article 226. [Para 7.5]
'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 (8)
(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 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 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 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 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 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 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. (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 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 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 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 modest scale, and the possibilities of advancing the crying need for social justice in very real sense/ are attractive enough for the State to find money to float the scheme
immediately.
[para7.Ii.4l (26) The National Informatics Centre in collaboration with or with the assistance of the Indian Law Institute and the Government Der:artments should set up 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 two-tier of subordinate judiciary under the High Court. Further, strict selection and adequate 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'
''
32
The Citizen and Judicial Reforms
could set for, say, 100 days in 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 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 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 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 RsronMS |uolcIAL
WHY HAS TUDICIARY FAILED? Shanti Bhushan*
Although it is more than 50 years back that India constituted itself into 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
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 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 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. 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 serue but unless there is 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 time, they represent reality as eroding the confidence among the judiciary and, therefore, not permlssible in 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. 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 the lowest level to the that the jr.rdiciary would be manned at every 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 very long time has been the profession of last resort by the students. In fact, if we go to the marriage market which is 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
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 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 LLB degree 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 little better pay scales than the IAS because adr#nistLtion of jusfice is very important thing. The life of the common man particularly in 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 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 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
justice in this country which will
as to how to have an adrninistration of 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 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 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 case should be decided because after all decision of case is not matter of luxury. It has certain prlrpose. The most important purpose is that if we give relief to 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 court, court will take 20 years, then there would be appeals, they will take another ten years. So, the man will get tired. couple of rhonths back, there was case in the Supreme Court which arose among the members of very rich Hindu family of Karnataka, 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 suit for partition in 1948. Suit for partition involves first passing 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 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.
Only very recently,
criminal case, if person commits 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 landlord has right to evict 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 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, am going to be evicted and for my contirtrued occupation for three months also, maybe, the five times rent that 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 criminal case, after the investigation is complete and the police have filed charge-sheet or the private person has filed complaint, what is required is only witrfresses. Witnesses have to be produced, In
they have to be cross-examined, charges framed and thereafter arguments heard and judgments delivered. By and large except in 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 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 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, 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 small country. The entire Supreme Court matters are discussed and we found that they have three tier system, trial court both in civil and criminal, one appeal on fact and law both a.rd- finally revision to the Supreme Court of Iraq on questions of law only. In every all the three stages are over within one year. If Iraq can organise its judicial system in this marmer, why can India with culture of 5000 years, not organise things in such 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 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 reply etc., may require two weeks and couple of months may be needed for 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 work gives to person, there is no higher pleasure which 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 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 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 time. The abler the judge, the humbler he feels. retained their 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 for getting respect' not depend upon any arrogance or any assertion of 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 lot of pleasure if 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 professional misconduct committed by 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 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 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 lawyer or the professional worlh of 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, controlling voice cannot be conceded to it. At the same time, 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 majoriiy representation. The Committee on Judicial Accountability had suggested five-member commissiory Chairman to be nominated by the Chief Justice of India and the other Judges of the Supreme Court sitting together as collegium. One member also to be nominatei by 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 collegium of Attomey General, solicitor General and all the Advocates General oi states could seiect such 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. do not find any fault with the expression of impeachment. Impeachment is one method of getting rid of person. You may call it impeachment, you may call it motion for removal etc. That is technicality. But in any case, that system had failed in Justice V' Ramaswami Members of the Parliament politicalised it. case because it was found that And, therefore, one political party, all the MPs refused to even vote one way or the other. This was almost iudicial fut'tction to decide whether 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
happy. \a/hy should they need system in place to curb them' But the were people of India need 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 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 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 body, complaints can come from any source, cotrnplaints may be false, complaints may be true but unless there is body with statutory powers of investigation like the police, they can lay trap. They can collect any other evidence. common marl even member of the Bar who knows that particular judge is corrupt has no means of proving it because he cannot collect evidence. Only a statutory authority will be in 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 for doing away with black sheep.
Why has ludicinry Failed?
wl,'ut does independence of judiciary exactly mean? Because there has always been 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 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, 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 heft or causing hurt, it does not require too much of expertise, namely to
examine the witnesses and come to 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 justice even in small matters, it is matter of very great respect. we will get lot of respect from the society particularly if we are doing things in 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 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 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 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 part of the basic structure and Judicial Review, including independence of the judiciary, is 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
constitutional promise in the preamble Jh" Equality
45
envisages justice, Liberty,
and Fraternity assuring the dignity of the individual and unity and integrity of the nation. These are the core values of the hdian polity. The of administration of justice must ensure realisation of this promise of 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 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 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. The provision for appointment of judges in the Supreme Court and High
Court, contained
in
articles 724 and 217, rcmarns the same as originaiy enacted, but the need for 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. 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 Llnion of India, AIR 1994 SC 268] wherein primacy of the opinion case [SCAOR 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 joint in which both have role to play' participatory, the exercise However, some dissatisfaction with this led to the presidential reference and the Third ludges case [Special Reference No. 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 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 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 view to Promote 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 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 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 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 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 in the legal 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 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
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 significant source of supply for the constitution of the higher Judicial Service. With conditions of service at par with IAS, more young
the Bar to constifute talent would be attracted. Recruitment from AIJS 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 judiciary and if the quality there affected by the working in the deteriorates, public faith shakes and the workload of the higher courts increases. It has direct impact on the work in the higher courts where also the quality suffers because of the greater workload. database containing profiles of all judges to provide an objective basis for selection from amongst them is needed. National Judicial Commissiory
representing all wings, headed by the Vice President/ Prime Minister/Chief the Supreme Court and the selections/ appointments Justice of India to 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 judge has been found wanting. The sole instance of an attempt to remove Supreme Court judge did not work in spite of 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 democratic
48
The Citizen and
ludicial Reforms
republic wherein political sovereignty ve$ts in the people and equality is 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 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 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 district judge up to the time he is district judge is governed by certain service rules and he has to make declaration of his assets every year but the moment he becomes 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 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 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. 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 well-known adage. It is not mere cliche but the general impression of the current state of the lndian judicial system. This was the ground taken in 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', basic right of every individual and 'equal justice, promised as 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 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 bane of the rule of law. Thereby the democratic form of governance would receive 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 part of the guarantee thereirl it remains confined, as yet, only to the theory with its translation into rea-lity, 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 sufficient ground to quash the trial, is matter of serious concem. 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 functional democracy not merely survives, but has 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 higher right in the people, the higher purpose to be served which must be treated as included in article 21. The expeditious trial has public interest for the purpose of acquitting man if he is not found to be guilty and for punishing him if he is found to be guilty. It serves 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 fair trial is not possible because the evidence available against man, even if he is guilty, may not remain available. Ultimately person whom society believes and knows is an offender who has committed 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 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 duration longer than is necessary. This requires 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 cfime is the concem of society as whole and not merely of private parties as in the case of civil litigation. Delay in the trial of civil matter adversely affects the right of the party which ultimately succeeds and it may not be matter of any consequence to the others. However, in 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 the conclusion of 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 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 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 very disturbing kind of criminal cases, that is, offences committed in relation to narcotics and psychotropic drugs. The experience is that quite large number of cases which are put up mainly for statistical purposes/ are really false cases. It is not unusual to find commorlstory. Some time back found that in one particular state the standard story in so many cases was that woman was found walking with 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 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.
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 big way. Experience shows many of these cases to be false. Such cases leave 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 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 Cases relating to gender justice are throwing
up
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 in the High Courts, is 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 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 part of the basic tenet of rule of law, has its own impact on the mind of the people of India. Proper court management by adopting methods of advanced technology is
now in vogue. Computerisation has already shown positive results in the phased manner Supreme Court and the facility is being extended in throughout the country. Clubbing of like cases and listing them together is
regular feature. Streamlining the existing legal process to reduce case-liIe is serious method already adopted in the courts. 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.
52
The Citizen and
ludicial Reforms
The setting up of the National Judicial Academy for pre-service and inservice training of judicial officers is step in this direction. 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 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 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 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 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 of the mechanism, unless the commitment and efficiency of those who work the mechanism improves, better 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 January, 7992 was 1,04,936 and on January, 1993 it was 97,536 according to the hyphenated numbers in vogue till then. This came down to 58,794 as on January,1994 with the introduction of 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 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. 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 cases 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 Novemb er, 1994 as a result of improvedcourt rnanagement techniques. As on january, 1995 it was reduced further to 52,950 and on January, 1996 it was 37,168.The figure of pendency as on 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 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 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 very significant role in this direction. 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 ludicial Refotms
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 available strength of the judges delivers what is expected of ensure that 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 would be an effective step participation of the Bar with its fulI 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 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 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 move, therefore, need not trouble the judges as class, most of whom practice self-discipline.
ludiciary and ludicial
Reforms
55
A number of simple and easily implementable steps can go 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 little initiative. These iases constitute what may be called "artificial arrears". In most such cases, the need and compulsion for 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 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 fixed term and specified number of cases could be allotted to them for disposal within 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. 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 short-term basis for trying petty criminal matters which clog up the cfiminal justice system;
Introduction of
system of 'plea bargaining' in certain cases;
Compensation for victims of crirnes;
Decriminalization of some
offertrces;
Fostering more and effective collaboration beLween NGOs and governmental agencies and promoting the work of NGOs by providing means, assistance and infrastructure;
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;
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 similar or, may be, 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 basic part of the basic structure of our Constitution. feature "Judicial activism" is 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 functional democracy, not merely tottering democracy, but 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 fundamental right only of an individual, but when there is violatiory or infringement of the
fundamental rights of section of the people or 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
Constitution itself.
the
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 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 case is actually brought before them. This is not proper and ftlll appreciation of the role of the judiciary. As the obligation for implementation of the Rule of
58
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 gross violatiory or infringement of fundamental rights of is so great, that it affects the 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 guaranteed locus to bring the matter to the court. Access to justice is 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 functional democracy, in greater public interest. It is not optional, but obligatory because article 32 itself is 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 large section of the people and often not merely large section of the people, but the nation as 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, direction to person or agency to perform its legal obligation. public officer who holds public office or has public duty to perform, and fails to perform his duty, can be compelled to do so by issuance of mandamus.
mandnmus is
Let us assume there is commission of crime of some magnitude and there is at the very first step default in the detection of the cdme or even if it has been detected, then 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 proper investigation 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 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,
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,
process of trial of
the
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 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 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 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 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 common man are taken away, but that does not mean he ceases to be human being. Even 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 part of the human resources of nation. person may have committed 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 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 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. 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 ripple effect in 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, large police force would not be required for security arrangement. If such 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 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 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 The last part of the criminal justice system, which deals
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. As for specifics, the three main areas of focus in terms of penal reform in the region ought to be: Independence of the police. Reduction of the backlog of pendirrg cases. 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 crime and putting up an offender for trial, indicated \ow much insulation is required for police officer' from any extraneous influence including the influence of the person who may be the departmental head in the form of even minister and pointed out, "I have no. hesitation, however, in holding that like every Constable is the Secretary of the State, 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... 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
Reforms
61
duty exists, there should be means of enforcing it. This duty can be enforced 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 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, 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 complementary role. There can be no reason why 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 different image. In this connection little closer look at the true role of the police force may be required. The policemen perform 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 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 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 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 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 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 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 towards the administration of justice. The role of the govemment can be easily assessed from the fact that the government is 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
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
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.
of the Bar
The Bar also has 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 casual entry without the minimum required expertise. This is duty owed also to the litigants who must be assured of minimum level of legal expertise in the members of the Bar from amongst whom they choose their co"unsel. right step in this direction has been taken by the Bar Council of India. There is 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 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 of access to justice to litigants is disturbing. Even assuming the demand of it necessary to devise some other lawyers at given time to be mode of protest instead of closure of the ctourts. news item tn The Times of India dated 20 December, 1994 under the headlng "Court closures take 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. 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 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 matter of serious concem to the Bar itself. Professional Conduct and Adaocacy by K.V. Krishnaswami Aiyer is 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
very useful book
Justice of India. In the Foreword, Sir Maurice Gwyer after quoting the author who said, "Every member of the Bar is trustee for the honour and prestige of the profession as whole", proceeded to indicate *re utility of that book thus: .The student or young adaocnte who reads this book wiII learn why that is so. He zuill also understnnd better than he did before that the law is great nnd noble profession, whateier its critics may say and Inw itself great and noble science, the king of kings, as the sacred books of this country call it; and he will, 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"
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 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
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 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 scheme should be devised to check the mercenary trend in the legal case. profession and to enable provision of lawyer according to the requirement of 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 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 changing role to meet the current societal needs. Judges have 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 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 step taken in new direction is fraught with the danger of being likely step in wrong direction. In order to be path breaking trend it must be sure step in the right direction. Any step satisfying
these requirements and setting new trend to achieve justice can alone be new dimension of justice and 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 renaissance of values. This alone is the answer beca*se ultimately the worth of 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 system of Honorary/Special Judicial Magistrates. 5. Adoption of system of plea bargaining as recommended by the Law Commission of India.
6. Adoption of crim ina
7.
system of comppnsation for crimes on the analogy of injuries compensation.
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
through computerisation.
improving court administration
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 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 system which ensures that the trial of every criminal case should be completed within maximum period of six months and the maximum period of detention as an undertrial even for the most heinous offence should not exceed period of six months. 18. Greater financial grant to the judiciary with requisite financial autonomv is necessary. It may be advisable to fix 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 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 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 conscious effort to develop the proper perception is the need. It is even more in judge because he sits in judgment over his fellowmen. The ideal difficult to achieve but the duties of the public oblige iudges to do their best.
of the issues pertaining to the area of iudicial reforms which need to be seriously and objectively debated to find 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 These are some
'right to life' with dignity shouid be trantslated into action. This is the demand of the promise of equal justice for all in democratic republic.
c6t&)
SOME ASPECTS OF TUDICIARY Raiinder Sachar*
The judiciary has always been recognized as one of the co-equal institutions of State along with the executive and legislature. But in the recent some may past, the public has magnified its stature manifold disproportionately. No doubt great tribute. But then it means that the courts' must be prepared to suffer
close scrutiny of its action.
The judiciary, in spite of its quite visible drawback5, continues to enj9y sense of faith and confidence amongst the public. That is good sign, because 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. am, however, taking the course of 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. 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 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 Seven-Judge Bench. 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 new court for period of one or two years to which he is total stranger and may be not even knowing the names of his colleagues, nor even the language of State. It is strange concept of advancing the administration of justice. Former Chief Justice of Delhi High Court. 69
70
The Citizan and
ludicial Reforms
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 The_
individual judges, 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.
am all for proceeding against those judges against whom even
reasonable suspicion exists. selective Tratrsfer instead of GeneraI Transfer could be understood. Foriunately the policy of transferring Judges is falling in disuse.
But instqad more harmful ind illogical pollclihas -been e.,olv"ed by the judiciary-namely of appointing Chief Justice from outside the court of which he was
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 leadership role, especially as some appointments of o'tside Chief Justicei hive been made even for period of less than year. It must be emphasized that the
High courl. exercised administrative conirol and superintendence over the whole of state's judiciary, unlike the Sr,rpreme Court, which is only the final court of appeal in judicial matters without any administrative control. chief Justice of High Court, therefore, plays 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 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 preference to experience. Is there any special reason why the judiciary wants to devahre experience and, thus, reduce its own effectiveness. feel that continuing the policy of general transfer of Chief Justices in these circumstances is too excessive like using hammer to kill 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 shadow whether cast by political strangers or by judicial colleagues,,. I do not underestimate even for 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 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 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 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 Supreme Court Judge can be expected to work properly upto the age of 6g years (the extended age recommended) why 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 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 case of Judge who may have chanie to become ttre 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 dislocation of the Judge's family and normal pattem of life. Though in not too distant past integrity at 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 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 him was not the measure of month but probably even of less than week. Therg is no quick remedy. Realising that impeachment proceedings alone
is not the answer National Judicial Commission
recommended by
Constitutional Commission could do some salvaging. of course, details and the personnel of ]udicial Commission rreed to. be debated am, however, convinced that leader of opposition in parliament must be 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".
72
The Citizen and
ludicial Reforms
But for pithiness and depth do not think that one can improve what was his Essay "Of Judicature" namely "Patience and gravity of said by Bacons hearing is an essential part of justice; and an over speaking judge is no welltuned cymbal. It is no grace to 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 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 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 "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 basic amending powers of feature of the Constitution and hence beyond
Parliament.
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
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 am
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 decision which may and does cause administrative anomalies and loss of morale. Thus 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 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. do not mind confessing that 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. may sound reactionary to these so-called animal lovers, but if ever
74
The Citizen and
lruticinl Reforms
choice was to be made between preserving the Human Right to shelter of slum dweller or the so-called envi onmental standards laid down bv. first rvorld. 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 sound bit harsh, 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 criticise it so freely. .. But one may criticise even what one reveres. ... And should show less than devotion. if dii not do what in me lies to improve it."
(,6&)
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 issue concerned is already before 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 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 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 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 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 Prime Minister who asked his party men to abstain from voting. In our country judge of the Supreme Court is taken as demi-god who can do no wrong. For him to be removed for misbehaviour was alost sacriiege,
growing among people, which unthinkable in the past. Now conviction may or may not be wrong, that corrupt judge will never be disciplined by the
judges themselves.
Perhaps, taking the Supreme Court judge as demi-god is wrong. This is more clearly seen when judgments are analysed and their impartiality is tested.
judge may not be partial knowingly. He may think that he is impartially giving 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. judge, like any other persory is product of the ,society and its history. Like any other person, he has 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 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. judge from 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 given background and hold 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 others. From the begiruring of Indian judiciary, this has been different maior problem with us. When the British interpreted our laws, they interpreted in their way. In each case, they found parallel between our institutions and theirs to conform our laws to their understanding of what law should be like,
ludic
ia41
/t
and Legislature
that based on their own experience in .h.i. o*,' .o.,r,.try. It is natural of-what *iii try to .roa"rstandiaws and customs in their own terms, irrespectivelandlords. exists. Lord Comwalis enacted permanent settlement for the the people
because he was 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 soc;etylnd inequality wis like an engine which ensured be more was God's law, tire British iolonialists would argue, that some would ruled' like the 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 tne re"tir,g u, *u promotioi, transfer, retrenchment, salary, and so on, there should be and i;;;;tt."; that are self-regulatory and ire immune from corruptionthat subjectivity. Just because soire one'is judge, it should not be assumed p".i"" i, a'Uorre att kinds of human caprices. There has to be 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 done, but also it should be seen as hiving been done", we learnt this heart in the early days in our classes of jurisprudence' Several years ago we experienced 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 strongly worded resolution decrying the judiciary and openly and an advocated confr6ntation with it. At the end, good sense prevailed level understanding was reached to wait. Next day' the iudiciary.at hi8h:: the end pulled up theJudge concemed for making those remarks' And that was of that chaPter.
ThereisalackofunderstandingofcontemptlawsintheParliament.'Itis o{ judge' not known that, as long as motive ii not imputed on the iudgmen! is not that in" ."*, is subiect to p"ublic examination like any other document. It legislator is refrained from saying that the iudgment is wrong'
(6&)
Part
III
THU ClrrzEN/ |usucn ANo juucrARy
THE CITIZEN AND ruDICIAL
REFORMS
R.S. Pathak*
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 the ftinctioning and future progress of tl:rat irstitution. There comes
Law and Justice are fundamental features of 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 civilised community. They underlie the aspirations and expectations within which the human psyche exists and operates.
well ordered society governed by Law and Justice is India's imperative need, more so today than ever before. We have 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 rising curve of crime and violence. Besides this, changes inevitable to the several dimensions of 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 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 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 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 profound influence on India's intemational trade and commerce. In the long term, 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 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 valedictory address arrd within the limitation of time, shall not attempt to traverse the contents of thht debate but 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 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. 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 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 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 Chief Justice should be appointed to High Cor"rrt from outside the state. Those appointments should not be made as matter of course. They should be govemed by careful consideration of the needs and problems of the High Court to which the appointment is made. chief Justice needs to possess strong administrative abilitt the wisdom to promote unity within the court enjof the full confidence of all his brother judges. He must be above all man who is known for his strength of character and highly developed moral sense, both in regard to his judicial functions and in his personal life. In India it is difficult
to draw
line between the public personality and the personal life of
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 Chief Justice.
Another aspect which instantly calls for attention is the general criticism that Chief Justice, selected from the judges of other courts, holds office as chief Justice for 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 suggestion which offers itself is that Judge of High Court lhey ye1e. 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 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
accepted as
matter of policy. In that context,
would sugtest that before the transfer of 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. am told that in some cases 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 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 measure of substantial public benefit, there have been few cases where the court can be said to have ventured into domain plainly beyond its proper jurisdiction. 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
Finally, while we hear persistent voices for Judicial Reforms,
it
is
necessary to remember that in any system, substantive or ptocedural, devised as measure of reform, success can be achieved only by 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. be very the time taken dispensing justice The citizen wants 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 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. person who can offer to pay fees of good lawyer has better chances of winning the case against person who cannoi engage 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 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 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 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 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
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 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 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 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 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 law in 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 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 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, Minister cannot remain Minister if he becomes Serlator. Or if 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 Minister is not 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 confligt at times between these three wings. There cannot be 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 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 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, 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 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 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 have to speak for half an hour, think for eight days and if have to speak for five minutes, think for two months. So, written speeches are really welcome in the Parliament also and the copies of the speeches have to be to the 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 part of life. Ncw everything and anything which has to be
in
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, 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 position to perform their duties in better marrrer. There is no doubt about it. But as far as the wishes of the people are concemed, nobody is as equipped as 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 person who is better informed about the wishes of the people, the opinion of the people. And if democracy is 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.
done
(,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 citizens of India the ten commandments. each of which is Drefixed bv mandate:"It shall
be the
the the
duty of nery citizm of India...."
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 improvement in the application to the administration of justice., will bring four fold quality of justice, namely, Unpolluted Justice, Substantial fustice, Speedy Justice and Inexpensive Justice.
Unpolluted Substantial
r,rsrrcE Inexpensive
Former Chief fusticg Madhya Pradesh High Court. 90
Speedy
Citizenship Values and Quality of
lustice
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 duty prohibitory in nature that nothing derogatory of the upholding or protecting the sovereignty, unity or integrity of India shall be done.
(ii) (iii)
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. 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 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 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 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
administration of justice.
to all the constituents
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
(i) Tmth (ii) Justice (iii) Independence (iv) Sacrifice (v) Perseverance (vi) Fearlessness (vii) Selflessness
are:-
Some Corollaries
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. Fees payable
Payment of Professional Fees to the Lawyers prohibited by law.
in
cash should be
Working days for the Courts should be 220 days (minimum). Long summer and ryinter vacations must be abolished. Clause (f) of Article 51A imposes
duty on every citizen of L-rdia
to:-
"Vnlue and preseroe the rich heritnge of our composite culture"
(i) After all
(ii)
Constitution like machine is lifeless thing. It acquire life because of the men who control it and operate it, and India needs today nothing more who will have the interest honegt a set country before them.
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 repository of noble ideals and they are essential in preservi4g the rich heritage of our composite culhrre.
Citizenship Valttes and Quality
(iii)
lustice
93
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
come to us from the entire eternal law of life "May good universe". Our nation his '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:-
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 rich heritage of our composite culture and
social ills.
ii
panacea for all administrative, political and
(vi)Arichheritageofourcompositeculfureisman-makingeducation
initiated fromihildhood andiontinued throughout life. 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 citizen commits theft, he is punished with imprisonment or with fine or both; this is law. However, if the cltizen takes determined revolve within himself that he will not commit theft even if the whole world may, this is higher law (Asteya); (b) If 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 citizen commits cheatin& he is punished; this is law' However' if
The
Citizen and ludicial Reforms
the citizen takes determined re'olve within himself that he shall not cheat or deceive anybody; this is higher la (Satya);
(d) If
citizen takes bribe he is punished; this is law. However, if everv citizen takes determined resolve not to take bribe, io gi"'" bribe, even if the whole world may; this is highe ?aw (Aprigraha); ""a ".t ,,iJ (e) If citizen o-utrages the modesty cif woman he is punished, this is law. However, if the citizen takes determined resolve that he shall arwavs look upon women as his mother, sister or daughter, i, hi;h";-;; (Brahamacharya).
(vii) our culture which is a composite best.
cl.tlture of seaeral
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 in the Constitution for judiciary which will be independent. It is dfficult to suggesl anything mbre tu make the Supreme Court and the High Courts independent of the influence of the Executiae. lhye is 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:
paid appointment under the Govemment, of 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 to 70 years.
Supreme Court Judges must be raised
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
oflustice
Refresher Courses for
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.
The emoluments of Judicial Officers should be revised according to the recommendations 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.
of
Clause (j) of Article 51A provides that "it shall be the duty of every citizen 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 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
Trioeni, which has the potential to raise the nation endeavour as may be desired.
to the highest level of
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) SCC 512 (529), it is the trite knowledge that presently, the law courts are
The
Citizen and ludicial Reforms
being guided by 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)
suit is filed in the court,, 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 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 short date fol framing issues. Before
(iv) Punctuality Wifnesses.
should be strictly observed by Judges, Lawyers, Parties and
(v) The judge has to identify in delaying.
each case, which of the party is interested
in
(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, 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 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, 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
lustice
97
No pass over should be granted. However, one Pass over may
be allowed to 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 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 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 for Registration rebate of 25 per cent of the Stamp law, if Duty should be allowed' 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 photocopy to the parties concemed, while retaining one photocopy for his record' The maximum Starnp Duty on 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, In cases where the trial is for an offence punishable with imprisonment for period not exceeding seven years, whether the accused is in jail or not, tire court shall close the prosecution evidence on comPletion of 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. In such cases as mentioned above, if the accused has been in jail for 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. If the offence under trial is punishable with imprisonment for period exceeding 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
To recall Dr. B.R. Ambedkar Speech, at the close of the Constituent
Assembly:
"If we wish to maintain democracy, not merely in form, but also in fact, what must we do? The frst thing in my judgment we must do is to hold fnst to constitutiotnl methods of achieaing aur socinl nnd economic objectiae. It means that we must abandon the bloody Methnds of reoolution. It means that we abandon the method of ciail disobedience, non-co-operation and satyngrahn. When there was no way Ieft for constitutionnl methods for achieoing icinomic and social objectiaes, there was gredt deal of iustifuation for unconstitutianal methods. But where constitutional methods are open, there can be no justifcation for these unconstitutiofial methods. These methods are nothing, btrt.the Grammnr of Anarchy and the sooner they are abandoned, the better fur us"
When the lawyers go on strike for redressal of their professional grievances and stall the working of the courts, it is in contradiction to and infringement of the Fundamental Duty enshrined in (a). In consequence, thousands of cases fixed for the day are adjoumed and the entire working of the court is disrupted. For Redressal of Professional grievances] representalion can be made to the relevant authorities or to thd legislature. Redress can be sought under the remedies provided in article 226 and 32 of the Constitution. If at all public demorutration is felt necessary, silent rally before or
Remoanl of Supreme Court and High Court Judges
777
President. Strength of Supreme Court was then 7, now it has risen to 25. Prior to the adoption of our Constitution on 26th November, 7949 under the Govemment of India Act, 1935 Judge of the Superior Judiciary could be removed if the Judicial Committee of the Privy Council on reference by His Majesty reported that he is unfit to hold office on the ground of misbehaviour or of infirmity of mind or body.
In fact Permanent Judge of Allahabad High Court Justice S.P. Sinha was so removed by an order dated 22nd April, 1949 passed by the then Govemor General of India, C. Rajagopalachari who accepted the Report of the Federal Court of India under section 220(2) of the Govemment of India Act, 1935, as adopted by the India (Provisional Constitution) Order, 1947 and the India (Provisional Constitution) Amendment Order, 1948. In this case petition containing certain charges against Justice Sinha was forwarded by the Govemment of the United Provinces now Uttar Pradesh. He was appointed Permanent fudge of Allahabad High Court in October, 7944 and the charges against him having been proved, he was removed on 22nd April, 1949. Thus, before the enforcement of our Constifution, only one case of High Court Judge was successfuliy enquired and by awarding punishment the Judge was removed. But since the enforcement of our Constitution, only in one case article 124(4) was resorted to but removal of the Supreme Court judge could not succeed because political considerations crept in. Currently
debate is going on in the counhy for devising mechanism to bring errant judges of the superior judiciary to book in order to remove them. Justice J.S. Verma, the 27th Chief fustice of India favoured model code of conduct for fudges and once said, "If we do not question ourselves the people may enact law empowering somebody else to question us". Within few days of his retirement justice Verma spoke about corruption in the judiciary and the
failure of existing mechanisms to establish norms of conduct to bring errant
judges to book.
Judges of Supreme Court and High Courts should always remember, "Be you ever so high, the law is above you". Everyone is equal in the eyes of iaw. No Judge can be law unto himself. There are only
few judges who do not perform their duties with dignity
and bring disrepute to superior judiciary and high constitutional office which they occupy. The expectations from our superior judiciary are very high. It is expected of them that they set high standards of conduct in public and professional life. Misbehaviour by Judge, whether on the bench or off the bench undermines public confidence and credibility in the administration of Justice. Justice S.P. Bharucha who retired recently as the Chief Justice of India was
reported to have said in public function at Kerala that 20% of the judicial officers were corrupt. Thls inter nlia implied that one out of every fifth Judge was corrupt. Justice Venkataramayya of Supreme Court on retirement observed, "judges should resist temptations. They should not be seen with gamblers,
178
The Citizen and ludicial Reforms
punters and economic offenders. What will be judge's image if he is found with such persons". He further said, "A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integrity of the entire judicial system". Former Chief Justice of the Supreme Court E.S. Venkataramaiah bemoaned "Judiciary in India has deteriorated in standards because some of the judges are
willing to be influenced by lavish parties and whisky bottles". Thus condemned the habitual "dine and wine judges".
he
The consultation paper on superior judiciary prepared by the National Commission to review the working of the Constitution headed by Chief Justice (Retired) M.N. Venkatachaliah states: It has produced some aery brilliant and extraordinary iudges known for their learning, integrity and deaotion to law. But there haue been some exceptions too.and in the recent years morc such exceptions are coming to light. There hns been, of late, public concern ozter jadges not obseraing working hours, being away from court work eaen without seeking lwue, unduly delaying iudgments and othenlise conducting themselaes in an un-iudge like manner. lt is these few persons whose conduct calls fur disciplinary system so as to preserae the fair name of the judiciary.
will
protect those unjustly accused. That apart, the aery existence of the system utill be deterrmt and will obointe the need to use it" Such
system
The consultation paper also observes that, "There are some complaints that some judges even Chief Justice are not seen to keep distance from centers of political power which would be conducive to the image of neutrality. It is well to remember that judiciary ceases to be an effective instrument if its image and reputation for integrity and independence suffer". The present procedure laid down in the Constitution for removal of Supreme Court or High Court Judge on the ground of proved misbehaviour or incapacity is cumbersome, unworkable, unrealistic and therefore impossible. The consultation paper also says that, "It has become imperative to check undesirable and unhealthy tendencies in the judiciary. The present procedure of removal is totally inadequate and for various reasons is impractical". The Commission to review the working of the Constitutioru the Dinesh Goswami Committee on judicial reforms and other bodies have shessed need for effective measures to deal with misbehaviour of judges and have also suggested various ways and means to check the growing evil. There is an urgent need for punitive corrective in the superior judiciary. Let us hope and I believe it will not be pious hope that the day is not far off when High Court or Supreme Court judges will not escape punishment for misbehaviour, corruption or misusing their office. They should be exposed to deterrent legal punishment. suggest the formation of Permanent statutory body with representative of the three wings Parliament, Judiciary and Executive to deal effectively with the erragrt judges.
ogDa)
INDEPENDENCE OF IUDICIARY, APPOINTMENT OF TUDGES AND RIGHTS OF CITIZENS Pinki Anand*
T\-fogding
fathers of our Constitution had accorded the highest place to justice.. The_Preamble speaks of, ,,we, the people of India,, resolvTng tJ se".rr" inter alia "Justice social, economic and- pohtical to all its citiz-ens,,. It is pertinent t.o juxtaposition of words and concepts in the preamble. the lote significantly, Justice is placed higher than the other prirrciples of Liberty and Equality. careful look also shows that social and eionomic justice are given precedence over political justice- The independence of judiciary is valued b"y the
people of our country which is appare.rt from the fact that people fuin to judiciary in the quest of justice. Justice is to protect not only one person against another but also between state and the citizens. state is in fact major litilant when it comes to litigation. The judiciary interprets the constitution. At the iame time, it acts as its pritector
and the guardian engine by keeping air other authorities in check so ihat they remain within their boundaries and do not hansgress over other Constitutional provisions. our Constifution envisages there are three essential pillars of democracy, executive, legislafure and judiciary. Each one of them is independent in its own sphere. The legislature has the final authority for making law' on numerous occasions, the interpretation by courts striking down provisions are superceded by the legislature by way of validating laws"which renders the decision of the courts otiose. The reaioning behind is power to legislate is plenary. The independence of judiciary is tt.e sine qun non for the very existence of d:Tq:r1.y.-Blt then the question arises, what is the meaning of independence of judiciary? Essentially, it means that every judge is totally"free to adjudicate Advocate, Supreme Court. 179
The Citizen nnd ludicial Reforms
the facts and the of perceptions his with in accordance him before matters pressure' indirectly ."-pt"n"ttt" of law without T{ ilfY:""u'inducement' by the-Intemational or directly from any angte. This definition was evolved
CommissionofJuristsinlgSlan CommissionofJuristsinlgSlandformrlrlateda dformrlrlatedasArticle2ofth sArticle2oftheSiracusaDraf eSiracusaDraf Principles.Thisconceptwas Principles.Thisconceptwasalsodiscu$se alsodiscu$sedinthelgthBiennia dinthelgthBiennialconferenceo lconferenceo where l\e 1t?fl 1982 in Delhi the Intemational Bar Association held at New of Judicial paper of Dr. Shimon was adopted as the Delhi Minimum Standards It was accepted thi! Su 1?d"* concePt of judicial irri"purdut -i"J"i""a"""" "".cannot be confined to individual judges and to their substantive independence ur,J p".ro."t independence but must also include the collective ut u., institution' Conceptually the independerce- of judiciary of tlie ludiciary "independence of judiciary as an. institutionalized organ and .ot"ptit"t of to independence of the individual judges. Thus, twin conditions are necessary is the word for courts' People in any harrJ ar, independent judiciary. tmpaiUafity -their answer to their quest of justice. Most country would recognize this as immune demociatic Govemments can endeavoutr that their judicial systems are from extemal influence which wiil include either governmental source or from
private interest aiz. economic, ethnic and religious Pressure on judges' Judicial 'irrdepe.rden." is the soul for the courts integrity and credibility within political system. One will have banana republic if courts are packed with the y", *un of the respective government$ rendering decisions in favour of their govemmental heads or on pre-conceived notions due to vested interests. \A/hat is ihu k"y for judicial independence? How can independence infuse confidence in the people.'The judiciary is really independent when people have faith that the judiciary is feariessly and fiercely independent. What is the component of this independence? Independence of judiciary may be divided under two broad heads Decisional lndependence and Shucfural Independence. A, Decisional Independence 1. Judicial Criticism 2. Public Confidence
3. Judicial Activism 4. Judicial Appointments 5. Govemmental Modification of fudicial Decisions B. Institutional IndePendence
1. Legislahrre Control Over the Judiciary's Financial Resources fudicial Salaries b. Appropriations a.
2. Govemment Control Over the Judiciary's Intemal Administration a. Legislative Oversight of Judicial Administration b. Judicial Discipline
Indepenfunce of ludiciary, Appointment of ludges and Rights of
|udicial Critcism and public Confidence
Citizens
1g1
recent expansion of the horizon of public Litigations (pIL) has Ied to an interesting debate on so.me aspect of independen." 'rterest 6r rrn
started as.a tool for improving the lot bf the under_privileged ;"ai"i"ry-l and a"fri""J section of society including bonded labourers, .r.,iu. Llr, conditior, of prisoners in jails etc. by uting the concept of rocus standi. so far so good. Today, however, PIL have extended to the areas of what were essentialy ,,policv matters" of the Government. This has become an issue of concem to *t" p"rri'" at large. Policy matters are essentia to be decided by the Govemment in exercise of its political wisdom. This mandate has been given by the citizens to the Govemment only. The rendering of judgments on such issues has evoked public criticism as it is felt that these decisions are based on political influences. In repeated judgments, the Apex Court has held that restraint on exercise of judicial power should come from within. To boost public confidence, this issue requires coruideration. The other aspect of public confidence lies in the freedom of speech and the freedom of criticism. Fiee and open criticism is one of the strongest parameters of independence of judges and the yudicial system. Appointment of fudges
Jo enable the supreme Court and the High courts to discharge their functions impartially, without fear or favour, the Constitution Jontains provisions to safeguard their independence. The judges of these courts are appointed by the Executive after consultation with those most comDetent to advise on the subject. once appointed, the judges hold office till they ieach the age of superannuation fixed by the Constitution and thus theii tenure is independent of the will of the executive. special procedure has been laid
down for removing the judges on the ground oi incapicity or misbehavior. The salary of judge cannot be reduced during his term of office and his conduct cannot be discussed in any house except when specific motion for his removal is being discussed. The constitutional provisions ionceming the judiciary go long way in establishing within the country govemment according to law.The 14th Report of the Law Commission of India regarding the appointment of judges is worth recalling. ,,The services rendered by judges demands the highest qualities of learning, training and character. 'Thise qualities are not to be measured in terms of pounds, ihillings and pence and according to the quality of work done. form of life and conduct far more severe and restricted than that of ordinary people is required from judges and, though unwrittery has been most strictly observed. They are at once privileged aid restricted. They have to present continuous aspect of dignity and conduct,,. Debate in the Constituent Assembly It is not surprising therefore, that the composition of the Supreme Court, the qualification of its judges, their salaries, allowances and pensions, and their complete independence from the executive received anxious consideration in the constituent Assembly. Prof. K.T. shah rnoved an amendment about the supreme Court and then about the High court judges which in substance provided that judge on ceasing to hold office should be disqualified to hold
The Citizen and lndicial Refotms
182
or of the States' This amendment Dr' Ambedkar in the lttdges was opposed by
any office under the Govertment of the
;i",t"g ;;6."-"
co.t,i
following terms: "The ludicinry decides
the goaernmmt has' if at all' .t'hz is engaged in deciding remotest interest, fact no intetest at all' Thejudiciary nnd the Soaernm-ent' the issue between citizens and uuy rnrely between citizms conduct of member of the Consequently, the chances of iiftueniing the cases
in which
judicinry by the goaemmmt are oery rcmote,
"'
the The judges are appointed by the President of India' While appointing
judges of the Chlef JusiiceJthe President has consultation with such of the of S;;;;" Court and the High Courts as- he 1ay deem necessary' Inthecase Chief President is.iequired to consult judge;, the other of ;;;;i-; India though he-may also consult such other iudges o-f the Supreme of JrlJtice "court power to and the High courts as he may deem necessary. The President's matter' as tn appoint the judgis is, however, purely formal for.he acts in oilie. matteis oi the advice of the Cabinet. The effective power in this behalf
restswiththeLawMinister.InGreatBritain, restswiththeLawMinister.InGreatBritain,thejudgesareap thejudgesareappointedbythe pointedbythe In Crown which means the executive of the day, without any kind of limitation.
the USA, on the other hand, the President appoints the Supreme Court iudges with the consent of the Senate. However, the framers of Indian cOnstitution saw difficulties in both these methods and so they adopted middle path' The English Method appears to give blank chuqn" io thJexecutive whlle the American system is cumbersome Ind involves the possibility of subjecting judicial apPointments to Political influence and preszure. The indian method neither give an absolute authority to
the executive nor does it import influence of Parliament in the matter of appointment of judges. The practice in India hitherto has been to appoint the senior-most judge of the Supreme Court as the Chief Justice *henever vacancy occurs in that office. The Liw Commission has however criticized this practice on the ground that Chief Justice should not orily be able and experienced judge but- alsocompeient administrator and, therefore, succession to the office should not be regulated by mere seniority. The govemment is however reluctant to give up-the rJe of seniority in appointing the Chlef Justice lest it should be accused of tampering with the independence of judiciary. But mechanical adherence to the rule ai times results in the Chief Justice holding office only for few months before he retires from the courts. This issue was considered in the fdmous supreme Court Adaocate-on-Record llnian of India, the 2rtd Judges-Transfer case. The judgment rendered by Justice verma, the then Chief Justice, upheld the primacy of chief Justice of India in the matter of appointment of judgei of the Supreme Court and High Courts and in the matter of transfer of High Courts Judges/Chief Justices' The provision in Article 124 (2) enabling consultation with any other judge is to provide for consultation in the matter of appointment and transfer of judles. fhe Constifutional Bench held that the process of appointment of iudges
Independence of ludiciary, Appointment of Judges and Rights of
Citizens
1g3
to the Supreme Court and High Courts is an ,,intetrated participatory
consultative process'/ for selecting the best and most suiti'ble p.rior, u.,r"it"ut'u for appointment. To ensure independence of judiciary, the Conititutional Bench laid down norms and guidelines to be folowed in lhe case of appointments/ transfers of some norms laid down by the Hon,ble Benci are initiation of the_proposal for appointment in the .use of Srrpre-e Court must be by the Chief Justice of India and in the case of High Couris by the Chief Justicu oi th"t High Court.
In the event of conflicting opinions by constitutional functionaries, the
opinion of judiciary ("symbolrzedby the view of the chief Justice of India") and formed in the manner indicated, has primacy. No appointment of any judge to the supreme Court or in High Court can be made, unless it is in conformiff;ith the opinion of Chief Justice of India. In exceptional cases along for strong cogent reasons, disclosed to the Chief
Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated ,easons are not accepted by the Chief justice of India and the other judges of supreme court who have been consulted in the matter on reiteration of recommendation by the Chief fustice of India, the appointment should be made as healthy convention. Appointment to the office of Chief justice of India should be of the seniormost judge of Supreme Cowt coruidered fit to hold the office. In making all appointments and transfers, the norms indicated must be followed. However, the same don't confer any justifiable right in any one. Only limited judicial review on the ground specified earlier is available in matters of appointments and hansfers. The initial appointment of judge can be made to that for which the proposal was initiated.
High Court other than
Termination of Judges In India, both the Supreme Court and High Court Judges are appointed by the President under Articles 724 and 217 and they enjoy fixed tenure and are removable under Articles 124 (4) and 217 on proved misbehaviour or incapacity after an impeachment motion passed by each house supported by stipulated majority. Their tenure and different process of removal are also in tune with their independent function.
The Primary basis of judicial independence in United States is the protection guaranteed to judges under Article III of the Constitution which creates federal judiciary. Article III provides that the federal judges will hold their offices during good behaviour and that they will receive for their services,
compensation, which shall not be diminished during continuance in office. Article II, of the Constitution provides that Civil Officer of the United States and Judges are considered to be among these can "be removed from office on impeachment for, and conviction of, treasory bribery or other high crimes and
84
The Citizen snd ludicial Refotms
process of adjudication by the misdemeanours." Impeachment is formal houses' Congress that requires agreement by both since-the creation of the The impeachment power has been used sparingly ol Personar iudiciarv. and used solely to remove iudges for various torms came close to ';i':;;,1.;. i"li""J *i.t impeachm'ent case 1805' out spoken Supreme C.ourt justice' on impeaching Samuel Chase, were polltrcally olaseo' the basis olf allegation that his sutsStantive decisions However, impeachment faileci. case has The experience with the removal Pr'ocess inJustice Ramaswami's has shown shown the ilear fallibility in the constitutional frame work' Time been cast and that the judicial system is not beyond rapproach'.Aspersions have .h".g", irurr" been levelled. The current ionstitutional frame work has proved to frame work be toially inadequate to deal with removal of judges. Some effective judges or it t,u, to u" provided. Either the constitution provides for removal of power does not. if it does, which undoubtedly the Constitution envisages, the must be capable of being exercised effectively' has suggested that Justice P.N. Bhagwati, former Chief Justice of India there should be J-udicial Commission for appointments, transfer and promotiors of the High court and supreme Court Judges. The Commissioncan irave the Chief Justice of India as its Chairman and one or two retired Chief of the High Court' Justice, sitting iudge of the Supreme Court, Chief fustice ih" Lur" Ministei, the Speaker of Parliament, the leader of the opposition and the Deputy Chairman of the Rajya Sabha' The Law Commission of India chaired by Justice D.A. Desai in its 121st Report has also suggested for the establishment of National Judicial Commission to serve as a consultative body in the matter of appointment of Law Commission has iudges to the supreme Court and High Courts. The expiessed the view that the power to appoint judge which today vests in the President of India would continue to vest in the President of India. The power has to be exercised under the new dispensation in consultation with the National Judicial Commission. The Law Commission suggested suitable amendments in the constifution for this purPose'
The recent report of National Connmission to Review the working of the constitution has recommended overhauling the judicial system. It has inter alin recommended (a) National Judicial Commission for appointment of Judges, @) mechanism of committee of Judges for examining cases of deviant behaviour against Judges and suggesting remedial action including removal'*
The current experience on the qtrrestion of apPointment and removal of judges has shown thit the system has not been able to function efficiently. There ire-mo'nting vacancies in appointment of judges in various States. The Law has written to the Chief Justices to forward names. As of now, it is on of failure of Chief Justices to forward names that the vacancies are
lndependence of ludicinry, Appointment of ludges and Rights of
Citizzns
1g5
rising' According to the Law Minister, as on lanuary 2001, about 1g0 posts were vacant and in more than two-thirds of those vacincies, the Ministry u" .oi received the first recommendation from the High couit collegiums. obviouslv. the-system requires drastic change. Whether tfe National Ju;ici;J a;;il;J; with the proposed structure or modified structure will serve the p"rp;l;ih"
subject of debate.
Financial Autonomy oI judiciary .Independence .. judiciary
of democracy so long as the remains distinct froS both Legislature and Execud,Je. nur"itry tn" judiciary in India does not have its own budget and source of inconie. It depends upon the union Government and state-Govemments as the case may -is
a sine qua non
be, for funds, salaries, perks and other developmental issues.
Though the judiciary generates revenue through Court Fees and other miscellaneous duties but it is grossly insufficient to meet the budget of the judiciary.
During the last 50 years after independence, scarce attention has been paid by the Government for improvement of judicial infrastrucfure. l,ess than 1% of the Gross Domestic Product (GDp) is appropriated to judiciary as compared to united states or united Kingdom, where has -o." ih"., ludiciary ,Deteiminants 3% share in the GDP of their economy. In project, of the Independence and Impartially of the Judiciary', following recommendation was made after years' research into the political, economic organizational and socio-culfural factors that determine the functioning of the fudiciary and an justice access to in India, the Philippines, sri Lanka and Burkina Faso. one of the recommendations to contribute toward the solution of problems of the legal
systems,
it is absolutely
for the Judiciary are increased dramatically. The target of Philippine supreme court, 2.so/o of the annual government budget, may serve generally recommendable standard. necessary that fund
Preferably these funds should come through fixed, structural and automatic appropriation, without any condition attached. There is dearth of courts and judges and of buildings bothfor courts and judges, officers and staff. In several cabes, even minimum facilities have not been given. The reason is that there is no planning proper budgeting of the courts requirements in consultation with the judiciary as is done in other countries. Nor is there long-range plan or at least Five Year Plan. The result is that Court Dockets are over burdened wlur cases on Civil and criminal side. Delay results in serious infraction of right to speedy trial and to violation of human rights in various cases. The judiciary has vital role to play in l_ndia specially where the gap between the haves and have-nots is wide. people are illiterale. The state modem welfarian State to safeg'ard the interest of poor, backward and downtrodden as well as the interest of the common masses where the iudiciarv needs to bg strengthened. More funds are required. planning commission ani Finance commission must allocate sufficient funds from national resources to meet the demands of the state fudiciary in each of the state. There must be adequate provision of salaries and other remuneration for the judges and officials of iudiciarv.
The Citizen and ludicial Reforms
of remuneration of iudicial Recently, the Supreme Court dealt with issue
the lower iudiciary' government officers who are appornted by ,in the G'D'P' out of which of 17o was lriptlcat5n finanJat i.^ria"ri"g that the
itseu, yet the Eovemment$/as not fees coult from lecovered is amount the of half t"..r to increase the salaries of iudges' The irony was that stenographer-was
Judge' The insensitivity of the io judiciuty *u, upputJnt' This was criticized by the-Supreme a;;;;il -o.rit otair",g ttrat paiciit impr&ement was n9t the priority list of the State country' Judicial administration suffers from Co,r"*-"ntr" all tver financial suPport Jeficiencies due to lack of proper plarrring and adequate State
*"itin* *o." pav than the Piesiiing
establishingmorecoultsandtoprovideadequateinfrastructure'ItcameaSa were not provided shock to *! th"t for decades .orlitt *hi"h diJperue iustice ;ith ;y funds under the Five-Year Plans nor has the Finance Commission needs of the courts. been maiing any separate provisions to serve the financial IthasbeenrecommendedtosetupaJudicialCouncilatthehighestlevel and Judicial Councils at each State at ihe level of the High Court' A- separate admlnistrative office should be set up to assist the National Judicial Council arrd sepa.ate administrative office be attached to Judicial Council in States' the These Lodies must be created under Statute which should be made by Parliament. The Judicial Council can thtrs be made incharge for preparing plans
both
short-term and long-term arrd for preparing armual budgets'^The
proposalmustbeinregardtotheneedofSubordinateJudiciaryintheState iuf,iLn pti^ury foundition for people who go to courts for seeking iusti.":.fr9 'be submitted to the state executive and should be finalized budget should betieen the
State
]udicial Council and
the State Legislature.
fJre State
executive and then presented to
growing concem that the Government of India should not throw the entire buiden o? establishing and maintaining the Subordinate state Governments itself. The Courts, the subordinate Judiciary on Subordinate Courts in State Governments also adjudicate upon tenffal Laws and thus there is a corresponding obligation upon the union Govemment to meet the expenditure for the Subordinate Courts. Planning Commission and Finance commission must allocate sulficient funds from national resources to meet the demands of the Judiciary in each of the States. Shetty Commission had recommended that 50% of the financial burden should be borne by the central Govemment. In the supreme court all the state Governments argued similarly which was rejected by the 3"1udge Bench. The lethargy of the state Goveminent was thus apparent. In the Chief Justice's Conference in September, 1992 and in November, i997 resolution was passed-that the Chief |ustice of High Court may be accorded power to spend appropriate_and re-appropriate mdrey within the budget allocation in respect of the High Court and the courts undei its control after ieeping govemment informed. In December, L999, itwas resolved in Chief Justice'r Cotri"t"tr." that the High Court should be given fulI autonomy for independence of the judiciary. Again considering the population of our country, $e judge strength is absolutiy inadequate r6sulting lr,ludicial delays. We have poor ratio of number There is also
Independence of ludiciary, Appointment of ludges and Rights of
gf ilages. to
Citizens
lumber of people. Even today there has been no improvement. hr All
hdia Judge's case presided over by Justice Kirpal, directions have been given to increase the strength of the judges so that the inadequacy in the nui.ber of courts and to increase the infrastructure facility to give iome semblance of balance to the people-judge ratio.
Another school of thought says it is pointless to appoint nurnber of judges. The issue of appointrnent is more competent judges should be appointed. ihis view was supported by the report on Committee co.tstifuted by th" Govemment of krdia. How the arrears can be brought down has to be viewed by each High Court independently as each High court in different states have different problems. One uniform method is, however, altemative dispute resolution. Settlements can take place through Lok Adalats. Adjoumments should not be granted in courts and trials should be conducted dav-to-dav. Judges disposing more matters can be brought under incentive scheme and the quality of work can be under scrutiny by superior court judges and by reputed senior counsels, Recently, the Supreme Court had come heavily upon the High Court when it found that judgment was not delivered for few years and it was delivered only when one of the judges had to retire. The Apex Court has now formulated
guidelines how judgment should ordinarily be delivered and how the Chief Justice should formulate procedure which is circulated in the cause list also. If this is the state of affairs in the High Court, one is terrified to imagine the plight of subordinate judiciary which is under direct conhol of each High Court. The National Commission to Review the Working of the Constitution has inter alia recommended setting up of judicial councils for financial planning and preparing budgets for the courts at the Apex and High Court levels. Budgets for subordinate courts may also emanate from state/judicial councils.* Democracy actually comprises of the rights of citizen in the State. Ideally, should be rights 'of the citizens', 'for the citizens' and 'by the citizens'. Through the course of 50 years of independence, however, it appears that the emphasis on the rights of citizens has been sidetracked. The decline and stagnation of the judicial system has led to dilution of the rights of the citizens. Mounting arrears of cases amounting to almost 2 l5 crores in the subordinate judiciary, time gap of about 10 years for the disposal of trials, few years for disposal of appeals, lack of public confidence in the judicial system have eroded confidence in the system. Confidence in the judicial system has to be restored, Judicial reform is the need of the hour. Some suggestions on citizen's rights for free, fair, speedy and impartial
trial are
Judges of high calibre, integrity, merit and wisdom to be appointed.
Appointment prqcess to be free from interference from political or other quarters, and transparent. For recommendations of the Constitution
see
Annexure to Chapter 1.
188
Thz Citizen and ludicial
Mortns
'Transparent system of accountability of judges" of 'Higher expenditure on iudicial structures.and on development alte"marive mechanism for resolution of disputes" 'Clearing backlog of cases'' 'Financial autonomy to the judiciary" 'Long-term planning for financial allocation"
Effective system of dealing with complaints agairut judges' Open and fair criticism of the iudlcial system'
Accessibility of justice to all'
C€&)
QUALITY OF IUDGES S.S,
Vishweshwaraiaht
In
country govemed by written Constifution, the constitutional mandates should prevail since the Constifution embodies the Supreme Law. Consequently, the Legislature, the Executive and the Judiciary are obliged to honour and foster the constifutional mandates enshrined in the Preamble which encapsulates the dreams, the ambitions and the. aspirations of the People of India. The Preambular Dictates, inter alin, are:
Justice, Social, Economic and Political;
Liberty of thought, Expressiory belief, faith and worship;
Equality of status and opportunity. The Doctrine of Separation of Powers, Rule of Law, Judicial Review, ln fer alia, have been declared to be the basic feafures of our Constitution which are beyond the pale of amendability. Here, the character, compositiory integrity and ftinctioning of the Judiciary assume significance.
Judiciary can function effectively when the presiding officers are competent and are persons of unimpeachable integrity and are assisted by able and honest officers of the courts, namely, the advocates. It is submitted that by and large the quality of legal education being imparted in the country is rather poor. Such "poor" officers of the courts cannot ensure that the system of administration of justice functions effectively. Thus, incompetence and delay are intertwined. Unless this is taken care of, the adage "Justice delayed is justice denied" will ruie the roost. The constitution of an All India Judicial Service and an independent effective training academy comprising of jurisprudent experts in the area of constitutional law and eminent lawyers for imparting pre-service and periodic in-service training might be quite useful. Further, in view of the poor quality of legal education available in the law colleges, the eligibility Chairman and Dean, Faculty Karnataka.
ol Law, 189
Karnataka University, Dharwad,
The Citizen and
190
ludicial Reforms
criterion, inter alia, relating to the number of years of practice at the Bar should be raised, by at least, couPle of years. In the lower courts, the rules of the courts dictate that judgment, orders should be pronounced within fourteen days after the arguments are concluded. In practice, even after arguments, the Presiding Officers do not pronounce the judgments. This has, to be investigated to minimise "law's delays" so that corrective measures can be adopted and implemented. Presently, an advocate who has practised only on the criminal side may become eligible to be appointed as District and Sessions Judge. It is, therefore, necessary for infusing confidence in the litigating public that the District Court be bifurcated as under. District Court (Civil lurisdiction) and District Court (Criminal jurisdiction). Judicious Employment of modem cemputer and information technology, requirement of the submission of written Memoranda/ Briefs Declination to grant adjournments unless substantial and genuine grounds are established would infuse greater conlidence in the Courts of Law.
with the litigating public, lawyers and others indicate that self-policing by judiciary, at various levels, is wholly inadequate. It should be Discussions
noted that the Doctrine of Separation of powers supports the Independence of Judiciary. Rule of Law reinforces this view. Judiciary should be independent so that it can be impartial and this impartiality is influenced by the integrity and incorruptibility of the judges. Both impartiality and integrity would be washed out when corruption contaminates the judiciary. Public perception of Judiciary would improve if judges of the High Courts
and the Supreme Court file their Income tax retums, declare their assets honestly every year and are engaged in the disposal of cases over longer period in
vear.
The courts have ruled, repeatedly, that Justice should not only be done but also should be manifestly and undoubtedly seen to be done. Televising iudicial proceeding at all levels, except in exceptional cases, may, probably, improve the performance of all the actors in the system of administration of justice.
c6&)
Part
AourNrsrRATroN or ]usrrcE
PROBITY
IN ADMINISTRATION OF TUSTICE P.P.fiao*
Administration of justice is one of the functions of the State. Legislation is made by the legislature. The executive implements decisions the legislature takes and the judiciary resolves disputes. Today, the biggest litigant in all courts is the State the Central Government, the State Governments, a number of Govemment corporafions, statutory authorities and local bodies. Criminal prosecutions are conducted by the State Prosecutors. Therefore, the State is very much present in every aspect of judicial administration. Previously, the Constifution was understood to mean that the power of appointment of judges was with the executive, but the power should be exercised in consultation with the iudiciarv. In course of time, the Supreme Court changed its view in the second judges" case and laid down that judges are best suited for selecting candidates for judgeship and the role of the executive is minimal. So, the judges made the selection. If the executive has something to say about the choices made by the judicial committee or the collegium as you call it, then there will be interaction behveen the judiciary and the executive and formal warrants of appointments are signed by the President of India. That is so far as High Court judges and Supreme Court judges are concemed. Lower dowry when you come to subordinate judiciary which comes in more contact with the common man and deals with more number of cases, the appointments are Iargely in the hands of the High Courts concerned. Even the disciplinary jurisdiction is with the High Court. In the case of subordinate judiciary, disciplinary action on the ground of misbehaviour or misconduct is possible. But the misconduct has to be proved in an inquiry. The problem with questions of probity is this. We know who is an upright judge, who is judge of doubtful character. But we cannot establish lack of integrity in an open inquiry. When case of a political leader was being argued, Chief Justice Bhagwati was presiding over the bench. He said that he had come across judge who received offers from both sides. And he wrote correct judgment in law and accepted the Senior Advocate, Supreme Court of Lrdia. 193
The Citizen and ludicial Reforms
194
was consistent with the judgment and returned the money received offer from the other party. It is very difficult to catch this man. He writes an absolutely correct judgment. He is very intelligent person. His appreciation of law is good and the reisoning is sound. The appellate court cannot interfere. With such an impeccable judgment, how do we say he is corrupt' But people knew that he This was ]nis modus opnandi, Today, this asPect of corruption has *ui "ot..rpf. certain magnitude where even the Chief Justice of India has started assumed feeling that he has to speak about it. In December, opening the shop of lawy, ers in Kerala, the Chief Justice had these words to say: "In my opinion, more than 80 per cent of the judges in this countfy, across the board are honest and incorruptible. It is that small percentage that brings the entire judiciary into disrepute. To make it known that the judiciary does not tolerate coffuption in its ranki, it is requisite that corrupt judges should be investigated and dismissed from service. This is possible in the case of the subordinate judiciary because the disciplinary control lies with the High Court. It is difficult where higher judiciary is concerned because the only recourse in law is impeachment which is cumbersome process and which, as recent instance showed, may not achieve the desired result for reasons that are political. The Supreme Court and the High Courts have attempted to evolve an informal procedure to meet the situation but it is yet to be tested." Although the Chief Justice of India is very categorical that it is possible to dismiss corrupt officials of the subordinate judiciary, one is not sure about it. It is very difficult to establish in the departmental proceedings that particular judge is corrupt. So, time has come when we have to think of provision for termination of service of any judge of doubtful integrity. Whether he is a superior judge or subordinate judicial officer, it does not matter. kr the case of suhordinate judicial officer, in the service rules there is provision for premature rdtirement, doubtful integrity being one of the grounds. But that is possible only after he completes the qualifying period of service which may be 25 years or 30 years or attains the age of 55 years or 50 years. That means, till that time, we have to suffer him. \A/hy should dre society suffer man of doubtful integrity? In the judiciary, you cannot afford to have persons of doubtful integrity because the basic requirement of judge is honesty. When Lord Chancellor was a$ked what are the qualities we should loo\ for in candidate for judgeship? He said, 'honesty. And if he knows some law, still better.' Therefore, honesty is the basic thing that is required and today ,this seems to be rare quality. One more thing we have to keep in mind judges do not drop down from Heaven. They come from the bar, that is the lawyers. Unless lawyers lend helping hand, it is not possible for judge to become corrupt. And we know it for fact that in our own fratemity, there are some members who unforhrnately indulge in this kind of a thing and some of them build up reputation that they can get favourable order from judge. There has to be an effective mechanism to check these things. It requires the cooperation of the bar as well to contain corruption. Fortunately, this disease has not spread in the judiciary to the same extent as you find in the other spheres of public activity.
ogER)
PENDENCY OF CASES P.K, Dave*
The subject is vast and has been extensively written upon by eminent scholars and practitioners. The Law Commission of India has contributed ideas on the subject in its Reports, of whicll one of the earliest, the XIVth in the 1950s, still holds the ground. There is an important contribution on "Judiciary and Judicial Reforms" by former Chief Justice J.S. Verma. Sri Verma lists number of concrete measures and effective remedies for serious consideration and implementation. fact that hits one between the eyes is the pendency of cases in the High
Courts and more in the lower courts, estimated at around three crore. 'guesstimate' places the time required for disposal of this massive pendency at 150 yearsl Some measures have been taken to reduce this pendency by arbitrary but fully justified steps, for example to discharge long pending cases not even brought to court; to increase the number of judges and magistrates, increase the pecuniary jurisdiction of the lower courts, and so on, but the impact remains little. We have of course various suggestions to deal with the problem, the first being to fill up the vacancies that are phenomenal. The action taken so far to improve the situation seems to be totally inadequate and quite inept. Then, there
are radical suggestions to meet this exceptional situation, like the one for multiplying the judiciary 150-fold if the rate of disposal of cases remains unchanged.
First, the suggestion for the appointment of 'special' or 'honorary' magistrates on short-term basis for trying petty crime cases that clog up the ustice system. The Venkatchelliah Commission has also favoured the appointment of experienced lawyers as honorary magistrates for the trial and disposal of less serious and petty cases.
IAS (Retd.), Former Lt. Governor of Delhi. 195
The Citiz.en and
196
ludicial Reforms
The involveme nt of Nyaya Panchayats in rural areas and of honorary or lay
magistrates in the urban areas, needs tO be consideled in all its aspects and intr-oduced as early as possible. In the U.K. such lay courts have been used very successfully for iong time and have been handling well over 957" of the total criminal cises, mainly the minor criminal offences. The regular stipendiary magistrates only deal with serious crimei These lay courts comPrise benches of thrJe honorary judges, given training in the basics of court work and also provided w-ith the services of trained court clerk. They may sit for two or three days in the week and if the Pressure of work requires, there could be two benches in police district. But the emphasis on the use of experienced lawyers common well educated Person, an activist of for this work seems unnecessary. NGO, or retired civil servant or arrny officer, professionals from trade and industry could all provide the personnel for the lay courts. fair number may also be found for lhe Nyaya Panchnynts. Considering the tremendous load of pending cases, apart from any other measures like increasing the number of judges, training them and putting them under strict administrative superintendence, perhaps large contribution can be expected from the benches of lay magistrates not only for reducing the large number of pending cases but also streamlining the justice system.
very important aspect of reform that will imPact on the functioning of the law courts, is the separation and professionalisation of the investigative machinery and placing it under an indqpendent Director of Prosecutions, not connected with either the police or the executive govemment. In the prison inchoate form it is more hindrance than help in providing speedy justice.
Finally, one wonders why public credibility eroded, corruption creeping in, and judges high and low dissatisfied with the systems and the services available, and further, with the directions of change widely understood,
neittrer the highest court, nor the jurists and the Bar, nor parliament nor even the political leadership has moved to deal with a malaise that has reached gargantuan propor tions.
(,5&)
TECHNOLOGY P.V.
AND
TUSTICE
Indiresan*
The Nature of fustice
The pithy phrase from the Bhagavad Grta Paritrnanaaya saadhunanm ainashayachn dushkrutaam is as good definition of justice as any. In the final analysis, all judiciai systems will inspire respect and confidence to the extent they satisfy these two basic criteria enunciated by the Gita.
Admittedly, the Indian judicial system falls short of this norm. The conviction rate in criminal cases is said to be less than seven per cent, iess than two per cent in some states. Cases take so long to conclude thit many witnesses die before the trial concludes. Even otherwise, either because of fear of reprisal from criminals, or due to monetary and other inducements, many witnesses retract their evidence. The laws against perjury are so lax that they can do so without incurring any penalty. Increasing number of persons with criminal records are entering the legislatures. Some ale even known to have become ministers in charge of judicial functions. As Gunnar Myrdal pointed out long ago, India has become soft state with little respect for, or fear of, law. In large parts of the country, the writ of the criminals prevails more than that of the judiciary. the same time, several hundred thousand undertrials are languishing in jails for years, often for periods longer than of imprisonment in case of conviction.
maximum period
The state of affairs in civil cases is no better. Proceedings.go on and on for years/ even decades without reaching a conclusion. Provided one can afford clever lawyers, there is little need to fear the consequences of the law. On the other hand, the poor, the non-influential have little expectation of securing the protection that the law is supposed to provide them. Exasperated by this state of affairs, the Supreme Court often intervenes directly relatively hivial cases. That is like general taking rifle in his own hand, and shooting at the enemy Former Director, Indian Institute of Technology (IIT), Chennai and currently Hon. Visiting Professor, Centre for Policy Research, New Delhi. 197
198
The Citizen and
ludicial Reforms
because his own soldiers are incompetent. That may be of some use in an individual incident or two but it cannot win the war. Likewise, the supreme
Court taking over the functions of magistrate's court may help in a- f9w individual c-ases but that cannot win the war against injustice. tn brief, the Indian legal system has become so ineffective that it can be said with some oPerates in reverse: pnritraanaaya iustification that the exhortation of the dtrshkrutanm, oinaashaay acha saadhunaam
It must be said to the credit of the judiciary that many of them have been expressing deep concern at the state of affairs. Several Chief Justices of India have introduced useful reforms that have mitigated the situation somewhat' Yet, as judges themselves have often complained, the situation is not happy, needs
ftirther improvement.
Weaknesses of the Indian Judicial System It is widely acknowledged that there are many weaknesses in the Indian judicial system. Some of them are:
a. Delays are endemic. b. The law has become very cor{rplex. Even experienced judges find it difficult to keep track of all of ib ramifications, or check their misuse by clever lawyers and cleverer crooks.
c.
to the large gap between what lawyers can earn and judges are paid, not enough talented persons are forthcoming to join the bench.
Dr.re
d. Technology itself creates newer and newer problems for instance, often it harms the environment. It introduces new complications that result in imponderable benefits and injuries to different parties.
The first three defects are linked to one another. Delays are caused by complexity, which in turn is made worse when judges are not the most competent or experienced. In returry the tendency to delay matters provokes the imposition of complex regulations. That makes it difficult for even competent judges to disperse justice effectively. Technology for Empowerment
From the dawn of civilisation, technology has been used as
tool to
enhance human capabilities. TechnoloS/ can empower people to operate faster, better, and even perform tasks that wortld be impossible without such aid. Now
that
it is conceded on all sides that the Indian legal system needs help to
improve, can technology come to its rescue in any way?
In way, technology can be compared to loudspeaker, which makes the feeble sounds of an individual to be heard by thousands, or to broadcast system, which can enable peopie located in far-hung areas to hear and see well beyond the normal human range. Such devices do not create the sounds the nor do they the events that are seen in million homes. They, merely, enhance commuirication. Likewise, technology cannot be used to create justice but it can be used to expand the scope of whatever justice is available. Hence, technology cannof replace good iudges. It can, however,
Technology and
lustice
1,gg
empower relatively weak judges to function as well as good ones do. It can also extend their sway.
At the same time,
advances in technology create new problems of their own. Every new techriology poses new challenges the legil fraternity. New technology creates problems like comparing oranges with apples. Matiers are
made worse because technology changes rapidly before one of them is assimilated, another replaces it. Thus, the problems created technology are not only novel, they are changing all the time. Delays, Laws' Complexity and |udicial Inexperience
Delays occur mainly because of procedural complications. According to the Indian Constitutiory courts can only according to procedures laid down by law, and not according to the conventions of the Rule of Law. That offers unlimited scope for the bureancracy to make rules complex. Such complexity offers full play for lawyers on both sides of the dispute to hold up proceedings interminably. Hence, where powerful people are involved, cases do not conclude even after decades. At times, we blame the Roman System of Law. However, in the United States whose letal system too is based on Roman Law, judicial proceedings are much faster. For instance, couple of months ago, Messrs Anderson, one of the most powerful and repu ted accounting firms in the world, was involved in professional malpractice. The case has already been concluded and sentences have been handed down. In contrast, the Harshad Mehta case dragged on for over decade and ended only because he died.
Judicial delays in India can be attributed to three main causes: (a) Complexity of the regulations, (b) misuse of judicial processes by lawyers, and (c) laxity of the judges. Technology can be devised to mihgate all three evils.
The Computer as Aid to Dispensation of Justice Modern day computers have extraordinary capacity to sift essential details out of vast data. Satelhte photography is classical illustration of this ability. Even if the desired object is camouflaged, or buried deep in the earth, there are techniques that enable computers to identify and isolate the needed information. Without such techniques, mineral prorpe.[i.,g will be impossible, nor will it be possible to predict weather as well as we do. Similar technology is used in space exploration, in controlling air traffic or pinpointing tumours in the brain. In all these cases, millions, even billions are to unearth nuggets of
information.
Some attempts have been made in this direction for legal cases too where, the sifting of data is, theoretically, less complex thary say DNA analysis. Yet, not enough has been done in developing the required search and analysis tools. In this respect, it is not enough to compile case histories. We need tools to classify them, compare them, identify the roots of the arguments of each case, and even make comparisons of the issue at hand with those settled in the past. When that is done, an inexperienced magistrate sitting in small town in Madhya Pradesh would be empowered to sift thousands of cases, and correlate them in matter of minutes as well as top legal experts in the Supreme Court. Thery whenever
2OO
The
Citizen and ludicial Reforms
legal counsel raises an issue, the magistrate need. not adjourn to ponder or reiearch the case. Not only authorised interpretations and past Precedences, even the logic of their applicability could be obtained in no time at all' As the sifted information will be available to al1 parties, counsels on both sides know what will pasd muster, and what will not. So, unnecessary arguments will be futile. system of this type will, therefore, curb tendentious ar[uments the same way information produced by the computerised railway reJervation system eliminates futile attempts of travel on overbooked trains. In these matters, non-availability of Technology is not the Problem; resistance to technology is the problem. If this facility is on the Intemet, no matter where the case is being heard, identical interpretations of the law will result. Then, the variability between one iudge and u.,othet will be reduced sub$tantially, and hence, fewer disputed judgements will be taken to higher courts. In briet automatic legal interpretation systems can be devised that will emPower an inexperienced and not so clever magistrate to function as well as experienced and brilliant judges. The Power and the Limitations of Computers
It is necessary to point out that
the computer does not produce the judgment it only offers valid choices before the magistrate. Ultimately, it is the decide. Only, the atea of uncertainty is so much reduced magistrate who that decision-making becomes
simple matter.
cormection, it is worth recalling the recent air tragedy over Switzerland when Russian passenger aircraft and an American cargo craft collided. The computer in the Russian aircraft acted correctly. It so happened that several ground controllers were on leave. The only one that remained on duty was overworked, and gave wrong advice. The piiot believed the human operator and igrrored the computer's instruction with disastrous results causing the death of nearly hundred people. Xn Air Forces round the world, it is cardinal rule that whenever there is coniflict between what the computer states and the pilot thinks, the pilot should treat the data as Presented by the computer as correct. The pilot still has the responeibility to decide what to do with the data, but that information must be accepted as definitive and accurate. Human beings are much more prone to error in measurement and analysis than computers are, but it is only the human mind that can decide best, what next' If that is the case in matters of life and death, where instantaneous decisions have to be taken, there is no reason why similar computer techniques cafflot be used to aid judges.
In this
Veracity of Evidence
It is generally accepted that witurbsses may lie but
events do not. As described above, computers are useful in sifting the data that events Senerate. Computers can help even more in deciding whether wibresses are truthful or not. Lie detectors have been in use for number of years. They have been used for investigative pulposes but they are not normally considered good enough to be used as evidence. New brain scan techniques are under development that
Technology
andlustice
20j.
will overcome the hesitation judges now have about using lie detectors. Lie
detectors may not find the truth but only detect ries. That is b:y no that is wirming half the battle.
m""* t.irrll
Consider scenario where suspect witnesses are made to give their evidence when wired to lie detector. The fact of being connecte"cl to ii" detector will itself inhibit them from lying. Even otherwiie, the machine can help to assess the reliability of the witness. That need not replace the presiding officer's judgment but will be helpful tool on assessing -the evidence. ThiI matter of veracity of witnesses is matter of much importance in India where witnesses have little hesitation to lie under oath. It would be good idea to ask witnesses to take lie detector tests whenever they contradict tieir own earlier evidence.
Finger prints, blood tests and now DNA tests have all become routine in criminal investigations and their results are now accepted without reservation by courts all over the world. It is only matter of time when lie detectors too will become equally ubiquitous. opposition to their use will be not because thev are not reliable but because they will be too reliable for the comfort of false witnesses. Laxity in Courts Though there is reticerrce about commenting on court proceedings, it must be admitted that not all presiding officers are as eificient or as systematic as thev ought to be. As normal rule, court proceedings are open to the public. yei, either due to inadvertence or due to negligencb, ma.,y lapses do-occur. Not much notice is taken of them because the few witnesses that are present are afraid of the judges. only widespread dissemination of court p.o.""dirrgs .urt curb Iapses on the part of the judges. For instance, suppose court procee-dings are-all videoed and kept as permanent record. with modern technology thlt will costlittle and occupy very little space whole year's proceedings"could be stored in a briefcase. such visual records will be much more grapiic than stenographer's reports. They will catch the atmosphere of the courtroom in way no written record can. Sheer conservatism only has prevented keeping visual records of court proceedings. when stenographers were first introduied] that too must have been a path-breaking transiormation. As next step, we should now start maintainingrvisual records of court proceedings. video records will offer more comprehensive recal of the proceedings than written records can. They can be analysed automatically- to idendlr delaying tactics. Reports can even be generated objectively to fix the responsibility for delays. As no judge would like to be listed as ineffective in controlling delays, video reports and their computer analyses will enforce d.iscipline on judges directly, and on the lawyers indirectly. video recording is simple and very cheap technology these days. It will coit little but its beriefits will be substantial.
The Citizen and ludicial Reforms
202
Problems in Law Created by Technology of Technology does much good; it also hatms' Right from the beginning
civiliJion, p""Jpl" "n" beeir concemdd about the harm that advances in f.r,o*t"ag"U.i"g. Sometimes, as with Luddite riots, the opposition to technology opposition to takes iiolent- turn' However, never before in history was technology was as virulent as it is today'
day environmental activists had been active in earlier years' no.electricity rhere would have been no steam engines, no cars, almost definitely u, they are all polluting and iangerous too. Activists are usually right in "1,f.,", th" ala.^s iney taiie. Howlever, they fail take .into account the contra while urg.rmu.rts, the benefits the same tecirrrology would produce' Hence' giii.rg d,ru'*"ight to the objections raised by the activists, the courts will have to assess the Balance of Advantage.
if present
Newtechnologiesarealwaysdifficultt Newtechnologiesarealwaysdifficulttocomprehend.Theac ocomprehend.Theactivistsare tivistsare
sincere and self-sacr-ificing. Their irguments are based on moral considerations. on the other side, those who advocate technology are often rich businesses.
are based on mundane considerations of profit to themselves and to tlie public. That makes it difficult to locate proper balance between the
ihai, urg.,-"nts two.
The Case of the Narmada Dam: Consider the case of the Narmada Dam' Its
opponents tatk of the inhumanity of displacing poor peoPie from their ancestral noi-nes. They highlight the permaneni damage done to ecology through the destruction of ]orests. They openly accuse irrigation engineers uttl thu government of corruption, and inhumatrity. They speak of promises made.and troke.t. They emphaiise that the Dam will make poor Adivasis Poore-r, and the rich landlords of Gujarat richer. They assert that much harm will be done if the river waters are not allowed io flow to the sea. There is an element of truth in every one of these alguments. However, that is only partial truth. For instance, over 90 per cent of the river Cauvery is used up foi irrigation. Many of these irrigation systems are over thousand years old' Tirere is n-o evidence ihat the diversion of so much water has done any harm. The Cauvery delta remains one of the most fruitful, Prospelous, and salubrious oarts of India. In contrast, the Sunderbans of the Gangetic delta,90 per cent of ihose waters are allowed to waste into the sea, is infested with disease and poverfy.
The critics are unlikely to be rign,t when they assert that Adivasis will become ooorer when the dam is built. Adivasis are already at the bottom of the economic pyramid. Their literacy rates are abysmal. Their life expectancy is low. Leaving them as they are will perpetuate their poverty. Taking them away from the forJst will provide them with opportunities for education, employment, and heaith services that they will never get if they remain in the forest. At the least, once they move out of the forest, they are likely to live longer' Likewise, the opposition to shifting their homes will not stand historical scrutiny. Right from-prehistoric times, mankind has been on the prowl' As rule, those who migrate prosper better than the natives'
Technology and
Justice
2Ol
Mainly, the courts have to decide whether the compensation is fair and just. It is more than likely that the compensation is not calculated in .just manner. Normally, the amount of compensation is calculated by estimating the loss suffered. That is not entirely fair. suppose the loss suffered is X, and the gain that accrues to the beneficiaries is Y. Thery the compensation should be not alone but X + Y. That the displaced personi should not only be compensated for the loss incurred but should have an equal share also in the
benefits that accrue.
Often, displaced persons are provided with modem housing with running water, electricity, and toilets. That is good but may not be adequate unless they are also given the skills required to get new kinds ofjobs. In addition, it is best to make the cash compensation an annuity that is indexed to inflation. Farmers in Tamil Nadu, Maharashtra, Punjab and Uttar Pradesh have welcomed proposals of indexed aruruities enthusiastically.
Admission to Piaate Professional Colleges: Indian courts have faced problem of different type in deciding admission to privately run colleges. The Supreme laid down elaborate regulations about admission procedures and about fees to be charged. It appears the court has overstepped in this case. Running college, even if that is for profit, is by no means an anti-social activity. If rich person were to spend money on building house in marble, or waste it in the nightclubs of Las Vegas, the courts will not interfere. If the same person were to spend that money to educate children in an engineering or medical college, the same court will impose any number of restrictions. rich person has discharged his or, her social duty once the taxes are paid. Hence, it -and does not appear all that just for the courts to intervene, impose in effect an extra tax, merely because the sufplus income is spent on educating one,s children. The intentions of the Supreme Court are laudable. Yet, it would have done well to check how private universities function in the United States. Contrary to popular perception, the average fee in Harvard or Columbia is no more than 20 per cent higher than in state universities. The top fee in these institutions is 3-4
times greater, but the scholarships are so many that the average fee is much lower. The fee is also fixed according to (a) merit and @) capacity to pay.
In the US, private endowments are large typically 10 billion (Rs. 50,000 crore) for an enrolment of 15-20,000 students. They have collected such large endowments because American business appreciates the benefits of quality education. In India, such awareness is low among business people, and apparently non-existent among goverrunent leaders and the judiciary. Business is major beneficiary of quality education. Once the Supreme Court decided to intervene, would have done well to have made employers party to the dispute, and made them also contribute. Because higher education confers benefits on society as much as it does on the individual student, the coqrt might have directed that, say, half the cost should have come from employers and business, quarter each from the state and the students. Further, itudent fees could have been related to ability to pay.
2M
The Citizen and
ludicial Reforms
Thelastpartisabittrickybecause,inlndia,mostrichpeoplehidetheir
by incomes. One possible solution is to fix c6llege fees according to the fees paid
the student ai the school level: Then those who go to expensive schools pay more and those who go to cheap schools will pay less' As many people in the government are privifiged to educate their children in Central Schools, it may be necessary to add surcharge based on gloss income' The Ptoblem of Amniocentesis: Virtual banning of amniocentesis is another instance of judicial intervention in technology related issue. The court was concemed about the use of this tedurique to identify the gender of foetus. It was exercised over the fact that many pArents misuse that information to abort girl babies. For centuries, similar enquiries have been made from astrologers. Err". r,o*, astrologers do indulge in sudh predictions' Yet, no court would ban astrologers from making their predictions. The case of doctors is being treated differeitly not because they predict the sex of the baby but because they do so accurately. Evidently, there is confusion here between the legality of the, act andthe fear or tn" co*"-qnences. The court's decision could not have been flawed if it had banned abortion of girl babies. Placing check on technology that has several benefits does not appear wise. cases, the throwing away the baby along with the bath water.
In adiudicating technology-related
risk is always there of
high technology Corru.ption in Technology Acquisition: Purchases equipment has become major source of bribery and corruption in recent years' only the courts can deliver the country fron this evil. The following three cases whiih are in the personal knowledge of the author indicate the nature of the problem:
1.
railway electronic equipment, but when IIT Delhi succeeded in developing local version, the price was brought down to as little as I{s. 1.7 million. Even after such drastic price reduction, the American import could not compete with the indigenous system either in price or in quality. At this stage, for inexplicable reasrons, the Railway Board decided that it did not need such systems at all, and old outdated systems should Some years ago, an American flrm quoted Rs. 7.5 million for
continue to be used.
Another instance concerns C-DoT switches. new entrant who had never been in the telecom business offered to manufacture C-DoT price well below even the bill of materials. The switches for goverrunent demanded that alil other manufacturers should cut their price too. As they could not do so, the manufacture of C-DoT switches iame to halt. Once that happened, the new entrant paid penalty and withdrew from the scene. At that stage, on the ground C-DoT systems would not be available in time, the govemment bought from foreign suppliers at double the original prices. 3. In technology sales, there is what is known as the Gulf Price-the price, oil-rich but technologically poor Gulf countries can be charged without demur. That can be several times more than the true price. In one
Technology and lustice
instance, it was found accidentally that the Indian Navy was paying ten times the true price for piece of specialised equipment. Obviously,
all this requires the connivance of local officials and politicians. As
rule, thanks to official secrecy, most such cases never come to light. Corruption in technology purchases has become major menace in all departments of govemment. The problem is compounded by the fact that in these cases monopoly operates there is only one buyer. Therefore, there is no way of comparing prices. The only feasible solution appears to be for the courts to insist that purchases must be decentralised. Thery different divisions will compete to get the lowest price. Comparative data will become available, and the courts will be able to detect purchases made at exorbitant prices. Justice and Technology Justice and technology share some feafures in common. Both inspire awe and hope. At the same time, both arouse fear and despair. With every advance
in technology, the complexities faced by the judges
increase. However, if technology is the problem, it also offers solutions. Such solutions are available but not yet used in toning up the normal functioning of the courts. In particular, judicial delays, and judicial indiscipline can be checked without much difficulty and at little cost by simple techniques.
kr those cases where technology
change is at the root of the problem, judges are at disadvantage because they will have no precedence to fall back on. They will also be under enormous pressure from social activists who do not respect the law but expect the law to be bent for them. There will be uncertainties too. It is to the credit of our judiciary that they have tackled these cases with finesse. At the same time, it must be said that what they have so far tackled is
only the tip of the iceberg. When genetic engineering and nanotechnology explodes in full force, they will face unprecedented moral issues.
ogB)
SUBORDINATE COURTS_THEIR INDEPENDENCE, APPOINTMENTS AND CONDITIONS OF SERVICE K.N.
Bhaf
scope: This presentation is dehberately restricted to the restructuring of District iourts and courts below the gubordinate courts, to achieve greater efficacy in the working of the judiciary. special emphasis is laid on All India 14th Report of the Law Judicial service (Article 312 of the Constitution and the -Commission). Establishment of new ingtitutions like Nyaya Panchayats may better serve the goal of easy access to justilce. form, the Preliminary Observation: Suboldinate courts in in every modem state, but unfortunately they have foundation of the Judiciary-Independent India. Even the aspects of salary^and been totally neglected in allowances of inembers of lower juiliciary are left entirely to the State Governments. The late effort of the supreme court in All India fudges Association Casest to compel attention has resulted in pioneering- report of First Natiohal Judicial Pay Commission headed by Justice K. Jagannatha shetty, former Judge, supreme Court of India. trts recommendations, restricted only to pay and allowances, could not be implernented during the last two years or so, ,oieiy ot-r account of reluctance of several State Governments to co-operate and the inability of the court to compel obedience.
Whiledealingwithcourtsoneshouldbearinmindthatpolicingbythe Whiledealingwithcourtsoneshouldbearin mindthatpolicingbythe higher courts in tie hierarchy has only doubtful and marginal effect on imiproving efficiency. As iule, an appellate court or court having super.risoiy jurisdiciion in judicial matters should have no administrative
.o.rtrol ou"r the courts lower in ihe hierarchy. Independence of the judiciary must be ensured even at the lowest level and the Judges at all leve]s should not Senior Advocate. (1992)
SCC 119 L993 (4) SCC 288. 206
Subordinate Courts-Their Independence, Appointment and Conditions of Seroice
only be independent of the executive but of the higher courts also. The law declared by the Supreme Court is that "A Judicial Service is not service in the sense of 'employment'. The Judges are not employees. As members of the judiciary, they exercise sovereign judicial power of the State. They are holders of public office in the same way as the members of the Council of Ministers and members of the Legislature"'z. Unfortunately, in reality the judges of subordinate courts are only employees. The Supreme Court in its anxiety to protect the judiciary as whole from the executive has, over the last decade or so, unwittingly eroded in to the constitutionally envisaged independent status of the High Courts. As is well known, through the Second Judges case3 the powers of appointment of fudges of the High Courts and of transfer of Judges from one High Court to another, Courts, have been including appoinhnent of Chief fustices of the appropriated to itself by the Supreme Court. The Supreme Court today is not just the final court of appeal; it is also the appointing authority for judges and chief iustices of High Courts and of course of ihe Supreme Court itself. The Supreme Court's decision in the case of an alleged assault by the Gujarat police on the District Judge of Nadiada was perhaps the unkindest cut on the constitutional status of the High Courts again inflicted unwittingly and with best of intentions5. Similarly, the Supreme Court exercising though reluctantly and rather helplessly - its original jurisdiction to punish lawyer V.C Mishra6 for allegedly committing contempt of the Allahabad High Court is another instance of the Supreme Court acting like big brother which constitutionally it is not. This tendency has percolated to an alarming proportion and should be remedied before iudiciary of district becomes iofi of zamindari of a sitting High Court Judge. The appointment process of the Judges of the Subordinate Judiciary namely those lower than District Judges is in fact given to the Public Service Commission of the State and Judge of the High Court is generally invited to be member of the Selection Committee. Where participation by the High Court is totally ruled out in some states, the Supreme Court has expressed the view that such practice is not desirable (Ashok Kumar's case)7 The appointment of District Judges however, is left virhrally to the High Court.
2. (19e3) 4 SCC 288 (295-96). 3. (1993\4SCC44r. 4. Delhi ludicial Sentices Association v. State of Gujarat, (1'99I) SCC 406. 5. tlvo judge Bench interpreted, among others, Articles 129 and 215 of
the Constitution for the first time Article 145(3) mandates five judge Bench as the minimum for hearing of such cases and held that under that article the Supreme Court has jurisdiction to initiate proceedings for contemPt of subordinate courts also.
6.
Vinay Chandra Mishra (in re:), (1995) SCC 584. It is believed that the Supreme Court resorted to this course because, on account of an atmosphere of terror prevailing in the High Court, no judge was prepared to hear this case. Hence the interference.
7. (1985\45CC417.
2oB
The Citizen and Judicint Reforms
It may not amonnt to contemPt of court if one observes that the High Court Judges are not above considerations of caste, religion, etc. It is felt that often, in the matter of selection of District Judges, subjectivity plays more prominent part. This continues even in the matter of fupther Promotion or even postings and transfers of judicial officers. In the matter iudicial proceedings like granting of bail or iniunctior! subordinate judge is often inhibited by the possible wrath of the High Court. As consequence of the law declared recently by the Supreme Court in layalnlitha's case8 sentences passed by rnagistrate or special judge in offences specified in section 8 of the Representation of People Act, 1951 take effect at once. And the prescribed disqualification starts operating not withstanding the suspension of execution of the sentence by the appellate court. It is to be noted that section of Representation of People Act, 1951 specifies large number of offences not just offences under the Prevention of Corruption Act. Most of the specified offences are with in the jurisdiction of magistrates and carry sentences of tr,vo years or less. The fact of conviction is enough to attract the statutory disqualification. It will be too much of burden on State Govemment controlled judge or magistrate to be asked to decide cases of such grave political consequences. The judiciary needlessly gets burdened by bad reputation. Suggestions regarding structuring of Suhordinate fudiciary:
(1)
All India Judicial Service as envisaged in Article 312' of the
Constitution and on the lines recommended by the Law Commission in 14th report should be established. Recruitment the All India Judicial Service from the age group of 20-25 (fresh law graduates) India basis with need based allocation to different should be on states as in the case of IAS and IFS. This wiII help the stntes with lesser educational ficilities also to get the seruices of good judges.
(2) The AIJS judges should be rqquired to acquire sufficient working knowledge of the language of the state to which they are allotted.
(3) The AIJS will start working as Magistrates/Munsiffs level.
at the lowest
(4) Members of the AIfS should be entrusted with trial of cases both civil and criminal arising out of Cenlral Acts'only. Adjudication of disputes arising from local laws should be by state judiciary.
(5) Article 236(a) (b) may be amended. (6) Separate wings,/cadres in judicilary to deal with state laws and Central laws will ensure speedier disposal of cases of greater importance. (7) In the context increasing number cases under Prevention of 8. B.R. Kapur v. State of Tamil Nadu, (2001)7
KC
231.
All India Judicial Service, as concept was made part of the Constitution by the infamous 42nd Amendment during the phoney emergency of 7975-77.
Subordinate Courts-Their lndependence, Appointment and Conditions of
Service
209
Corruption Act at all levels and laws affecting eligibility to contest elections and in the context of impact of lower judiciary's judgements on eligibility to hold public offices, it is desirable rhat only AIJS judges hear such cases.
(8) Young law graduates will be recruited through open competitive examinations and interviews much before they become successful (perverted or c1'nical) lawyers. The recruitment process should be
entrusted to the National Judicial Commission. (9) There should be an embargo on the members of the AIJS taking up practice after resigtring,/retiring,/discharge from service, in the same State in which they were members of the judiciary.
(10) There should be no reservation in the Judicial Service on the basis of caste, creed, religion or place of birth particularly after the initial entry.lo
(11) The retirement age of the AIJS judges should be the same as that of the Judges of the HighCourt. (12) No State Government or the High Court should have the power to initiate disciplinary proceedings against members of the AIJS and the power to effect termination of service should be reserved to the President of India on the recommendation of the National Judicial Commission. The State Judicial Commission (to be established) may however, be given the power to suspend member from service pending recommended ilisciplinary proceedings. (13) Specialised tribunals are to be manned by members of the AIJS. (14) Seniority should have very limited role to play in the career prospects of the member of AIJS after he attains specified rank - say Senior Dist. ludge. This will be in keeping the spirit of the Supreme Court's declaration that member of iudiciarv is holder of an office and not an employee.
(15) There should be scope for members of the State Judicial service to enter the All India Judicial Service in deserving cases. (16) Corresponding amendments to the Constitution including to the provision in Chapter VI of Part VI of the Constitution may have to be carried out. However, the powers conferred under Articles 226 and 227 will continue to be exercised only by the High Court. Corresponding provisions may be made for establishing State fudicial Service under the control of the State Judicial Commission to be established through amendment to the Constitution. It is necessary to ensure that the appellate power does not get mixed *ith administrative power. Independence of the judges has to be assured and ensured at every level.
10. Several decisions of the Supreme court during the last decade, notably Ajit Singh Il v. State of Punjab, (1999) KC 209, following lndra Swaney, (1992) Supp SCC 217 have declared that reservation is
transitory measure and there is neither an obligation to make reservation nor is there right for it.
The Citizen and ludicial Reforms
210
U.S. Experience
The experience of United States of America may not exactly be capable of being copied by India. In that country variety of Tribunals at the lower level provide a fascinating and at times what may look like bizarre picture. Prof.
Henry J. Abraham in his classic work "|udicial Process"tt gives very informative picture of lower tribunals in different countries like the USA, England and France. Regarding the U.S.A, he notes (Seventh Edition page 152):
"THE STATE COURTS
It is in the courts of the fifty
states that the great majority of the legal business of the American public begins and ends. The character, jurisdiction, courts vary considerably from state to state in quaiity and complexity of accordance with the myriad considerations of public policy, need, size and constitutional practice that characterize the heterogeneous component parts of
judicial branch for iis invariably tripartite gov€rnment or, either in whole or in part (as is true for the national level under Article III of the Constitution of the United States), authorizes the legislature to provide for judicial system. Although the terminology and structure among the State Courts differ significantly,
the nation. Every state constitution establishes
discemible strucfural pattem does exist. The base consists of system of justices of the peace and trial cburts with the pyrarrrid gradually winding its way upward through more or less elaborate appellate system, cuhninating in Supreme Court (not invariably termed "Supreme Qourt " however)." The office of fustice of Peace or JP fof short (often an elected office for term of two years) needs no special qualification. It is stated that in some of the states not single JP had law degree and about 75% had never gone to college and about 40% had never even attended high school. Even in states like Virginia mere JPs were lawyers. 71-% had never gone to college and only 5 of the remaining 29"/o were graduates and 18% were not even high school graduates. The learned author Prof. Abraham states that all this represents an unforhrnate state of affairs for "given suitable attributes of integrity and proper qualificatiory the Justice of Peace might well still provide able and inexpensive adjudication and settlement of mlnor legal problems in judicial process". The job of JP is regarded "more social than legal" He quotes Chief Magistrate of Philadelphia Joseph J. Hersch as saying: "A law degree doesn't make magistrate more qualified. Living with p6ople is more essential than going to law library to find out what it's all4bout.... If you take Purdon's law books away from them [the lawyers], they'r€ out of business." jPs jurisdietion generally extends to disputes involving less than $5000 and the pe,re'entage of cases ending in cOnviction or decrees is often as high as 99 with the result the expression JP has been irreverently referred to as Justice for Plniniif. Reference to this institution which is still flourishing in the United States of America in the 21st century is made as a prelude to the suggestion for
11-Tl* f.,dt"l.l
Process (seventh edition) by Henry J. Abraham. Oxford University Press 1998. (published first in i962).
Subordinate Courts-Their lndependence, Appointment and Conditions of Seruice
211
the introduction of Nyaya Panchaynts.It is often felt that resolution of the dispute in time with finality is more important than the so-called legally correct resolution. This is because experience tells us that there is nothing like legally correct resolution. We have seen time and again that decisions of munsif was upheld as correct by the Privy Council or the Supreme Court in preference to that of District Judge or of High Court. Decisions of the Supreme Court have been reviewed and reversed. Putting finality to petty disputes prevents their snow balling into major causes of disturbance of social order. The judicial system at best is compromrse. local law must be left to the locai courts manned by local judges. The emphasis should be for speedy resolution of disputes and avoidance of stagnation of grievances. With the High Court at the apex of the State Judiciary to correct serious violations of statutes or procedures of general importance alone, finality to litigation should be assured at the earliest stage; and with an AIJS judge in picture, acceptability of finality may be better assured. States in their wisdom may encourage compulsory arbitration or alternative dispute resolution in classes of cases. The emphasis should be to ensure Matters arising out of
curtailment of longevity of disputes, which would mean longer life for peace and harmony in society.
Suggested Amendments to Constitutional Proyisions Dealing with Appointment/Transfer of Judges and Constitution of National Judicial Commission
The following suggestions are made without having had the advantage of perusing the report of the Constitution Review Committee released on 31-3-02. (1) Article 124(2) shall be substituted by the following
article:-
(a) "The Chief Justice and every Judge of the Suprerne Court shall be appointed by ihe President by warrant under his hand and seal on the recommendation of the National Judicinl Commission and shall hold office until he attain the age of sixty-five years". Explanation.---The President may for the reasons set out in writin& require the National Commission to reconsider any recommendation once only.
(2) Article 124(3Xb) shall be substituted by the following:-
"has been for at least 20 years an advocate". Explanation
shall be omitted.
(3) The words and phrases in italics shall be added to the existing Article 724(7) and the amended Article shall read:
"No person who held ffice as Judge of the Suprmrc Court shall engage himself in the practice of law in any mnnner for all times; nor shall he be candidate at any election to either House of the State Legislature or of Pnrliament for period of three yenrs after he ceases to hold office, or to hold
212
The Citizen and ludicial Reforms
any office or post during thnt period, either under the Gooernment of India or under the Goaernment of any state or in any organisatian or undeftaking under their control, except to the exttnt peffiiitted under the Constitution or by stntutes or by the National ludicial Commission, specifcally or generally ftom time to time".
(4) In Article 127 the words and phrases "If at nny time there should not be quontm of the Judges of the Supreme Court apailable to hold or continue any session of the Court" shall be deieted and the amended Articie shall read as follows:-
"At any time the Chief Justice of India may, with the previous consent of the President and after consultatflon with the Chief fustice of the High Court concemed, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of Chief Justice or Judge of High Court. The nd hoc jndges shail be entitled to receive for the period of service such emoluments and allowances as are applicable to the judges of the Supreme Court". (4) ,A.rticle 217(1) shall be substituted by the following article:"The Chief Justicelnd every Judge of High Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judiciai Commission and shall hold office, the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-five years. (The powers of the President relating to the appointments to the Supreme Court shatl tatis mutawdis apply to this Article also.)
Explanation (aa) shall be omitted. Ali references to the expression Adaocate of n High Court" shall be omittted because after the advent of the Advocates Act the quoted phrase has no meaning. (7) Article 217(2)(b): The word "ten years" be substituted by the words "hventy years" and the words "of High Court" may be deleted. The amended Article will read: Artlcle
277 (2)@): has
for at least fwenty years been an advocate".
(8) Article 220: shall be substituted by the following Article. Subject to the guidelines issued by the Commission:
"All restrictions imposed upon former judge of the Supreme Court
under Article 124(8) shall apply to
former judge of
High Court".
Atticle 222(7) shall be substituted by the following article: "The President ma, on the recommendation of the National Judicial Commission transfer Chief Justice or Judge from one High Court to any other High Court or may appoint him as judge of the Supreme Court of India. Disobedience oI the order of the President shall be construed as resigr.ation from the post".
Subordinate Courts-:Their lndependence, Appointment and Conditions of Seraice
273
CHAPTERIVA
NATIONAL IUDICIAL COMMISSION 147 A.-(7) The power and responsibility of recommending appointment of the Chief fustices and Judges of the Supreme Court and High Courts and of transfer of Chief Justices or Judges of High Court from one High to another under this Constitutiory the power of dealing with complaints against judges in the manner provided hereinafter shall vest in Commission referred to in this Constitution as the National Judicial Commission. (2) The National Judicial Commission shall consisfof the
following:-
(a) The Chief Justice of brdia and two senior-most Judges of the Supreme Cour! (b) The Vice-President of India or the Deputy Chairperson of the Rajya Sabha, if specifically authorised in writing by the Vice-President. (c) The Cabinet Minister in charge of the portfolio of Justice or any minister nominated by the Prime Minister for this purpose.
(d) Leader of the Opposition in the Lok
Sabha; or in the absence of Lok Sabha the Leader of Opposition in the Rajya Sabha.
(e) Attorney General of India.
(f) Two distinguished persons co-opted by the above members at their
first sitting who will function for period of two years and will be eligible for re-nomination for one more term only.
2. The Commission shall endeavour to send recommendation for appointment Supreme Court and High Courts well before the
vacancies arise.
3. On all issues the decision of the maioritv of the Members of the Commission present and voting shall be deemed-to be the decision of the Commission. In case of equality of votes, Chairman of the Commission shall have
casting vote.
4. The Chief Justice of the Supreme Court of India shali be the Chairman
of
the Commission and in his absence, or incapacity to be in the Commission to consider particular issue, the senior Judge of the Supreme Court of India in the Commission shall act as
5. The Commission shall have power to call for information from every court or authority for the purpose of effectively discharging their responsibilities and every such court or authority shall be bound to fumish such information in accordance with the requisition by the Commission.
1478. Procedure of the Commission.-(1) The Commission shall meet as frequently as-may be found necessary on such date and time as fixed by the Chief Justice of lndia in consultation with the other Members of the Commission or as requisitioned by the majority of the Members in writing. Unless otherwise decided by the Commission all meetings will take place in the Supreme Court premises where the office of the Commission shall be situate.
214
The Citizen antl Judicinl Reforms
(2) AII decisions of the Commission shall be taken at meetings convened
minimum of seven days' noticd and attended by not less than five members. Provided that in case of urgency meetings may be called at shorter after
notice.
(3) For the purpose of recommending appointment of Judge of High Court, the Commission shall consider the suitability of candidate only from panel of names recommended by Comrnittee consisting of:(i) Chief Justice and two senior-most Judges of the High Court concemed;
(ii) Chief Minister of the State or his nominee,
being the minister in charge
of Law and Justice;
(iii) Leader of the Opposition of the State Legislative Assembly or
his
nominee MLA, duly authorised in writing for this purpose;
(iv) Two distinguished Persons nolninated by the other mernbers of the committee at iis first sitting, who will hold office for two years and will be eligible for re-nomination.
(v) Advocate General of the State and if he himself is likely to be candidate for appointment, any Member of the Bar of distinction and
who is more than 65 years of age nominated by the Chief fustice of the High Court for this purpose; In the event of the State being under the President's Rule or otherwise not having Chief Minister or Leader of the Oppositiory the committee shall in their places, consist of the Governor of the State or his nominee and the Chief Secretary;
(vi) On all issues the decision of the majority of the Members of the
Committee present and voting shall be deemed to be the decision of the Committee. In case of equality of votes, Chairman of the Committee shall have casting vote.
(vii) The Chief justice of the High Court shall be the Chairman of the Commission and in his absence, or incapacity to be in the Commission to consider particular issue, the senior Judge of the High Court in the Committee shall act as Chairman. (viii) Procedure of the Committee.-(1) ilhe Committee shall meet as frequently as may be found necessary on sLrch date and time as fixed by the Chief Justice of the High Court in consultation with the other Members of the Committee or as requisitioned by the majority of the Members in writing. Unless otherwise decided by the Committee, all meetings will take place in the High Court prernises where the office of the Committee shall be situate. The staff of the High Court will function as the staff of the Committee. All the expenditure incurred in connection with the work of the Committee shall be charge on the Consolidated Fund of India. (ix) All decisions of the Committee will be taken only at meetings attended by minimum of five mernbers. The Committee may interview
Subordinate Courts-Their Independence, Appointment and Conditions of Seruice
215
candidates, gather information from the Bar Associations or from any other source and may frame regulations for the proper functioning of the Committee. All the proceedings of the Committee shall be recorded the and confirmed and the same shall be to the National judicial Commission expeditiously.
(4) The mav reject al1 the names recommended by the Committee for reasons to be indicated and call upon them to recommend fresh names.
(5) The Commission shall have power to call for such and further
information from any or more sources including organised bodies of lawyers for the purpose of assessing the sr-ritability of candidate for being appointed as Jr"rdge of High Court or the Supreme Court. (6) The Commission shall have on deputation from the Supreme Court such number of staff as it may be decide from time to time.
fix the allowances payable to members, candidates and others required by the Commission to attend its proceedings or otherwise asked to undertake any work by way of (7) The Commission may from tlme to time
reimbursement or otherwise.
(8) The expendlture required in connection wlth the Commission and its functioning shall be charge on the Consolidated Fund of India.
(9) Subject to the above and other provisions of this Constitution, the Commission may frame mles or regulations from time to time for the proper conduct of its business.
Courts.-It shall be the duty of tlre Commission from time to time to assess and fix the required Judge-strength for every High Court and the Supreme Court and also to recommend the appointees in time so that vacancies are filled r-rp withor"rt delay. 747D. Procedure for Recommendation.-(L) The Commission may in its discretion interview candidates for all appointments and such interviews shall be held in camera and no record of questions posed io the candidate and the 717C. Judges Strength o.f
answers given shall be kept and no parts of the proceedings shall be publicised nor shall be subiect to iudicial review.
At tl-re end of the interview, the Commission shall record its views as to the suitability or otherwise of the candidate for appointment in register, the contents of which shall be kept confidential and shall not be required to be (2)
produced in any proceedings before any court or authority.
L47E. Trnnsfer of ludges.---The Commission may recommend transfer of from one High Court to another, after giving an opportunity to the Judge
concerned to present his views on the proposal either personally or through written representation as opted by tl're Judge. 1,47F. Complaint ngainst judges conduct.-( 1) If any specific complaint in writing and signed by not less than 100 members of Parliament or by judges of that court constituting not less than 1/3 nr"rmber of the effective strength of the
The Citizen and ludicial Reforms
urt against a sitting judge, alleging grounds as contemplated under Article (4), the Commission may in its discretion enquire into such complaints. For purpose the Commission shall have all the powers of civil court for oning documents, enforcing attendance of parties and wihresses that of the judge concerned, to administer oath and such other powers to effectively dispose of the complaint.
(2) Enquiries contemplated under (1) shall be deemed to be judicial
(3) The Commission may record its finding on the complaint and
appropriate action like transfer from one High Court to another or tention from discharging judicial work for such period as the Commission deem fit, including action under Articles 124(4) and 218. 147G. General Powers and Protection.--:fhe Commission shall have Dower to
te its own proceedings. No proceedings of the Comrnission shall,
otwjthstanding any other provision of the Constitution, be called in question re any court including the Supreme Court and the High Courts, Tribunal, or uthority; and no Member of the Commission shall be answerable to any uthority or Court for anything done or purported to be done in the discharge purported discharge of his functions under this Chapter, or for any thereof.
endment of the Second Schedule:
with the prevailing saldry structure appropriate provisions made to ensure that judge after retifement receives from all sources an Consonance
ount equal to his last drav"n salary without perks like house, car, etc.
(,5&)
CRIMINAL JUSTICE ADMINISTRATION
IN
MYTH AND REALITY Ranbir Singh*
Gide:
would start with
quotation of the French writer and thinker Andre
Eoerything hns been snid already; but as no one listens, we must alzoays begin again"
In India, respect for the fear of law and the law enforcing agencies are evaporating from the minds of the criminals and the situation iJ degenerating very fast- The basic principle of criminal justice ,,to prove all cases beyonJ reasonable doubi" for conviction works as blessing in disguise foi the
criminals. In many instances, prosecution in our criminal courts ends in failure due to non-cooperation of the public, reluctance of witnesses, lack of co_ ordination between investigation agencies and prosecuting agency, lengthy investigation procedures, rampant corruption at most levef inefficiency of investigator, prosecutor, and interference of politicians, mafias and wealthv people of society. Criminals are getting acquilted because of variety of sucir reasons and every acquittal generate sense of self-confidence among the criminals to repeat the crimes. As result, day by day, crime rate is showiig an increasing hend. Indeed so much is writtery debated, discussed about crimeind crirninal justice system, yet nothing seem to change for the better. perhaps the most serious challenge is in the misplaced belie in absolute of crime and criminal justice. Criminal justice system have always been facing problems and challenges. Things have not changed much over the year. take yo' back as to what were the observations of hvo British administrators, Castairs and Moon. First I begin with Castairs:
"In England,
jnstice goes to the people; in lndia the people had to come to justice.,... (The litigant) had to find his way to this strange tribunnl in an Director, NALSAR" University of Law, Hyderabad. 21.7
The Citizen and ludicial Reforms
218 unlcnotpn land as best dreaded, or alone.
could, in chnnge of the police, whose tmder mercies he
for long. Around the courts were swarms of petty lawyers who had their touts on the roads and in the aillages. Longer he came within hail of the court he had been fastened upon by sez.teral of these, and
lf
he went alone,
it
was not
persuaded that his only chance of surcess uas to put himself in their hands; say whnt they bade him; pay what, when, and to whom they told him; and aboae nll, to beware of telling the truth; it would nner be belieued.
In those strnnge cases there wns no mmmon ground. lMateznr one side asserted that other denied; all the witnesses were tutored; and whether true or not to begin with the case as presented on both sides was inaariably concocted'
one came to the conclusion that nenrly aII, saae fao of the Srnper cases, were episodes in some dispute not before the court. The pnrties were not the real
for
parties, but puppets of othus, who remained in the bnckground paying for and dir ectin the pr ceedin gs.
Most of the genuine disputes nezser ieached our courts at aII, bttt zuere settled nt some enrlier stage and in other wnys......
While we dispensed justice as best we could to those who came btfore us, we knew that an enormous number of iniured persons netler came to us nt all. wny, many dared not come for fear Many were detened by dffiulties in offending the local despot, who by threats of injuries threats zuhich he could carry otft uns able to pret.)ent ther4 from complaining, and to stop the mouths of their witness" (Castnirs R. "The Little World of nn Indian District Officer" pp. 13-15 (Macmillan, London, 1912). Penderel Moon who served during the last decade of the British rule had also similar opinion. According to moon: layman, still more an illiterate peasant, who endesaoured to prosecute his own complaint of conduct his own defence in one of our Indian courts had not the remotest chance of success. Tlte procedure nnd rules of eaidence were so elnborate that eaen educated perbons did not understand them, and the proceedings were conducted in a language unintelligible to the maiority of the litigants. The courts were shnm and a mockery in which police, zoitnesses, lawyers and judges all played their part in producing or using eaidence which they knau to be quite false.... Ezteryone who had anything to do with the criminal administration was awarc
of this and deplored it. But as the system was not well established and supported by the aested interests of the lawyer.class, no one showed the slightest inclination to alter it. Most English fficers simply washerl their hands of the zuhole matter. Haaing worked as ordinary magistrate for short
while duing their enrly years of seraice, and haoing decided thnt hearing criminal cases u)as futile waste of time, they put all this behind them nt the earliest opportunity. simple people had become habituated to systematize periury, hsd been corrupted by unscrupulous lauyers, had been taught to flock to the law courts,
Criminal lustice Administration in Myth and
Reality
219
nnd to reael in the tainted atmosphere of bribery and chicanery thnt surrounds
them. Litigation had becolme national pastime and the criminal law recognised and well-tried menns of hnrassing, imprisoning and eaen hanging one's enemies. In lndian conditions the whole elaborate machinery of English
Iaw, which Englishmen worked and had been completely peraerted..... myrinds of lndian magistrates daily spent hours in their courts solemnly recording word word the e.aidence of illiterate peasants, kttozoing fully well that ninety per cent of it was false. Eaen if the e.oents described had actually occurred, the alleged eye-witness had not seen them. Eoen if the accused zoere guilty, it wni perjury which proaed their gtilt. False eoidence wns always in demand as much to proae uhnt uas true as to establish what was false, against innocent and guilty alike it was equally necessaty". (Quoted by Neale Walter, Economic Change in Rural India" p. 799, Ynle Llniaersity Press, L962). So under the British rule human rights and democracy for Indians were suspect and social justice was anathema for the processes of justice, may it be civil or criminal. For a1l the ills in our system we have been blaming our foreign masters and colonial jurisprudence, which we inherited. If one would honestly look at the observations of Castairs and Moon it would be very easy to conclude that things have hardly changed even today as far as the criminal justice system in India is concerned.
Crime in India is on the increase. Fear of crime and violence has affected the quality of life of the people in cities and country-side. Hardly day Passes without the print media giving gory details of crime against persons and their property. We have become insensitive to violence and crime against fellow citizens. An atmosphere of helplessness prevails and inform all around over society. It is not that we have become country of criminals overnight' This is mainly the cumulative result of the politician-criminal nexus in vogue, the coliapse of the criminal judicial system, erosion of authority and inability of the police to devote time to crime work, and lastly, and most importantly, the apathy of the citizens to the crime situation and their failure to take the minimum safeguards to protect their own interest. Crime Prevention is not Problem of the police alone, it is the problem of the enfire society.
The Indian legal system of criminal justice is vast complex enigma. Based on some of the most noble and praiseworthy ideals to which any society has given recognition, it is regularly marred by incidences of overwhelming iniustices. The gap between the ideals at the foundation of India legal system of criminal justice and the inequalities that occur in its daily workings is gap that should be closed if equal justice for all is to become reality in country governed by rule of law. Law and order, innocent until proven guilt. Equal justice for all. These are the phrases commonly used to describe the role of criminal law in the Indian social order. They derive from the traditional view of criminal law as that body of rules and procedures that requires that every person who breaks a law will be arrested, tried, convicted and sentenced to imDrisonment.
220
The Citizen and ludicial Reforms
It may not be out of place to mentiqn that almost all the components of the Indian political system the Executive, the Parliament and the Judiciary are on the verge of collapse "things are truly falling apart". And the constitutional goals of bringing about fair and just society by fair and just means are receding farther and farther every passing movement.
In such situation, the criminal justice system is not an exception.'It is system in which hardly three per cent (3Yo) of the persons arrested by the police, under the Indian Penal Code, get convicted. It is also a fact that neither the guilty are speedily brought to book nor the innocent are spared of harassment. The investigation procedures almost remdn as outmoded as during the preindependence days when justice Sir Walsh of Allahabad High Court had the occasion to comment "Whereas the English detective begins with his available witness, and works his way up to the discovery of truth, the Indian subinspector begins with the accused, and from him works his way up to witness". The country is peculiar case of soft and permissive state with stern and stringent laws. It combines the disadvantages of both. While on one hand it suffers from the fall outs of softness ahd permissiveness, on the bther, it is [o severe criticism for having draconian As result, neither the objectives of strong laws are attained nor the country's image is effectively protected from the onslaught of national and international human right bodies for violations. The fundamental malady is the absence of healthy social and culfural roots of our democratic institutions, As result, the role of the criminal law in our society, which seems so clear in its traditional form, has come into serious question. Uncertainty prevails, and question go unanswered. Henry George
observes:
"When demouacy becomes conupt, the best graaitates the bottoms, the worst floats to the top and the tile is replaced by the more aile" We obseraed that we do not now practice democrncy but graaitate toTt)ards 'democracy' with perceptible participation of criminalr their peraasiae influence.
In the city of Delhi alone in the year
1994 more than 12,000 persons,, accused of one crime or another, escaped punishment. Wilson john in his article
"why drey go Scot-Free" observes:
Do you know that 78 per cent of the oiminals escape punishmmt in the city?
Do you know that more than 40 per cent of the persons branded as accused by the police are either acquitted or dis|harged?
Do you know that out of the 22 per cent conuicted cases, majority are either accident cases or petty offences where the accused haae no choice but to plead
guilty?
Do you know why does it happen?
He finds that the following factors are responsible for the situation. The cops goof up during the investigations; the prosecutor do their homework and the judges are overworked and only keen on disposing of cases.
Criminal lustice Ad.ministratbn in MVth and Realitv
result walk out of the prison, honorably acquitted or discharged and even on the glound that case files are missing.
The criminals as
Let us look at the crime figures:
In the year 7994 only 3,579 persons were convicted in the metropolitan courts whereas the total number of cases decided was 75,675. That makes conviction rate of 22.83 per cent. As many as 6,L25 persons, rightly or wrongly charged, were acquitted and 568 others were discharged. According to figures (April 98) provided by Delhi Police,94 persons were killed,46 women raped,27 cases of rioting were registered and three persons were kidnapped for ransom. And all this only in the first two months of the year (1998). The most alarming increase has been recorded in the number of auto-thefts. While in the first two months of 1,997,L,722 cases had been reported, in the first two months of 1,998, 1,218 cases have been recorded.
The main idea of this paper is not to paint an entirely gloomy picture of the
whole of criminal justice system but to bring in sharp focus what is really
harrning the very foundations of the criminal justice environment in the country. The reasons are not unknown. venture to probe into and point out some of the main areas which need attention and pose a challenge to the criminal justice system in the country.
Ibeginwith: The Cops large number of the city's investigating officers are ignorant about even the basic provisions of the Code of Criminal Procedure and the Indian Penal Code and other laws. In one of the judgments the court pointed out "To say the least, the investigation done by the investigating officer was shoddy and probably mischievous". Police officers, most of them are equipped with only
general investigative techniques which they use for throughout their career.
all kinds of
cases
Prosecutor
Next pitfall in the systems is at the prosecutor's office where not much attention is paid to the briefs submitted by the investigating officers. Public prosecutors are responsible for presenting watertight cases before the trial court but in reality, hardly any effort is made to scrutinise the case files and order relnoval of lacunae. Prosecutors are over burdened and do not often read the files before appearing in the court. The prosecutor plays perhaps the most crucial role in the administration of criminal justice because the office occupies central and very important position between the police and the courts. In fact, the prosecutor is the "traffic cop" of the criminal justice process. The decisions that the prosecutor makes determine how cases that are brought by the police will be disposed of. Many attomey become prosecutors without any meaningful experience in the crirninal justice process and have only rudimentary knowledge of criminal law. Part of this problem stems from the lack of preparation that law schools
222
The Citizen and ludicial R{orms
provide in the area of criminal law. Most law schools provide an inadequate course in criminal law dwing the entire course of study. Prosecution failur$ not only speaks on the efficiency of investigating agency or prosecuting a[ency but also on the ineffectiveness of enacted laws and total criminal justi(e system of our country. The failure of prosecution provides confidence and encouragement to criminals to commit more crimes. It is high time to rectify the drawbacks in cr[minal justice system to bring a sense of confidence among the law abiding citizens.
Delay Delay also gives the criminal lot of time to manipulate the witnesses. Where do we look for justice in our land today? Should we look for it in the criminal courts where the number of pending cases is counted in millions (25 million to be exact). Or should we look in the civil courts where cases which took 20 years for decision may now take 30? Should we search for it in ihe 18 High Courts where the accumulated cases court upto 1.8 million any day now? Or in the Supreme Court where despite the efforts of the highly respected Justice Ahmadi, the number is impossible high? hl consequence the Supreme Court has not been effectively and speedily able to serve the purpose for which it was designed, and is becoming just another court of appeal.
Comrption Lawyers and litigants alleged that corruption is so rampant in the District Courts that it has become an intrinsic part of the system. The primaries of the corruption cancer are spreading so fast in the criminal justice system at all levels that it has almost become an imperative necessity to go for major surgical operation as minor cosmetic surgery will not be able to elevate the fast sinking criminal justice administrative system in the country. "Everyone accepts it and litigants take it for granted that every time they visit the courts compound, they should be prepared to sell out minirnum of Rs. 50. Bribe starts at the very door step where an accused litigant comes face to face with the naib court Ahemad, an important court functionary who is responsible for safekeeping the court records. In criminal cases, some of the police documents can be of vital importance to the Defense Counsel. Documents like internal police diaries, which are meant for "judge's eyes only fall in the hands of Defense Counsel, these documents can turn the case around; Ahlmad's fees can range form Rs. 50 to Rs. 500, all depending on the case. The files suddenly go missing or the Court staff becomes 'extremely busy', lawyer pointed out. "Pay them Rs. 50 you can have the entire file. There have been instances where the whole court file has been photocopied and given to litigants. Witnesses
In our court witness is treated more shabbily than criminal. He is not offered any seat in the court, the public prosecutor ignores him, the court is rude to hirn, the judge has no time for niceties elther. He is the only person who is left alone in an alien surrounding and at the errd of the day he is told to come after month, He deserves not even a thank vou. Do vou think he will come asain"
Criminal lustice Administration in Myth nnd
Reality
222
Such harassed witnesses either turn hostile, go against the prosecution case or
change their addresses.
Judges
The judges say that they are the most harassed, over worked and underpaid link in the criminal justice system. Every judge has on his roster more than 50 cases every day, cases which might be several years old, cases which might be petty and cases where the counsel are interested in detay rather than judgment. Asks senior Sessions |udge. "How can judge, after morning of long list of bails, hear witnesses, record their evidence in another 50 odd cases". In ihis hurry or collecting brownie points, good CRs, extra bucks, out of furn promotions the cops, the judges, the prosecutors and the lawyers some how fail to realise that out there, in the city there are countless innocent citizens whose life and property might be jeopardised if criminals continue to outmaneuver the criminal justice system with such shocking impunity. Police
With the emergence of New India, the duties of police have become
multifarious. In addition to its routine duties, the police is supposed to perform several other duties in the present socio-political environment where law and order has gained importance over all other issues which matter to the power that be. It is an admitted fact that everv policemen sDends more than fifteen hours day on active duty at the cost of iris perso.,al health and ignoring the welfare of his family. No one looked eager to share the burden of increasing work load on police, neither those in authority are able to appreciate in right perspective the heavy demand on the time of police. Police not only catch criminals but also provide peripheral services in some areas. It is needless to mention that the police duties have become to wait for long hours on the roads because the protects often travel behind the schedule. Everybody who is part of the Govemment, be it senior officer or politician, feels unsafe unless being escorted and saluted enrorlte by the men in "KHAKI". This duty alone, on an average/ consumes more than 20 per cent of the working hours of police force. Armed house guards and gllrunen standing at one's back are the first introduction of, our public representatives and public servants. They look incomplete and unimportant without these two power symbols. Nearly 10 per cent of the total police force of the State is always deployed as standing guards or gunnen to different categories of VIPs and officers. Refonns in Substantive Criminal fustice
In
fast developing society due regard has to be given to make laws effective. Laws can be an effective tool of social engineering and social justice when in the pursuit of this objective the laws are reviewed from time to time. The socio-economic changes in the society mandates that our laws in order to meet the requirements of the present day society must be updated, the proposed areas of reforms in substantive criminal law can be:
1. Criminal law
charges and period of limitation.
Homicide on request/Euthanasia.
224
The Citizen nnd
ludicial Reforms
3. Diminished blame worth.iness. 4. Extraordinary child kidnapping. 5. Sexual abuse of instifutional inrnates. 6. Retention of death penalty.
Upward revision of fine amounts prescribed by the IPC. 8. Some changes as envisaged in the present adversarial system. 7.
Seduction. 10. Crime against privacy. 11. Offences which endanger the person. 12. Transportation hazards. Reforms in procedural law Substantive law becomes meaningfui only through the procedural law. So far as the citizen is concerned Law is, what is implemented. In other words, the
meaning and content of law is determined, to an appreciable extent by procedural law. Criminal procedure therefore, has human rights dimension. Procedural Criminal has thus to respond to the changing moods and needs of the society and the individual. Among the reforms that have been recently effected and need further investigations are: Anticipatory Bail Two decades ago when justice Krishna Iyer declared in landmark judgment,'Bail, not jail'he was talking about every citizen's right to justice. Bail was the only way an accused could escape the punishment of jail even before he was convicted. But over the years, seeking bail appears to have become an escape for criminals to delay trial, hoodwink the investigators and free themselves from penance. There are allegations that more and more criminals are ready to offer hefty sums to get bails. There is need to have fresh look into the provisions of the entire bail procedure.
Victim The entire mechanism of justice dispension in the country is meant to protect the interest of crime victims. It is absolutely logical that the victim must not be exposed to "secondary victimisation" in the criminal justice process. This kind of suffering may not figure ab the first concem of the criminal justice agencies but it definitely has bearing on the democratic foundations of the State.
Who is the victim of crime? Broadly, society as whole; specially, the injured individual or group; sometimes, the offender himself or his family; at times, unidentified or unborn persons. /hat is the help the law can render to victims in cases where the culprit is punished or the offender is undetected or is absolved by some exception or judicial error or holds too high position where the law hesitates to reach or is paralyasdd by the clout of the criminal? There is also
need to reform lawg relatinq to:
Criminal Justice Administration in Myth and
Reality
225
1. Pre-sentencehearing 2. Detention of approvers; 3. Requirement of mentioning the age of person sent to prison in the
warrant for prison; 4. Prison Reforms: Correctional Justice; 5. Reforms in sentences and sentencing: theories of punishment ends of criminal justice; and 6. Accountability, etc. Conclusions
In the last 50 years we defiled
democracy hooliganism in the Legislatures. We have betrayed coalition Covemment, tho'gh tliey may be the only way of ruling country as diverse and as big as ours. We have made the law ineffective, and made the police use violence to deal with crime. We have denied justice to the people. As result cheats, swindiers, fake investment companies, Gulf job rackets, unscrupulous land agents, corrupt politicians and officials flourish everywhere. At every comer there is somebody waiting to trip the unwary citizen. We have given full liberty to the criminal 6y deiaying ani corrupting justice. And we have made politicians feel that the law is unable to touch them for crimes which have made the whole nation despise them. Admittedly it is not possible to cover all the problematic paradigms of criminai justice system in the country. This attempt is modest one. There is no doubt that our judicial process has to be completely overhauled to achieve the aims of criminal justice system and the challenges faced by it. The drive towards rational society requires distracting of the elements of criminal law. The modern regulatory state may be becoming dysfunctional by our futile attempts at locating general principles of criminal law from only the criminal iustice system. By not looking beyond the text of criminal law, we are merely subverting which have role in criminal law iurisprudence. The post modern alternative combines legal pluralism, post modem conceptions o? diffusion of power. The State is not the only source of rules of law. peopie operate in several spheres simultaneously and therefore single set of rules appeir to be uneven, unstable and non slmchronic in the different spheres. Criminal law has to be situational, emphatic and participatory rather than objectively distanced; it has to be local, but being local it has also to be total. To conclude, admit may have over emphasized to drive home point. May be I have offended some but this have done delibet'ately to give rise to sense of shortcornings. have also over-exposed the problems faced by our bodypolitics just to bring low-visibility areas into sharp focus. My defence is only that sincerity and integrity is superior to expediency. And, finally, as George Bemard Shaw remarked:
It is not only good for pcopte to be shocked
occasionally, but absolutely necessnry to the progress of society that they should be shocked pretty often.
c5&)
REFORMS
IN
THE
CRIMINAL JUSTICE SYSTEM D.R. KaarthikeYan*
Ldiu u, nation and the people of India
are wedded to the concept of rule
of law and supremacy of the Constitution.
The Fundamental Duty, in fact the sine qua non of any Sovemment rc to govern. The basis of good govemance- is ensuring peace, and .order;nd of the citizens. Then iroviding reasonable sense of iecurity to life and property fnty it wit Ue possible for any govemment to ensure progress,, development and provide social, economic and political justice to all the people. To create and maintain public confidence, the justice rendered has to be inexpensive, speedy/ substantial and unpolluted. Justice must not only be done but also should seem to be done.
It is common knowledge that the criminal iustice system is on the verge of reasonably good-system has deteriorated over period of time and collapse. no-it is found to be functioning unreasonably badly' Delays are so unacceptable that one does not feel that the system is still functioning.
.Unduedelaydisruptsthewholesystemandresultsingraveinjusticeaction, slow and Justice delayed is justiie denied. Ineffective preventive
inefficient investigation, siow and ineffectirle trials' antiquated and outdated Iaws and p.ocedirres of investigation and trial, lack of commitment and cooperation on the part of the people have resulted in deterioration of the entire sysiem to the extenl that the commission of crime has come to be considered as
low risk high profit business. An unjust acquittal is as bad for the society as an unjust conviction is for the individual. Former Director, Central Bureau of Investigation and Forrner Director General, Na tional Human Rights Commission.
Reforms in the Criminal lustice
System
227
In such
permissive atmosphere crime naturally flourishes. When ordinary crime goes unchecked, it becomes fertile ground for organized crime and terrorism to thrive. While the stake holders ultimately are the public at large, the crucial parts are played by the investigating and law enforcement agencies, the prosecution, the lawyers, the parties and witnesses and of course the judiciary. Each of the players is blaming each other for the sorry state of affairs. If one analyses subjectively, each one of them have to accept their share of the blame for the prese4t hopeless situation of the criminal justice system. Unless each one of us realize and accept our own responsibility and make efforts to improve the
functioning of our role, there is very little hope of the criminal justice system improving to regain the confidence of the cofiunon man.
will briefly mention the
areas in which attention has to be paid and go into some more details on some of those aspects.
Laws dealing with procedure, evidence, offences, investigation and court procedure and evidence are outdated and totally out of tune with the demands and challenges of the problems now being faced by the society. Hence the urgent need for comprehensive law reforms to effectively meet the challenges posed for
cir.ilized existence.
Some of the aspects that should be considered are introduction of
system
of pre-bargaining, massive decriminalization of offences, laws for proiection of
witnesses and victim compensation, appointment of Special or Honorary Magistrates on short-term basis for trying petty criminal cases which clog up the criminal justice system and a direction to complete criminal trial within six months. Modem methods should be adopted for better case management including increased use of Computers and iatest Information Technology devices.
There should be check and limitation on the number of adjournments and remands. Once the trial commences, stay should not be granted except in cases where grave miscarriage of justice is established.
Recruitment procedures should be revised to ensure that only competent and suitable candidates are appointed as Investigators, Prosecutors and Magistrates.
Training methods should be re-examined and updated to ensure
appropriate training is given for sufficiently long periods to the lnvestigators, Prosecutors and the judges. At regr-riar interva.ls training should be given to these categories of officers as in dynamic society there will be changes and each of the functionary.should be prepared to effectiveiv deal with such changing situations. The nr.rmber of courts and judges, which are toially inadequate today, should be increased considerably to clear the backiog of the cases and to ensure in futr-rre all the trials are completed expeditiously.
228
The Citizen arul Judicial Reforms
The financial constraint in immediately constructing court buildings and other infra-structure facilities for additional courts can be overcome bv fullv utilizing the infra-structure and holding Courts in the existing buildings in two shifts one starting early morning and the other starting late in the afternoon. The co-operation of the lawyers could easily be solicited, as unless the trials are speeded up public confidence in the entire system cannot be restored.
Limit should be fixed for adjoumments and time for
arguments. Submission of written arguments may be encouraged after fixing time limit for oral arguments. The court should be requested to pronounce judgments soon after or within reasonable time after the conclusion of arguments. The copies of the judgment and other orders should be made available promptly. The competence of the Bar and the Bench could be improved by making
five-year law course compulsory and universal and by frequent in-service courses and workshops on new emerging fields of law.
Altemate Dispute Resolution Systems like Lok Adalats should be established and encouraged in all parts of the country. To get over all the controversies on appointments, transfers and postings, All India Judicial Service and National Judicial Commission should be established.
in the judiciary advance planning and the
Steps should be taken to ensure that no post at any level
remains vacant. This should be done
by
administrative action on the part of the Government.
Commissions chaired by sitting judges enjoy greater public confidence. Such Commissions conclude their responsibilities promptly. Hence all Commissions should be headed by sitting judges only. Age of retirement should be considerably raised for Supreme Court and High Court Judges.
Law and Judicial academies of excellence shor"rld be established in
different parts of the country. Investigation of serious crime should be entrusted to police officers with legal qualificationsr Even other police officers who have no legai education should be encouraged and provided opportunities to obtain. degtees in law while in service. Increase in working hours of the courts and reduction of court holidays should also be examined.
Crime Crime is phenomenon which cannpt be divorced from the social context nor can the background of the offender be ignored while making an analysis. Organized crime has its roots in the qhanges coming about in the nature of society in the modern day world. In all regpects therefore it can be said to have its origin with the advent of modemity.
For quite few years there has been an increasing clamour against growing criminalisation of socio-economic life in India. In addition to petty crimes and sireet criminals, over the yeais new types of criminals and crimes
have come to the fore which have assumed menacing proportions as underlined by various scams and media reports. The new breed includes cdminals who are
Reforms in the Criminal lustice System
apparently suav_e, soft-spoken, well-dressed and well-educated in the formal socially respectable, politically influenfial and economically,;u;;. lense.an! Experts have often made analylis on *re basis of certain theories. A'popular theory is the marxit theory of ciime. According to this theory crime is .dit;f rne crass structures. That is to say that lower classes driven to the verge of p.overty by capitalist structures would nafurally commit crime to survive. After all when you-can't expect morality or obedience to the law from person who starves. The theorists believe that since crime is concentrated in the iower class, it is caused by poverty or by personar and social characteristics believed to be associated with povert, including feeble mindedness, psychopathic deviations and slum-dwellers.
What does motivate people to conmit organized crimes? Those who indulge in such crimes neither berong to the deprived strata of ,o"i"ry.o. u." they uneducated and influenced by the company of undesirable peoplel
Among the earliest explanations for crimes of the rich and influentiai is given by Aristotle: Men may desire superfluities. in oriler to enjoy pleasure unaccompanied by
pain nnd, therefore they commit crimes.
He also believed that ,,the greatest crimes are caused by excess and not bynecessity." Undoubtedly the acquisitive nature of the present d;f ;;;i;t and values subscribed to by the middle class have in no small measure contributed towards creating for the growth of organized crirne. _conditions Money gives respectability, and people are respectel for what ttre"y nave or what position they hold, not for they are as humanbeings. The end result is that the ends have taken precedence over the means. If resiectability can be p"r"nr*a then surely it is shallow type of respectability. Society doesn,t ,"e#to mpor" any moral restrictions on acquiring riches and power and methods used. R.H. Tawney has said that such societies as had been found today, .. "assure men that there are no ends other than their ou,n ends, no raw other than their desires, no limit other than that which they think advisable. Thus it makes the individual the centre of his universe and iissorves moral principres into choice of expediencies." Police Poiicemen must rea.lize ttrat they are the most vital service components of the.state to society and they are the servants of the people not th"i. ;;;;;
\Alhile making.a comparison in number population India comes low in density wh world.
of policemen per thousand of
the
compared to other countries in the
The operational effectiveness of the force is thus undermined by its poor strength. The police is also burdened with enforcement of too lu*". i.orr, -uny this.-it seems quite clear that the police machinery isn't geared to handle the challenges posed even by ordinary crime let alone organized crime.
Political interference in police is another cause for the emergence .of organised crime. Police has nbw been come to be expected to be used for
230
The Citizen and lttdicia,l Reforms
with satisfying the ends of the ruling party. Those officers who do not comply the rlqu"ests (or orders) of the political masters are promptly meted out punishment through postings or transfers. The situation is dismal in some States.
The criminal-Politician nexus is not theory but fact. The politician uses instruments to hijack independent police functioning. Unfortunately mole and more officers are dropping their conscience and are willing to be partners to the endeavours of crirninaLpolitician duo'
Need for Law Reform
Thereissurfeitopinionthatthepresentsubstantiveandprocedtrrallaws to enact are inadequate to deal with the rise in organized crime. There is need legislationto give powers and give law the force, wtdch is required to tackle the iike the USA and European countries. have -!r,u.". Oerr"etoped countrieJ comprehensive iu-, ott their statute books. Features of these could be incoiporated. The Indian Penal Code was statute enacted close to hundred and fifty years ago in colonial rule conditions where crimes of the present day been contemplated about'
could not have
The Criminal Procedure Code is also in need of review and considerable
changes are calied for substantial law.
in ordet to prevent procedural law from
defeating
Mr. Nani A. Palkhivala, eminent Senior Advocate once remarked that' ,,The triai of civil suit in Indian Courts is the closest description to'eternity''" Crimlnal cases are not far behind. Trial courts in the country are thronged by millions, who wait for decades for the disposal of their cases. Be it the shortage
of presiding officets, the lack of the reqrrired number of courts, the complexity of the legal i.o."rr itself or the all-pervasive callousness, the fact is that the judicial syitem in its present form is painful grind on, rather than the last resort for the common man.
Burden of Proof
Theproblemofwitnessco-operationisreal.Lawcanbethwartedwhere witnesses, because of social pressure, group alliances, or allegiance' intimidation, threat or offer of money refuse to depose truth on oath and provide the testimony needed to make successful conviction'
judgment on the basis of an evidentiary package that is unreasonably incomplete, completeness being measured relative to the total package of evidence that is (or should have been) reasonably available to the court. The burden of proof should reflect the need to avoid rendering
Burden of Proof and its extent is from weighing the conseqnences of mistaken ruling for the prosecution against the conseqrrences of mistake.r ruling in favour of the accused in deciding what standard of The basis
persuasion is constitutionally required'
The prosecution (the state) has the burden of proving all the essential elements, br ultimate facts, of the crlme charged. These include proof of the
Reforms in the Criminal lustice
System
237
criminal act, the accused/s mens rea, that the harm, if any, mentioned in the definition of the crime, was proximately caused by accused's criminal act, and the harm itself, by the standard of proof "beyond
reasonable
doubt".
The accused, on the other hand, generally has no burden of proof, except perhaps the burden of creating reasonable doubt in the minds of the factfinder as to the strength of the state's case. The accused may remain silent and offer no defense, relying wholiy on the presumption of innocence to carry him to verdict of acquittal if he is confident that the state has failed to meet its burden.
There is no duty on his part to take the witness stand in order to explain ambiguous or apparently incriminating circumstances involving him. Of course, he may testify in his own behalf if so inclined, but if he fails to do so, the factfinder should not draw from that failure any adverse inference of guilt, and neither the judge nor the prosecutor may comment upon the fact.
The factfinder should withhold judgment at trial until all the evidence has been presented, and, unless the factfinder is convinced that the state has met its burden beyond reasonable doubt, it should acquit. The same rule does not apply to the prosecution: as to it, the judge may direct verdict of acquittal or dismiss the charges whenever the judge believes the prosecutor has failed to present prima fircie case or whery at the conclusion of the state's case-in-chief or at the end of the trial, he could not reach the conclusion that the state had proved all essential elements of the crime beyond reasonable doubt.
It may occur to the average
arrive at fully informed decisions by hearing from the accused, no matter who ultimately has the burden of persuasion as to any element of the crime or tort or allegation made in the complaint. It is difficult to explain to such person especially on the basis of privilege against self-incrimination why criminal accused is not expected to do this until and unless the state fully proves its case beyond 1ay person that one may best
reasonable doubt.
The concepts that inform the presumption of innocence are:
accountability, responsibility, culpability, liability, and guilt.
Accountability: In modem times this expression means answerable in damages or punishment for one's actions. If person is morally or legally accountable for his conduct, he owes moral duty to answer questions relevant to that conduct to persons in authority-i.e., to persons who have the official task of conducting investigations into suspected misconduct whenever sufficient basis exists for conducting such an inquiry. What should be done when an accused or uncharged witness fails or refuses to render an account of his conduct or of the suspected conduct of another? that they should be allowed to refuse to speak without any cost to themselves is jwt as unreasonable, and, in effect, is repudiation of any duty to
relevant to crime. Why should people not be at least to infer from suspect or accused's obdurate silence in the face of an accusation whatever inferences are reasonable under the circumstances? The adverse inference that many people draw from such silence is that the person
232
The Citizen and ludicial
Morms
accused is conscious of his guilt or fault/ keeps his silence rather than talking and lying because he has something to conceal, and that which he attempts to conceal is probably his involvement in the tort or crime of which he is accused or is suspected. We should distinguish between that which causes the motivation or intent
for committing the act and that which causes the result or harm of the act namely, the act itself. The former is largely matter for subjective proof involving the state of mind of the actor; whereas the latter, the act itself and its consequences, is matter of objective ptoof. The distinction is central to the proper allocation of the burden of proof production between the prosecution and the defense. The proof of what caused the harm in the objective sense is as available to the prosecution as it is to the defense; in other words, it involves no exploration into the mind of the accused, an area inaccessible to the prosecution except by supposition or inference.
Thus, proof of objective cause is properly part of the state's burden of production. Except when an accused's motivation becomes relevant to the issue of identity, rnotivation should not be part of the state's case.
It should be part of the accused's burden to show that he lacked the
motivatiory intent, or lack of care necessary to commit the crime. In the absence of proof on the accused's behalf, the court ihould be permitted to infer from the accused's acts and the circumstances that he intended the natural and probable consequences of the act, or, if negligence is the required mens rat and if the harm was one that does not ordinarily occur in the absence of negligence, that the state of mind was negligent. \A/hy are such onerous standards irnposed on the state while it is suffice that the accused just creates reasonabl,e doubt about the state's case in the mind of the judge to eam him an acquittal. The reasons traditionally held out are:
(1) the stigmatizing effect of crimihal conviction; and (2) the nature and severity of the sanctions applied in each.
The most common rationalization given for the higher and stricter standards and rules in criminal cases is the greater severity of its sanctions
(punishments) as well as its social consequences (stigma, disrepute). Another common rationalization is the greater need in criminal cases for protection of the individual against the massive forces and resources of the state. Both of these may have been true in the past, but they are far less true today.
Today, in the present social milieu, loss of reputation and social standing counts for little among the vast majority of lower-class offenders, especially juveniles, and in the higher ranks of society, wealth, celebrity, and mobility often remove the stigma of criminal conviction. Attempts ought to be made to lighterr the burden of prosecutors in proving prima facie case in criminal and while imposing on the accused the duty of producing evidence regarding the accused's mental state at the time of the incident, mens rea, intent, recklessness, or negligence and regarding any excuse
Reforms in the Criminal lustice System
255
or affirmative defense he may have, once the prosecutor has rrrade its prima Iacie case. It reduces the prosecutor/plaintiff's initial burden of production to proving that the criminal act was committed by the accused or accused's act, that the act caused the injury (if any) required by law and suffered by the state or victim, and that there was no justification rendering accused's act privileged and non-actionable. Once this proof is made, the burden shifts to the accused to prove his non-culpability (or to create a sufficient amount of doubt about his culpability) and/or the existence of complete or'partial excuse or affirmative defense.
The possibility exists that the society, increasingly frustrated over the operation and frequently bizarre results of our justice system and once made aware of the fact that there is reasonable altemative drat will not deprive them of their liberties, will be prepared in the future to force these changes. Therefore once the prosecutor/plaintiff has introduced sufficient evidence of the above to satisfy the trial judge that prima facie case has been presented, the burden of going forward in producing the following evidence shifts to the accused:
(a) that the accused lacked the requisite mens rea, intent, knowledge, recklessness, or negligence; and/or (b) all the necessary elements of whatever or partial excuse or affirmative defense the accused has raised in his plea or pleading.
At the end of the trial, the court must:
(a) be persuaded that all of the elements of the crime or tort for which the accused is on trial have been proven, regardless of which side bears the burden of production; ft) decide whether the criminal act was legally justified if such justification is claimed; and, (c) decide whether an excuse or affirmative defense raised bv the accused has been proved to the level required. (4)
We may consider law in favour of admissibility of confessions and
enabling sanctions against failurb to reply to questions. ln Rnjasthan v. Union of lndia, 7978 (1) SCR 1, the Supreme Court obsewed "it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of govemment with power sufficient to answer all its legitimate needs and at the same time incapable of mischief".
Similarly, "The possibility of abuse of statute otherwise valid does not impart to it any element of invalidity". ln Kesaoananda Bhnrati v. State of Kerala, 1973 Supp SCR 1, Khanna j. observed as follows at page 755:
"ln exercising
the power of judicinl reuiew, the courts cannot be obliztious of the praetical needs of the goaernment. The door hns to be IS open for trinl and error. Constitutional Inzu like other mortal contrioances has to take some chances. Opportunity must be allowed for oindicnting rmsonable belief fu
experimce."
The present adverse trial system is exhaordinary. The judge, who might be better described as referee, is extremely passive in this system. The adversary
tJ4
The Citizen and
ludicial Reforms
system has often been described as a garne or contest, whose only purpose is winning for one's client rather than elucidating the facts, clarifying the law, or doing justice. Protection of Victims and Witnesses
Generally, law does not permit the use of anonymous or disguised witnesses (though they may be coded witnesses) even in situations where the accused or her associates threaten the physical safety of the witnesses. Instead the criminal justice system ought to protect witnesses, including victims, through other means. Among such protective measures are the pre-trial incarceration of the accused and, in extreme situations, witness protection programs.
When threat to witness emanates from unrelated third parties, as might be the case for undercover agents, the courts permit the exclusion of such spectators or total closure of the proceedings to the public, including the press. Such exclusions will be narrowly construed so as to violate either the accused's constitutional right to public hial or the freedom of speech or of the press. The women's rights movement with its focus on the (female) rape victim
provided the starting point for the victim's rights movement which aims to improve the position of the victim (and of witnesses) within the criminal iustice system. Some state constitutions and state laws assure the crime victim and
other witnesses of safety and protection.
Therefore, protective measures have to focus on pre- and post-trial procedures, including the detention of the accused prior to trial to prevent him from endangering any witnesses' life or health and the placement of witnesses in the witness protection program. These protections are designed to guarantee the integrity and effectivenesg of the criminal justice process. Were the public's belief in the criminal justice system undermined and witnesses afraid of being retaliated against by the accused his associates, the state would be severely hampered in investigations involving those types of criminal activity in which witnesses would expect to be threatened and intimidated. Witnesses might not only fefuse to testify in open court but be reluctant to co-operate with law enforcement gelerally. wihess andlor her family might be endangered at different stages in criminal investigatiory often depending on the type of case and threat involved. Many of the prosecutions of organized crime figures and terrorists have to be put on indefinite hold because crucial witnesses are murdered or threatened or injured prior to testifying in court. Most of the endangered witnesses in those cases were inlormants who had fumed against the symdicates and were willing to testify against them. The safety of
Either the accused himself or other girng members often attempt to prevent the witness, usually an innocent victim or bystander, from testifying. They may
accomplish this either through direct, i[egal pressure which includes only slightly veiled threats or through the creatlon of an atmosphere of fear in gangdominated neighbourhood. hr the latter case, the potential wibress may refuse to
Reforms in the Criminal lustice
System
235
testify because one perceives oneself or the family to be threatened even though no direct threats were ever uttered.
In such situations, witness might be more willing to testify if he were guaranteed anonymity or some form of physical disguise. The prirnary constitutional obstacle to shielding witness's identity from the accused at trial is the right to fair and public trial interpreted. But In-Camera proceedings have been held to be constitutional (under Kartar Singh, etc.).the constitutional rights protect the accused by limiting the admission of hearsay evidence at trial and by allowing for extensive cross-examination. The latter rationale applies to the potential testimony of anonymous witnesses since non-disclosure of witness's identity inevitably limits the breadth of cross-examination, and therefore the accused's ability to test the witness's veracity adequately.
Within the last hvo decades the rather limited rights of victims and of witnesses in criminal proceedings generally have been challenged as too restrictive, particularly when being contrasted with the often broadly construed rights of defendants. The most dramatic protection of the victim's privacy interests grew out of the women's movement. The so-called rape shield rules which restricts the accused's right to cross-examine the victim in rape case about her sexual history inherently limits the accused's right to confront the witnesses against him.
"Clause 14 of the Bill contains provisions for protection of witnesses. Sub-clause (1) says that notwithstanding anything contained in the Code of Criminal Procedure, the proceedings under the Act may be held in carnera if the Special Court so desires. It may not be fair to ieave this discretion totally unregulated or unguided. It would be fair and proper to provide that the Special Court shall record its reasons for holding the trial ln camera. Sub-clause has accordingly been modified. Sub-clause (2) empowers the special court to take appropriate measures for keeping the identity and address of witness secret if it is satisfied that the life of witness in any proceedings before it is in danger. Of course, the court has to record the reasons for taking such measures. This power can be exercised either on the application made by the wibress or by the motu. Stb-clause (3) of clause 14 specifies some public prosecutor or of the measures contemplated by sub-clause (2). The measures specified at a place to be in sub-section (3) are (a) holding of decided by the special cour! (b) avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public; (c) issuing of any direction for securing that the identity and addresses of the witnesses are not disclosed and (d) passing orders to the effect that it is in the public interest that all or any of the proceedings pending before such court shall not be published in any manner. In para 5.15 of its Working Paper, the Law Commission had opined that while it may be necessary to protect the wilness by keeping his identity and address secret, the right of the accused to cross-examine such witness must also be protected at the same time. It was observed that several may
zJo
The Citizen and ludicial Reforms
methods by which effective cros$-examination could yet be undertaken without disclosirig the identity antl address of the wibress. Accordingly, it was suggested that paragraph (c) of sub-clause (3) of clause 14 may be substituted by tlre following:-
"(c) The making of necessary nftangemmts for securing that the identity and address of the witness is not disclosd nm during his cross-examinntion"
At the seminars, two conflicting viewpoints were projected. One
set
of
participants submitted that no effective cross-examination was possible unless the identity of the witness was known to the accused and his counsel and that therefore concealing the identity of the witness would really mean denying to the accused an effective opportunity to crossexamine the witness. The proponents of this view emphasized -the absolute necessity of affording to the accused reasonable opportunity to cross-examine the wihress. On the other hand, certain other participants stressed the necessity of concealing the identity of the witness from the accused and his counsel in cases where such course was necessary for protecting the life or safety of the wihress and his relatives. They also emphasized the practical difficulty in procuring witnesses in such matters and submitted that if person yet came forward as witness but apprehended danger to his life on that account, it was the duty of the court and the State to provide him protection. We have considered both the points of view. Sub-clause (3) is indeed illustrative of the provision contained in sub-clause (2). In other words, sub-clause (3) is not an independent provision but continuation and elaboration of sub-clause (2). This means that before taking any of the steps elaborated in sub-clause (3), the special court has to be satisfied that the life of particular witness is in danger and must also record reasons for formation of such satisfaction. The requirement of law that the court must be satisfied that the life of the witneis was in danger and the further requirement that the special court is bound to reCord its reasons Jor forming such satisfaction are adequate safeguards against abuse of the power conferred by sub-clause (2) upon the special iourt. Sub-clause (2) is based upon the doctrine of necessity, cruil necessity. It obviously takes note of the fact that the life of witnesses deposing against terrorists may be in danger in many cases and provides for such cases. Sub-clause (2) which in reality includes sub-clause (3) within its fold, is an exception rather than the rule. Since the power is given to the court, apprehension of its misuse carmot be lightly presumed. Indeed, so far as the right of cross-examination of the accused is concemed, it is undoubtedly very valuable and effective instrument enabling the accused to defend himself appropriately and effectively, but this right of the accused has to be balanced agairut the interest of the society and may have to be modified where the interest of society does call foi such modification. All this discussion only means that if ti-re court is satisfied that for the reasons mentioned inr the sub-clause, it is necessary to keep
Reforms in the Criminal lustice
System
237
the identity and address of the wihress secret, it may have to take appropriate measures and make necessary arrangements for ensuring both the right of cross-examination and the protection of the witness. In this behalf, it may be relevant to notice the judgment of the Supreme Court in Knrtar Singh, (1994) 3 SCC 569, at pages 688-689 sub-para 1l of the summary in para 368. We dre also of the opinion that the power of the court to take appropriate measures to permit cross-examination even while protecting the identity of the wittess must be deemed to be implicit in sub-clauses (2) and (3) as they are found in the Bill. It is not really necessary to amend any of the paragraphs in sub-clause (3) as proposed in para 5.15 of our Working Paper inasmuch as the Bill does not propose to take away the right of cross-examination. The suggestion for substitution of paragraph (c) in sub-section (3) made by the Law Commission in the said para is accordingly withdrawn keeping in view the opinions expressed in the seminars'" Perjury to be punished Speaking truth is moral, ethical and legal principle. Law expects every one to speak the truth. Then only justice can be done. One of the main reasons for the larger number of unsuccessful investigations, unsuccessful trials, poor convictions and low image of the entire criminil justice system is peoPle witnesses saying falsehood even under oath. It has become the rule. The result is in a large number of cases the witnesses commit perjury and make mockery of the entire system. The recent instances are whai happened in BMW case and jessica Lal case. There is neither fear of God nor that of the law. The law demands every one to speak the truth at every stage of the proceedings. Pleadings have to be verified as true both under the CPC and under the Cr PC. While in other countries one dare not commit perjury here in our permissive society perjury goes unpunished. Hence the need for shengthening the law of procedure and punishment for committing pe4ury. Law Reform, even to the extent of making criminal justice system effective, is vast subject. In this presentation only an attemPt has been made to refer to some of the aspects in broad terms, focusing little more attention on couple of aspects like protection of witnesses and burden of proof. The criminal law deals with changes in the society, which happens all the time and hence the changes in the law, procedure and practices also should be
dynamic.
jwtice to the victims and justice to the society. We have the society and the nation. If rights of individual and the rights to balance the present deteiioration is allowed to continue, very soon not ottly th9 rights of the individual but the collective rights of the individuals constihrting the society will also be seriously violated. Hence there is need for total revamping of the Crirninal fustice System without any further delay. This is the only way to save the system and the entire We have to ensure
State from total collapse.
(a&)
IMPACT OF JUDICIAL ACTTVISM ON PERSONAL LAWS*A CASE STUDY K.M.H. Rayappa-
Introduction Justice Punchi in Chand Dhawan v. rawaharlal Dhnwanl posed the question in the context of permanent alimony. rA/hether payrnent
of alimony is adinissible
wi,thout the relationship behveen the spouses being terminated? In the what probably the Hon,ble judgmenilo say was: 1"jh,*, could the matrimoniai court pass order for permanent alimony and _an maintenance ,rsrldrrre without wrrrlour grantng granting relief relet ln in matrimonial case? when When a" c.,,l"r court ies decree granting judicial separatidn or restitution of conjugal rights it order for allmonl and maintenance though [UtiJnsrrip l::"1",^. 1l il\: een the spouses is not terminated. Similarly, when it pisses decree t18-1 it does not terhinate the relationship as there was _l1.ttrFe,void, no relationship between the parties. yet, it has power to make an order for ment alimony and maintenance.2 Indian mairimoniar laws causes and reliefs have been derived from English Law, whether it is Hindu, and Muslim Law. TakeJor instance, after 19503 Er.,giJ ,l,"lt'1,ly great strides. Alimony and maintenan;;;;;;;;l Td" ,,:::"3]" .*j?-. ro.ren ancl education are no longer ancillary matters. Once atrimonial court is seized of matrimonia] cause, it continues to exercise risdiction on all matters even if no relief is granted in the matrimonial cause.
:::il":i.l:i.:l1
Dean, Faculty of Law, University Law 7993 Cr LJ 2930.
"Permanent maintenance and Alimony: When petition is matrimonial cause is dismissed "by Dr. paras Diwan, Journil of the tiraian t-aw Institute, vor. 37,199s April-June, p. 246.
Matrimonial Cause Act,
1950.
238
Impact of ludicial Actiaism on Personal
Laws-A
Case
Study
239
Criminal Procedure Code Right to Maintenance According to section 125(1) Cr PC the following is entitled to claim maintenance under such circumstances. The wife, who is unable to maintain herself, is entitled to claim maintenance. She may be of any age minor or major. The term "wife" includes woman who has been divorced by or has obtained divorce from her husband and has not remarried.l This extended definition of "wife" had been considered necessary in Muslim Law in view of the existence of some peculiar ruies permitting husband to divorce his wife at any time at his will. The inclusion of "divorced wife" in the definition of "wife" was intended to prevent the unscrupulous husband frustrating the legitimate maintenance-claim of their wives by just divorcing them under the abovesaid personal laws and was aimed at securing social justice to women belonging to proper classes.'
The position of divorced Muslim Women in India was thoroughly examined in the landmark judgment of the Supreme Court in Shaft Bano case3.It was deserved that section 125 of Cr PC was enacted in order to provide quick and summary remedy to a class of persons who were unable to maintain themselves. Under the Muslim personal law, the husband is bound to pay Mahr to the wife as mark of respect to her. Thus the law is that there is no conflict between the provisions of section 125 and those of the Musiim husband's obligation to provide maintenance for divorced wife in case she is unable to maintain herself. It is also important to maintain here that man may marry woman for love and he cannot divorce his wife.
The Supreme Court in Shah Bano Begum case has held that although the Muslim Law limits the husband's liability to provide for maintenance of the divorced wife to the period of iddat it does not conntenance the situation envisaged by section 125 of the Code of Criminal Procedure. The court held that it would be incorrect and turjust to extend the above principle of Muslim Law to cases in which the divorced wife is unable to maintain herself. The court therefore, came to the conclusion that if the divorced wife is able to maintain herself, the husband's liability ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourses to section 125 of the Cr PC. The religion professed by spouse or spouses has no relevance in the scheme of these provisions whether they are Hindus, Muslims, Christians or the Parsis. It is submitted that section 125 Cr PC is part of the Code of Criminal Procedure and not Civil Law, which defines and governs rights and obligations of the parties belonging to particular religion like the Hindu Adoption and maintenance Act, the Shariat, or the Parsi Matrimonial Act. 1.
Explanationby to sec. 125(1) Cr PC.
2.
"Right of maintenance to Indian Women" by Anjani Kant, Journal of the Indian
Law Institute, Vol. 38, 1996 July September, p. 392. Mohammed Ahmed Khnn v. Shah Bano Begum. AIR 1985 SC 945.
240
The Citizen and Judicial Reforms
In Deninl Latifi Anor v.
Union of lndial the husband was claiming exemption on the basis of section 127(3)(b) Cr PC on the ground that he had given to his wife the whole of the sum which, under the Muslim Law applicable to the parties, was payable on such divorrce while the woman contended that he had not paid the whole of the sum, he had paid only the mahr and iddat maintenance and had not provided the mata i.e., provision or maintenance referred to in the Holy Quran, Chapter II Sura 241. The Supreme Court after referring to the various text books on Muslim Law held that the divorced wife's right to maintenance ceased on expiratiorr of iddat periodbut the Supreme Court proceeded to observe that the General propositions reflected in these statements did not deal with the special situation where the divorced wife was unable to maintain herself. In such cases, it was stated that it would be not only incorrect but uniust too in those test books in which divorced wife is unable to maintain herself and opined that the application of those statements of law must be reshicted to that class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. The Supreme Court concluded that these suras leave no doubt that the Holy Quran imposes an obligation on the Muslim Husband to make provision for or to provide maintenance to the divorced wife. The Judicial enforceability of the Muslim divorced woman's right to maintenance tnder section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, L986 has been subjected to the condition of husband having sufficient means which, strictly speaking is contrary to the principles of Muslim Law as the liability to pay maintenance during the iddat period is unconditiona[ and cannot be circumscribed by the financial means of the husband. The purpose of the Act appears to be allow the muslim husband to retain his freedom by avoiding payment of maintenance to his erstwhile wife after divorce and the period oI lddat. careful reading of the provisions of the Act would indicate that divorced woman is entitled to reasonable and fair provisions for maintenance. It was stated that parliament secures to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word "provision" indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, clothes and other articles. The exr:ression "within" should be read as "during" "for" and this cannot be done b-ecause the words cannot be construed contrary to their meaning as the word "within" would mean that "on or before" not beyond. The expiration of ttre iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the magistrate as provided in section 3(3) but not where the Parliament has 1. The Law Report of India, 2001 Vol p. 36 (Justice Rajendra Babu has delivered the opinion of the court and other four of his brother judges, Pattanaik D.P. Mahapatra, Doriswamy Raju and Shivaraj V. Patil, JJ) concurred with him.
Impact of lttdicinl Actiuism on Personal
Laus-A
Case
Study
241
provided that reasonable and fair provision and maintenance is limited only for the period of iddat and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for second time.r While upholding the validity of the Act the Supreme Court has sum uP its conclusions:2
(1)
Muslim husband is liable to make reasonable provision for the future of the divorced wife which obviously includes her maintenance as well such as reasonable and fair provision extending beyond the iddat period in terms of section 3(1)(a) of the Act. (2) Liability of Muslim husband to his divorced wife arising out of section 3(1Xa) of the Act to pay maintenance is not confined to iddnt period.s
(3)
divorced Muslim woman who has not remarried who is not able to maintain herself after period of iddat can proceed as provided under section of the Act against her relaLives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim Law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the magistrate may direct the state Wakf Board established under the Act to pay such maintenance.
(a) The provision of the Act do not offend Articles 14, 15 and Constitution of India.
21
of the
Conclusion
The effect of various interpretations placed on suras 241 and 242 of Chapter II of the Holy Quaran has been referred to ln Shah Bano's case vividly enunciated what the present judicial activism would be. It made distinction befween the provisions to be made and maintenance to be paid. It was notified that the maintenance is payable only upto the stage of idtlnt and this provision is applicable in case of normal circumstances, while in case of divorced Muslim woman who is unable to maintain herself she is entitled to get mata.
The Muslim law should be amended and incorporate the provision relating to the divorced Muslim woman's mata after the period of iddat, ther only the injustice done to the divorced Muslim woman by her former husband will create new rule the active Indian be
of iaw to protect the interest of divorced, destitute Indian Women irrespective of the religion.
(,6&) 1. Ibid.,
p.52.
2. lbicl.,
p.57.
Ibitl.
Part Vl
juucrAL ACCOUNTABILITY AND CoNTEMPT
|unlsDrcrroN
CONTEMPT ]URISDICTION-ITS PARAMETERS Mohd. Sardar Ali Khan* The object of this paper is to discuss the concept of contempt jurisdiction and the parameters within which such jurisdiction has to be exercised. It was Lord Diplock who ip the case of Attorney General v. Times Newspapers Ltd., (1924) AC 273, observed a$ follows: "The proaision of
the administration of justice by courts of law mai4tenance of public confdmce in it are essmtial if citizens are to liae together in peaceful asnciation with one another. 'Contempt of Court, is generic term desciptioe of conduct in relation to particular proceedings in court of law which tends to undermine that system or to inhibit citizms from aoailing themseloes of it for the settlement of their disputes. Contempt of court may thus take many forms". system
fur
Again, in the same case Lord Simon is credited to have expressed his opinion that the Law of Contempt is meant to ensure the effective administration of justice and it is the law which vindicates the public interest in due administration of justice. It was also observed that the law does not exist to protect the personal dignity of the judiciary nor does it exist to protect the private rights of parties or litigants. Indeed, in sornewhat ancient case in Johnson v. Grnnt,7923 SC 789 at790, Lord Clyde observed thus: "The phrase'Contempt of Court' iloes not in the least destibe the true nnture of the class of offence with which we are htre concuned. The offence consists in interfeing with the administration of the law; in impeding and peroerting the course of justice. It is not the dignity of the court which is offended petty and mislmding aiew of the issues inoolaed it is the fundamental supremaiy of the law which is challmged"
In comparably recent times in celebrated jud gment in Monis Ofice,7970 (2) QB 114,lord Deruring MR observed as follows:
v . The Croum
Judge, High Court of Andhra Pradesh, Honorary Dean, Faculty of Law, Osmania University, Hyderabad (Andhra Pradesh;. 245
lhe Citizen and ludic zl Reforms under Indian Polity
"The phrase 'Contempt in the fnce of the court' has a quaint old fashioned ring about it, but the importance of it is thus: of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deJlected or interfered with. Those who strike at it strike at the aery foundations of our society. To maintain Inw artd order, the judges haae and must hnoe power at once to denl with those who offend against it. It is great power pozoer instantly to imprison power"
person without a
trial
but it is a necessary
The Law of Contempt, as it developed in England, and has culminated in the shape of an Act, known as the 'Contempt of Courts Act, 1981' was evolved over number of years from the principle of common law. In terms of legal history it was named as contemptus curiae" and it continued to play key role in protecting the administration of justice and making it more effective. With the passage of time the concept of law also has undergone a change and it had demonstrated remarkable flexibility to adapt itself in accordance with the changing conditions. Its overall object of the Law of Contempt has always been
to maintain the 'supremacy of the law'. Moskovitz in his classical work
'Contempt of injunctions, civil and criminal' has described the contempt as the proteus of the legal world assuming an almost infinite diversity of form and rising to the occasion to meet the diverse forms of challenges which aimed to interfere with the course of justice. Hence, it is clear that the concept of Contempt of Court and the way it has been made punishable constitutes corner stone tf the administration of justice. As pointing out earlier, there is remarkable unanimity of judicial opinion that in matter of contempt it is not the dignity of the court which is involved but the overall juristic question is one relating to the fundamental supremacy of the law. It is the concept of supremacy of law which is challenged in case of contempt, civil or criminal, by person and it may very well be true that shrewd persuasive lawyer may hy to ignite the eye of the Judge by levelling the charge that it is the personality of the Judge which is held to be in contempt and therefore, the contemnor must be punished in accordance with law. Such course of action runs contrary to the very grain of the law of contempt as it has been observed by F.A. Mann in (1979) 95 LQR 348 that, however, uncertain its definition and scope may be in some respects Contempt of Court is undoubtedly one of the great contributiors the common law has made to the civilised behaviour of large part of the world, or to put more bluntly in the words of Chief Justice Mc Kean of the United States, expressed as far back as 1978, that: "The question seems to resolae itself into this, whether you shall bmd to the Iaw, or the law shall bend to you, it is our duty to determine that the former shall be the case"
Since the law of contempt is creahlre of common law, it is regarded as an inherent power ef the court to punish for the contempts committed of the orders passed by the court. ln most of the comrnonwealth jurisdictions the concept of the law is preserved as principle of corlmon law. For instance, in Canadiand New Zealand contempt is the only crime that can be prosecuted at common law.
Contempt
lurisdiction-lts
Parameters
247
However, in England where the contempt has originated it has been given the form of statute and parts of such criminal contempt dealing with publications interfering with the course of justice and in parlicular legal proceedings are now controlled by the Contempt of Court Act, 1981.
ln Barada Knnta Registrar, Orissa High Court, AIR 1974 SC 710 the broad principles which govem the judicious exercise of the jurisdiction were laid down by Iftishna lyer,
in the following words:
"The cornerstone of the contempt law is the accommodation of two constitutional aalues the right to free speech and the right to independent
justice. The ignition of contempt action should be substnntinl and malafude interference with fearless judicial action, not fair comment or triainl reflections on the judicial process and personnel"
Article 215 of the Constitution of lndia provides that every High Court shall be court of record and shall have all the powers of such court including the power to punish for contempt of itself. Under Article 129 the Supreme Court is constituted as court of record and shall have all the powers of such court including the power to punish for contempt of itself. In the back-ground of the foregoing, it is now proposed to make critical study of the provisions of the Contempt of Courts Act, 7971. (Act 70 ot 7971). This Act attempts codification of law of contemPt existing in India and which were incorporates the concepts of the principles of common obtainable in England. The preamble of the Act itself says that it has been promulgated with view to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto. The scheme of the Act is that the term "Contempt of Court" has been divided into two pafts, aiz., one dealing with the civil contempt and the other one with the criminal contempt. Under section 2, 'Civil Contempt' is defined as wiltt:l, disobedience of any judgment, decree, directiorL order, writ or other process 'Criminal breach of an undertaking given to court. of court or Contempt' on the other hand mearu the publication (whether by words, sPoken or written, or by signs or by visible representatioru or otherwise) of any matter or doing of any other act whatsoever which scandalises or tends to lower the authority of any court or prejudices or interferes with the due course of any judicial proceeding or obstructs the administration of justice in any manner. Sections 3, and are concemed with the question of defences that may be available to person who is charged with contempt. For instance, under section it is provided that innocent publication and distribution of matter does not come within the purview of contempt. Similarly fair and accurate report of judicial proceedings or fair criticism of judicial act is not a contempt. Under section of the Act, publication of information relating to proceedings in chambers or in camera except in certain cases do not come within the purview of contempt. A mention of the above is made only to indicate that these defences are available to person as a matter of statutory right for the alleged contempt committed by him but under section any other defence which could be valid defence in any proceedings for contempt of court is not excluded and such
248
The Citizen and
ludicial Reforms under lndian Polity
will
also be available to person who is charged with contempt. The jurisdiction of the courts in krdia is confined under section of the said Act in so far as it provides that nothing contained in the Act shall be construed as defence
implying that any disobedience, breach or publication or other act
is
punishable as contempt of court which would not be punishable under the Act. It, therefore, means that an act to fall within the purview of contempt must be one which becomes the contempt by reason of the provisions of Act. Any other Act which does not come within this category will not be construed as contempt of the court. The second aspect of the jurisdiction is that the High Court, being the court of record under Article 215 of the Constifution, as stated above, has the jurisdiction, power and authority to punish in respect of contempt of courts subordinate to it as it has the jurisdiction to punish contempts of itself. The extra territorial effect of the jurisdiction is provided under section 11 of the Act wherein the High Court has been empowered to exercise its jurisdiction to try contempt of itself or any court subordinate to it, whether the contempt is alleged to have been committed within or outsidd the iocal limits of its jurisdiction and whether the person alleged to be guilty of contempt is within or or,rtside such limits. deeper study of these provisions of the Act clearly leads to the conclusion that there are certain basic features which are peculiar to the law of contempt. As for instance, the power of High Court to punish person for the alleged contempt ,which may be committed outside the local limits of its jurisdiction when the person who is guilty of contempt also happens to be residing outside the territorial jurisdiction of the court. It may also be mentioned that there is procedure laid down in section 14 of the Act wherein the Supreme Court or the High Court has been empowered to punish persons who commit contempt in the face of the Supreme Court or the High Court, as the case may be. ln so far as the criminal contempt is concgrned, the Supreme Court or the High section.15 ol the Cor.rrt, is ernpowered to take action on motion made by the Advocate-General or any other peqson with the consent in writing of the Advocate-General. ln the case of any criminal contempt of subordinate court the High Court may take action on reference made to it by the subordinate court or on motion made by the Advocate-General or in relation to a Union territory by such Law Officer as the Central Government may by in the Official Gazette specify. The Supreme Court has been empowered to exercise the powers to take action in case of a contempt on motion made by the Attorney-General or the Solicitor-General. It is significant to note that Judge or Magistrate or any other person acting judicially may also commit contempt of his own court as any other individual under the provisions of the Act. Therefore, behavionr unbecoming of Judge or Magistrate or person acting judicially may constitute an act of contempt on the part of such Judge or Magistrate, as the case may be, of the court in which he is sitting. Section 19 of the Act provides for an appeal from decision of the single Judge to Bench of not less than two Judges and from the decision of the Bench to the Supreme Court. The appellate court has the power under sub-section (2) of section 19 to order that the execution of the punishment or order appealed agairut be suspended or if the appellant is in con?inement he
Contempt
risdi
ctiott-lts
Parameters
249
exercise of contemPt of further jurisdiction is provided under section 20 as it prol'ides that no court shall instigate any proceedings for contempt either on its own motion or otherwise the date on which the contempt is of period of one year after the
may be released on bail.
alleged to have been commifted.
The above discussion of the general scheme of the Act is made with view to indicate the parameters of the jurisdiction of the courts in India in matters of contempt, civil or criminal, as the case may be. Parameters
It is submitted that the jurisdiction of the court in matters of contempt, civil or criminal, is one which has to be exercised with great care and caution. The court will have to, on the one hand, ensure that the supremacy of law is established and is not challenged by anyone and, on the other hand, it also has to take pragmatic view of particular situation keeping in view the facts that may be existing in particular case to determine whether achrally contempt has been committed by person who is charged with an offence of this nature. It was again Lord Denning who expressed l$:opinion that he will never use this jurisdiction as means to uphold dignity of the judiciary which must rest on surer foundation and it was Stephenson Ll in Bnlogh v. Crou,tt Court at St. Albnns, 1975 QB 73 at 75 who admirably summed up the contempt power being salutary as well as dangerous in the following words:
"lt is salutary
it
giaes those who administer justice the protection necessary to secure justice fur the public, dnngerous because it depriaes citizen of the protection of safeguards considered generally necessary to secure jttstice for him" because
\A/hat do these well-settled judicial dictums point at? The essential feature of the preponderance of the judicial opinion on the subject to the mind of the author of this paper is an inherent signal to the Judges that they should guard against the over-use of their contempt powers in order to ensure that the process
which is to prevent interference with the administration of justice does not degenerate into an oppressive or vindictive abuse of power by the courts. \Atrhat has come to be known as'Parashuram's case' (i.e. Parashurnm Deterant Shnmdasant v. King Emperor, 7945 AC 264 Lord Goddard C| had expressed the opinion that
the contempt power is power which court must, of necessity, possess; its usefulness depends upon the wisdom and restraint with which it is used. It will be no exaggeration to say that perhaps in no other field of jurisdiction the court is required to rise above petty considerations or prestige and power and look straight into the face of the majesty of law as in the case of contempt jurisdiction. It has to exercise judicial restraint tempered with the fact that the orders of the corut are bound to be obeyed by those who come within the purview of it. Indeed, otherwise, it will result in the denegration of the very principles of sanction provided behind the law as propounded by Prof. Austin in his Theory of Jurisprudence. The need of such judicious mixture of forthrightness and caution is all the more necessary in the growing complexity of the orders which the courts are called upon to pass and the profuseness of the legislation which
250
The Citizen and
lttdicial Reforms under lndian potity
is invading every walk of life of the citizens of India to-day. In some cases at least it has become comnon feature of the courts passing the order and the aggrieved party trying to hedge behind some technical ground to disobey the orders of the court. The other essential parameter of the iurisdiction of the contempt is the fundamental principle that the maxim "Nemo judex in proprin srn cnuse" which means that no one should be Judge his cause, does not apply to the exercise of jurisdiction of thd contemlpt of courts. More often than not, it is the very Judge whose orders are supposed to have been flouted who has to sit in judgment and give finding on the basis of ..the evidence on record whether contempt has been committed. The personalfeelings of prestige and power will have to be purged when he decide the matter of contempt for the overall object is the enforcement of the pdnciple of supremacy of law. It is for
this purpose that the parameters of the jurisdiction in respect of matters of contempt, civil and criminal, may require Judge to exercise the power so vested in him in wise and judicious manner. In my opinion the above principles of law apply with more viqour in case of exercise of appellate jurisdiction under section 19 of the Act. It is submitted th4t matters of an interlocutory nature passed after due consideration by qlingle for instance with regard to the presence of person who is allegdd to have committed contempt, shall not ordinarily be interfered with at the hands of the appellate court unless there is compelling reason to do so. The reason for the above observation is that otherwise it is bound to inculcate the feeling in the minds of persons who are held up for contempt before single Judge that the interlocutory applications either for presence of the contemner or for dispensing with the presence of the person concerned are likeiy to be upset by the appellate court and the sanctity of the order made by Judge sitting single is bound to be watered down by the feeling that the last word does not rest with him even in the matter of interlocutory It is not for moment suggested that the power of the appellate court should be whittled down in this regard but it is suggested that the appellate power with regard to interlocutory matters may be used sparingly. It is only when there is patent failure of justice or when there is an error apparent on the face of record which does not cail for such an interim order that it may be interfered with by the appellate ctrurt. The power of the High Court under section 11 of the Act) as indicated above, to try offences committed even outside the jurisdiction is another parameter of the law of contempt in India. The exercise of this power is not confined in relation to the teritories in which the High Court is exercising its jurisdiction. It is indeed jurisdiction of ektra territoriil nature because it is.not necessary that the person alleged to have cornmitted contempt may not be within the local limits of the jurisdiction of the High Court. A notable feature of the Act is contained in section 16 that Judge, Magistrate or other person acting judicially may also be iiable for contempt of his own court or of any other court by his inappropriate behaviour. The idea behind this principle seems to be that what is punishable is the contempt of the tourt and the personality of the Judge in such a case does not play any part whatsoever. In fact, the dignitary holding high judicial position is treated on par with an ordinary person who may be guilty of contempt.
Contenryt
urisdiction-lts Parameters
Principles of Strict LiabilitY
25r
The principle of 'strict liability' as adopted under the common law has been applied to the law of Contempt. It may be mentioned herein that in R' v' Cray, iobO (2) QB 36, it was observed by Lord Russell that any act done or any article published which is calculated to bring court into contemPt or to lower the auti-rority of the court constitgtes 'contempt of court'. The point was further elucidated fhut ur-,y act done or writing published deliberately to obstruct or interfere with the due course of iustice or the lawful plocess of the court is contempt of court. This principle of strict liability has been enunciated in the Act of 1981 in England whi-h provides that any writing, speech, broadcast or other is addressed to the public at large or communication in whatever form any section of the public may be treated as contempt regardless of intent if .it is deiigrred to create substantial risk that the course of justice in the proceedings in question will be seriously hampered or prejudiced. This principle of strict liability as enunciated in Contempt of Courts Act of 1981 in England has been applied with full force in India. In Brahma Prakash Sharmn v' State of Uttar pidesh, AIR 1954 SC 10. The Supreme Court was dealing with an offending publication which was likely to interfere with the administration of justice and it was held that such publication which involves substantial risk of impeding the course of justice will amount to contemPt. In another case Hira ltl u. State o7 Utto, Pradesh, AIR 1954 SC 743, the Supreme Court considered the contents of an article making denunciatory attack on the Judges of the court as well as the State administration. On fair reading of the article and its contents, it was observed that the object of writing the article was to affect the minds of the The Judges and to deflect them from the strict performance of their duties' offending passage was held to have been published with view to hinder and obstruct the due administration of iustice and come within the fottr-comers of the definition of 'contempt of court'. Thus, it may be seen that yet another parameter of the jurisdiction of the contempt may be considered to be the io-^ot law principle of strict liability which has been held to be applicable in such cases. Ii P.C. Sen (in rd, AIR 1972 SC 1821 while dealing with speech made by the Chief Minister of the State it was observed that any act done or writing published which is calculated to bring court or ludge into contempt to lowei his authority or to interfere with due course of justice or the lawful process of court is contempt of court. Contempt by speech or writing may be scandalising the court itself or by abusing parties to actions or by prejudicing mankind in favour or against party before the cause is heard. It is submitted on the basis of the above judicial dictum that the significant parameter of the iurisdiction of the court in dealing with contempt cases is the above principle of strict liability enunciated in those cases. To sum up on this aspect of the problem, it can be said that the principles to govem the eiercise of contempt jurisdiction require the Judge to rise above the noimal considerations of prestige and power of the court and to take an objective view of the act perpetrated by the contemnor as to whether it amounts to an interference in the administration of justice or cagses any obstruction in the course of justice.
t52
The Citizen and
ludicial R{orms under Indinn polity
The supreme Court in the case of perspectiae publication v. stnte of Maharashtra, AIR i971 sc 221 dealt with the question of committals fo'r contempt for scandalising the court. while reviewing the law as it exists on the subject, it was held that it is open to anyone to express, fair, reasonable and legitimate criticism of- any- act or conduct of Judge in his ludicial capacity. In fact,.the view taken by the supreme Court *"r-"*prerr"d in the iollowing words:
"Justice is not cloistered airtue and she must be allowed to sffir the scrutiny and respectfuI eum though outspoken comments of ordinary men.,'
The questiory therefore, to be determined in all such cases would be whether the impugned publication is .a defamatory attack on the Judge or whether it is calculated to interfere with t[re due couise of justice or ttre pioper administration of law by the court. It is only when it falG in the category of interference with due course of justice it will constitute contempt of couris. it is, therefore, evident that the parameters of iurisdiction of the couit on the issue of fair criticism of the judgments of the court coincides with the concept that everyone is free to express fair, reasonable and legitimate criticism of any act or conduct of Judge in his judicial capacity and to make a proper fuit "t comment on the decision given by hirn. In fact, such fair ind reasonable criticism must be encouraged because it would be in the interests of the iudiciarv and the public at large. An academic criticism of judgment *"y ,"*u ,, corrective to the judge in question enabling even him to".r"r, see his own shortcomings and may even rectify his approach to the problems in future. It must be stated that the opinion expressed by the supreme court in this regard is thoroughly on consonance with v. Gray, (1990) eS SO which has tak-en the view that any act done or published calculated to bring court into contempt or lower his authority is a contempt of court and fiir reasonable criticism of the judgment rendered by any court carmot be termed as contempt of court.
The Freeilom of Press v.
Tial by Nezas papers
The concept of freedom of press constitutes comer stone of the Indian constitution. lt is through this mass media that the general members of the
public educate themselves and get the information Jbout what is going on around them' It is the press agairrr that the multitude of the peoplJ get their news about how justice is being admlnistered in the courts. rne i.ame.Jof our constitution have jealously guarded the freedom of the press in the counhy and have ensured that there should be n0 stifling of this right of the press tt express freely about the situation existing in regard to the administration of
justice or to report the proceedings in court of law. However, at the same time there has been nagging fear in the minds of the iudiciary that we cannot countenance what has been termed as ,,Trial by news p^p"i"', and exposition
of law by publication of news paper articles when matters are "subiudice,, in courts. In celebrated judgment 1n Attornev General v. Times News papers Ltd.. (1973) All ER 815, which has otherwise come to be known as the,Thnlidomide case', the law on this aspect has been enunciated in detailed manner.
Contempt
lurisdiction-lts
Patameters
Thalidomide is supposed to be drug which causes deformity in children.in utero and serreral ihild.en were bom with gross deformities as result of the use of this drug. Actions were initiated against the comPany who were the manufacturers Jf thit dt.tg and the matter was settled by payment of-a huge in compensation. ln some cases writs were issued after leave was obtained and otheis no writs were issued at all. Subsequently there were negotiations between the company and those affected and it was mooted to set up a charitable trust fund foi the benefit of those who were afflicted by the drug. During the pendency of the negotiations, sunday Times published an article under the thaiidomide Children". 'A cause for National Shame"' Drawing i,eading ''Our the attlntion of the plight of the children who have been afflicted by the Thalidomide drugs, complaint was lodged by the company t9 tne eJt9t1e1 General stating tfJat the artiile was in cont'empt of court and has been published during t1e peridency of the case in the court. The editor of the paper justified the article*and'sent it to the Attomey-General claiming that what has been stated there is factually correct. Nevertheless an injunction was granted by the Division Court of the Queens Bench Division restraining publication on the sround that it constituted contempt of court. Following the debate in Parliament in England national campaign was lodged in the press bringing Pressure on the co;pany to make better offer for the children and their parents. The matter was takin io the Court of Appeal and Lord Deruring, who delivered _the is that when litigation is pending ludgment, observed that the porltior, in law ard"happens to be actively iniuit before the court no one shall comment on it in such way that there may be real and substantial danger or prejudice to the trial of the"actiory by influencing the Judge, the jurors or the witnesses or even by prejudicing mankind in general against party to the causes' Then he went on ,,We must not allow 'trial by newspapet' or trial by television or trial io observe, bv anv medium other than the courts of law". The court of appeal further held that in the instant case before them the matter has been pending for L2 long years and no settlement was reached and in such a case the law does authorise ih" .ru-, papers to make their comments so long as their facts are correct and their exprlssion is fair. It further observed that it is only active litigation which is protected by the law of contempt, not the absence of it. The court of appeal thirs discharged the injunction granted by the Divisional Court on the ground that the artic-ie contained comments which the authors honestly believed to be true on matters of outstanding public interest and did not prejudice pending litigation since the litigation had been dormant for several years and no active steis had been taken to settle the matter. On an appeal by the Attomey-General, ho-errer, the House of Lords reversed the judgment of the Court of Appeal and directed the Divisional Court to glant an injunction lestraining Sunday Times from publishing any matter prejudicing the issues in action pending before the courti. It *u, li"ld Ly House of Lords "It was contempt of court to publish an article expressing an opinion on the merits of specific issue which was subjudice beiore court". It was also held that the issue before the court was not iormant since active negotiations for settlement had been going on all the time. Lord Diplock in his opinion in the House of Lords held that once the
The Citizen and
ludicial Reforms under Indian politv
dispute has been submitted to court of law they should be able to rery on there being no usurpation by any other person of the function of that court to decide it
accordrng to. law. The injunction thus granted by the Divisional Court was restored by the House of Lords and the'sunday ti-er took the matter to the European Court of Human Right areging violation of Articre 10 of the Eu.opean of Hr-rman Rights which guir*t"", freedom of expression u.,i th" !o1vent1o1 right to hold opinions and to receivl and impart information. The court oi European.Human Rights in unanimous decision held that one p"rp;;iih; contempt laws is to maintain the authority and impartiality of th; judiciary. But by_a- majority opinion it was ruled that the thatidomiae dilaster was maiter of public concem and the mere fact that litigation was in progress did not alter the right and indeed responsibility of the mass media to iipart information of public interest' The public had right to be properly informed which could onry be denied them if it appeared abiolutely .".Li" tt"t ,r," resented threat to judicial authority. Finaily the judgment ".tu"-*""iJi""i wus i^ farroui oi the publication of the articre in sunaay Times on tie ground that it was tone and presented both sides of the case fairlliand did;;p;i; i?9:t3t" judicial authority of the courts to decide the matter. The above said decision has been quoted and commented upon in extension for the reason that it lays down the parameters of the jurisdiction of the courts while dealing with tr,. i,ruriio., of reports and comments in the mass media about the matters which are ,,subjudice" before court. The test as laid down in the above cases, therefore, seems to be_ that matters of public interest may be commented upon proviied the narration of the facts is correct and nothing is said which is stat"a t'o i"rd" th; courts of justice or the trial of the case in the court which is hearing td ;;;;. An injunction in such matters can be granted only when it i! abs;lutely necessary to safeguard the integrity of the judiciary and to ensure the supremacy of law.
Another lspect of the problem connected with the above is that in India -, the question whether
the ]oumarists must disclose their source of information has been matter of some estrangement between the courts and the journalists. There is no enactment in force -protecti"g the joumalists rro* ai.i,rrg.rj *,e sources of their information in law courts ind the position of the law i"i" to be tt*t if the Judge considers that disclosure is nece^ssary for doing justice in the matter he should be free to insist upon such disclosures by the j"oumalist. But the Press Council of India has recommended that no court may require person p".son be suilty of contempt of court ri. ."ruli"!io olsclose the source of information unless the court is satisfied that disclosui is interest of justice or national security or for the prevention of roer or cnme. lt remains to be seen how this ,impasse, is resoived in case dicial opinion is called for in matter ariCing in fufure.
::ji::t::::::-1"19 iiy
f.
:i? (")
jurisdiction is to be exercised with utmost care and be justified in exercising this jurisdiction to upr,oiJ :,1::3"^::ll diCnity of the court -lll1.":. or the personal presrige ised only to uphold the digniry and tt ,uir"-u.y "Ftn";irJ!"-u"i?;#lj; of tu*. ..
3u
Contempt
urisdiction-lts Parameters
255
(b) The jurisdiction for punishing the offender for contemPt of court must be exercised as complementary to the administration of justice with view to provide the necessary sanction behind the orders of the court.
(c) Public criticism of the judgment cannot be stifled so long as
it is fair,
reasonable and legitimate. Similarly the conduct of Judge in his judicial capacity can also be subject of fair and proper comment. This is amply born out by the words of the Supreme Court in Perspectiae Publications v. State of Maharashtra, AIR 1971 SC 221. "Justice is not cloistered virtue and she must be allowed to suffer the scrutiny and respectfui even though outspoken comments of ordinary men.
(d) Since the jurisdiction is exercised in certain cases contrary to the principle that no one should be judge in his own case "Nemo iudex in propria sua atuse".lt is all the more necessary that the Judges must be more careful in avoiding any personal feelings in the exercise of the jurisdiction.
liability enunciated in the several decisions of the Supreme Court and to be applied only to cases which involve grave questions of administration of justice and supremacy of law and not to all other cases which (e) The principle of strict
may come up before the courts.
(f) The principle of the freedom of the press will have to be reconciled with the idea that "there should be no trial by news papers'/ of particular cause. The courts must try to draw clear and perceptive parameters for the exercise of the iurisdiction in such cases. (g) hr matters of public concern, accurate and factual reporting of the cases
which may be "subjudice" may not fall within the four-comers of the law of contempt. Such an attitude will help in creating an informed public opinion in the country about the matters pending in the courts. But it must be emphasized that the reporting of such matters must stand the objective test of being fair, accurate and precise and not aimed at the denigration of the judicial process of the court.
(rg&)
CONTEMPT OF COURT AND ACCOUNTABILITY OF TUDICIARY Anil Diwan* Over fifty years of the working of the Constitution has brought about radical change in our democratic institutipns. One of the most visible changes is vast acclrrnrllation of powers in the higher judiciary. These powers are on occasion quasi-legislative or administrative. Judicial Review has immeasurably enlarged the powers of the higher judiciary. The measure is only the Judge's sense of self-restraint.
Such concentration of power in the judiciary is unique and unrivalled in any democratic country govemed by the [{ule of Law. But how is this awesome power disciplined? If abused it may pose
threat
to the 'Rule of Law' itself. The Review Commission headed by former Chief Justice Venkatachaliah states in consultation paper that of late there is public concern over jndges behaving in an un-judge like manner and such conduct calls for disciplinary system. Recently, the Chief Justice of India as reported in the national dailies "a good majority of jttdges in the country are honest but there is
which is corrupt and sltould
be
minority
identified and dismissed from seroice . . and
judiciary would not tolerate corruption in its ranks.
while in the
of lower courts nction against corntpt judges was possible . . it wns dfficult in the case of higher judicinry since impeachment wns the only recourse in law." Francis Bacon, Lord Chancellor of England when accused of bribery, defended himself by saying that "his offences were the offences of the time,,. We are all aware of the vices and offences of our times.
Senior Advocate, Supreme Court. The text published in Indian Express.
is
based
on an
case
article
Contempt of Court and Accountability of
Judiciary
257
Lord Devlin speaking of the English judge observed that "judges are not now, neither have been in the past much better or much worse than other public servants" and that "integrity comes haltingly into public life and that without watchfulness it may slip away". How does citizen who is watchful make a complaint against judge who is dishonest? Is he liable for contempt even if, the allegations are true? Is there any mechanism by which a credible and responsible complaint can be examined?
As the 1aw of contempt stands todap vigorous and robust criticism of judgment is permitted but attributing bias, motives or corruption to judge. amounts to contempt of court. Truth or justification is no answer to charge of contempt. The reason given is that if evidence was to be allowed to prove the truth, iiwould expose the judge to allegations from disappointed litigants and the public. The trial would itself damage the judge and the judiciary' An example of robust criticism in England arose from the judgment in the famous Spycatcher Case.
The British Govemment moved the court to stop publication of book by Peter Wright member of the British Secret Service' The Court of Appeal granted an injunction. The House of Lords by majority upheld and enlarged the ban. The "London Times" came out with blistering editorial. It said "Yesterday moming the law Iooked simply to be an ass. Those who regretted this fact were But waiting with quiet confidence for the Law Lords to do something about it
yesterday afternoon the law was still an ass. In the hands of Lords Templeman, Ackner and Brandon (the majority who ruled for the gag order it had become unpredictable and wild seemingly responsive only to autocratic whims". The "Daiiy Mirror" came out with front page caption "YOU FOOLS" and published the photographs of Lords Templeman, Ackner and Brandon upside down. American judges have been haditionally very forthright and unsparing of their colleagues. justice Rehnquist of the US Supreme Court (later Chief Justice) in one oI his dissents described the majority reasoning as "reminiscent not of jurists such as Hale Holmes and Hughes but of escape artists such as Houdini (the conjurer)". Supreme Court Justice Jackson described his colleague Justice Black as "stealthy assassin" whose disregard of judicial proprieties threatened to bring the court into disrepute. AI1 over the world there is movement towards more accountable judiciary and wider scope for criticism of the judiciary. The Commonwealth Law Association have framed "the Latimer House" guidelines. They visualise Code of Judicial Ethics. The American Bar Association Code of Conduct for the Judiciary is widely accepted. The Phillimore Committee in England has recommended truth as defense to contempt if it is for the public benefit. Unlike the iaw of contempt, the law of defamation always permitted the defence of iustification or truth. But if truth was not established the defendant would be liable. In the USA, however public men on public issues could be
The Citizen and ltrdicinl Reforms
criticised. The media or citizen would not be liable even if the allegations were not true provided the publisher acted bona fide and not recklessly and relied on responsible sources. The above defence is now available in India in defamation cases as our Supreme Court has adopted the enlarged American dgjence. This gives great freedom to the fnedia and the public to iriticize public officials and politicians. But what about judges? Barring the impracticil and falled" impeachment process there is no avenue even for legitimate criticism against dishonest Judge. publication which can be justified cannot be contrary to the motto 'Truth alone triumphs' (Satynmeaa /aynfe) which adoms the Supreme Court. Truth makes dishofiest judge contemptible but ought not to bring the court into contempt.
In
case involving Chief Justice Veeraswamy of the Madras High Court the Supreme Court has directed that no criminal case for corruption should be registered and no sanction-to prosecute High Court or Supreme Court Judge be given without the consent of the Chief Justice of Lrdia.
This judgment enables the Chief Justice of India to activate investigation by the appropriate authority when he is satished prima facie for its need.
To meet the "felt necessities,, of the times new Court framed guidelines are essential.
Fair comment and justification as applicable to the law of defamation needs to be woven into the conternpt jurisdiction. Properly structured complaints should be entertained by the Apex judiciary without fear of contempt proceedings or defamation. Confidential non-participatory procedures will not command credibilify. Justice Shetty in the Veeraswami case observed: "We must neaer forget that this court is not murt of limited jurisdiction of only dispute settling. Almost from the beginning, this court has been lawmaker... Indeed the courts' role today is much more. lt is expanding beyond dispute settling and inter-stitial laro.mnking. It is problem solaer in nebulous areas. ln this use, we unsider it no fiere opportunity, it is duty..."
The law of contempt is a nebulous area and the problem needs to be urgently addressed. The damage caused by dishonest judge should not go unrepaired.
If
credible mechanism is put in place quickly and firmly it will greatly disarm the growing perception of an unaccountable judiciary.
o5&)
IUDICIAL ACCOUNTABILITY-REMOVAL TUDGES
AND CONTEMPT OF
OF
COURT
Prashant Bhushan* The failure of the motion for removal against Justice V. Ramaswami of the Supreme Court showed the practical un-workability of the system created by the Conshtution as the only method for dealing with judicial misconduct. Here was a case of proven misconduct proven by Committee of three Judges appointed r-rnder the Judges Enquiry Act, yet the motion for removal failed because of political decision of the Congress Party and the issuance of whip to its members
asking them to abstain from voting. The system is impracticable and unworkable because in order for the motion to succeed, the following steps have to be successfully completed:
(a) More than
of the Lok Sabha or 50 members of the Rajya motion containing the charges against the Judge;
100 members
Sabha have to sign
(b) The Speaker of the Lok Sabha or the Chairman of the Rajya Sabha, as the case may be, has to admit it and appoint an Enquiry Committee under the fudges Enquiry Ac! (c) The Enquiry Committee has to find the Judge guilty of misconduct and recommend his removal; and
(d) The motion has to be then voted upon and passed by
majority of 2/3 of the members present and voting in each House of Parliament and an absolute majority of the total membership of each House.
In the first place, it is very difficult for any private citizen or Member of Parliament to collect evidence of misconduct or malfeasance against a sitting Judge without having statutory powers of investigation. Secondly, even if some one some how is able to get some evidence, for him to get all the requisite number of MPs to sign the motion, he needs to publicise the charges to make them known to the MPs. This process would itself constitute contempt of court Advocate, Supreme Court. 759
The Citizen and
ludicial Reforms
under the contempt of court Act as presently interpreted since imputation of misconduct or malfeasance against judge has been held to scandalise the court and thus constitute criminal contempt. Thereafter, even if one crosses this stage and succeeds in getting requisite number of Mps to sign the motiory it has to be admitted by the speaker or Chairman and the Enquiry Committee constituted under the Judges Enquiry Act has to hold bf the Judge and find him guilty. However, even thereafter to secure the removal of the lud]ge the parliament molion must be passed in both the Houses of with the reJuisite majority. This can be fmshated by any major party voting against the motion or even abstaining from voting as happen€d in lustice V. Rnmaswami,s case, for political reasolls.
It is not, surprising, therefore, that judges of the superior Judiciary have become totally unaccountable having realiied that they cannot be held to account. This lack of accountability brdeds abuse of power, arrogance and corruption and this is precisely what has happened to the higher ;udiciary in this country, forcing no less person than the chief justice of India to say in speech in Kerala that upto 20k of the Judges of the superior Judiciary are
corrupt and nothing can be done about it because of the failure of the system for removal of jtrdges. There is now almost consenslrs in the country that there needs to be an alternative system for bringing the errant Judges to 6ook. virtually all political parties had stated in their manifestos tha! they would bring NationalJudicial Commission to deal with appointment a$ well as removal-of the Judges of the superior Judiciary. Recently, even the National Review Commission bo Review the working of the Constitution (NCRWC) has recommended the amendment of the Constitution to provide for National Judicial Commission which will have the power to initiate enquiries against Judges of the superior Judiciary. Also recommended is permanent and standirrg Judges Enquiry Committee which could enquire into allegations against any Judge if so recommended by the National Judicial commission. However, according to the recommendations of the NCRWC, if Enquiry Committee finds the J.dge guilty and recommends his
removal and the recommendation is accepted by ihe National Judicial commissiory and if thereafter also.the Judge does noiresign, the mattei would again be referred to the Parliament for removal proieedings. Moreover,
according to NCRWC, the National Judicia! commission should be composed of three senior Judges of the supreme Court, the Law Minister and one person recommended by the President. These recommendations, do not go far enough to ensure an effective and workable system of judicial accountability. This is because of two main reasons: firstly, the Nationar Judicial Commissiory according to this proposal, is dominated by the Judiciary since three of this five members are three senior Judges of the supreme Court. Apart from the feeling of judicial brotherhood of the sitting Judges of the superior Judiciary whlch mi"ght frustrate an independent view on the allegationJ against the biother judg"es, there is, also the spectre of allegations being made afainst these senior jud[es.
There have been such allegations against sitting chief Justice ani prospective Chief Justice in the recent past. It is unrealistic to expect
ludicial Accountability-Remooal of ludges and Contempt of
Court
261
sitting Chief Justice to make independent recommendations for his removal or even for an enquiry against him. Secondly, even if the Judicial Commission recommends removal according to the recommendations of the NCRWC, if the Judge does not resign, the matter would come back to Parliament, which has been found to be an unsatisfactory political process. subordinate of
Taking all these things into consideration, the Committee on Judicial Accountability had more than five years ato, proposed Constitutional amendment creating National Judicial Commission with disciplinary power
over the Judges of the higher Judiciary. According to this proposal, the National Judicial Commission consist of five members, chosen in manner such that the Chairman would be chosen by collegium of three Judges of the Supreme Court. One member would be chosen by collegium of Chief justices of the Courts. One member would be chosen by the Govemment, one member by the Leader of the Opposition in the Lok Sabha in consultation with leaders of opposition in the Lok Sabha and one member by collegium of the entire Bar
Council of India. It is also provided that the National Judlcial Commission would have an investigative machinery under its own administrative control through which it could get the charges against Judges investigated. If after inves tigation it found the charges to be prima fncie proved, it would constitute an Enquiry Committee of three retired Judges of the Supreme Court to hold
trial of the Judge and if he was found guilty of any of the charges, the Judicial Commission would recommend his removal. On such recommendatiory the Judge would have to be removed without the matter going to Parliament. According to the proposal of the Committee on Judicial Accountability, all members of the National Judicial Commission would have to be only retired Judges of the Supreme Court or retired Chief Justices of the High Courts. Such composition of the Commission would ensure that the members had sufficient judicial experience and knowledge of the working of the Judiciary to be able to understand and decide such matters and vet thev would not be either under the control of the executive or even under the contiol of the sitting judiciary. The providing of an investigating body under their administrative control would ensure that credible charges against the Judges could be properly investigated and that individual citizens would not be required to produce hard evidence of malfeasance or misbehaviour against the Judges.
Unfortunately, however, despite the consensus on the need to have Judicial Commission with disciplinary powers on other Judges, no Government has so far taken any initiative in bringing such a constitutional amendment. Obviously, the Judiciary has been opposing such Commission which would have the effect of divesting them of their present powers of appointment of Judges and would also make them accountable. Each Government has been content io have cozy relationship with ihe Judiciary by which they keep the Judiciary on their side in return for not bringing in the National Judicial Commission. Unfortunately, there has not been enough public outcry on this issue to force dre Parliament and the Govemment io bring such an amendment.
Allied to this problem is the problem of contempt of court. The power to punish for civil contempt or to punish for obstruction of justice is an un-
The Citizen and ludicial Reforms
exceptional. The problem, is in what is known as "scandalizing the court" or "lowering the authority of the court{'. This is capable of a whimsical interpretation and occasionally persons, who have merely been criticizing the court, have been punished for scandalizing it. Moreover, in exercise of this power, the Judges act as Judges in their cause, thus rendering the power all the more liable to misuse. It is being perceived to be power being wielded by the Judiciary to even prevent public exposure of their conduct, which is currently the only manner by which they can be held accountable.
It is submitted that the view that thib power is essential for the rule of law because otherwise the authority of the Judiciary would be totally eroded by all kinds of irresponsible and slanderous comments by the citizens, is a totally mistaken view. It is the actions of the Judiciary and not the comments of the peopie of it which determine the public perception of the Judiciary and public confidence in it. If person makes absurd and irresponsibly disparaging comments on the Judiciary, people will eventually realise that they are absurd and in the process it is the reputation of the maker of such comments and not the reputation of the court which will suffer. The reputation of the court and public confidence in it is.a gradual process built up only by the actions of the court and its judgments and the people's perception of the merits and public interest character of those judgments and actions. There is, therefore, no justification for the existence of power, which serves only to protect individual judges from criticism and exposure and does not in any way serve the interest of the administration of justice or the rule df 1aw. It is, therefore, essential in the interest of judicial accountability, that the power to punish for scandalising the court or lowering the authority of court be deleted from the statute book. Alternatively, article 19 (2) of the Const[tution should be amended to delete contempt of court as basis for placing reasonable restdctions on the freedom of sDeech.
ANNEXIJRE (1) The National Judicihl Commission
Statement of Objects
Bill
Reasons
There is wide spread public perception that the quality of the higher judiciary in the country in general has deteriorated over the last two decades leading to decline in the quality of administration of justice. Apart from the long deiays in the decision of cases, there are also many complaints being heard now about the competence and integrity of judges manning the higher judiciary. It is felt that part of the cause of these problems lie in the present system undir the Constitution for the appointment and removal of judges. Experience does seem to suggest that the present system of appointments as well as for removal is not appropriate to the needs of the present days which require that all vacancies will be filled up promptly by the best available persons of high integrity. The present system of appo'rntment has often led to delay in appointments and has often led to inappropriate appointments being made which is ill-suited to judging the merits oi proipective appointees.
Itrrlicial Accotmtability-Remoual
of ludges and Contempt of
Cottrt
263
Experience has also shown that the procedure for removal of iudges is too cumbersome and impractical to be effective. Further, it is felt that the matter of
determining whether judge is guilty of misbehaviour and thus fit for being removed, should be left to the professional body rather than to Parliament which is not the appropriate body to decide such questions. It is, therefore, felt necessary, to constitute high powered National judicial PersonaSes to be Judicial commission which will be an eminent body of entrusted with the task of recommending aPPointments and removal of members of the higher judiciary. This body will be independent of the Executive as well as of the Judiciary shall be provided with an investigative machinery at its disposal for investigating the antecedents of judge. It shall have the power to examine complaints against judges and in suitable cases set up enquiry committees for conducting full judicial enquiry into the charges against errant judges. It shali have the final power for recommending the removals of an errant jud[e after such enq'iry. Likewise its recommendations for appointments will also be final and binding. It is hoped that such high powered eminent body would make the best possible appointments to the higher judiciary and provide the much needed aCcountability in the higher judiciary' This bill seeks to achieve these purposes. The Constitution Amendment Act An act to fur'ther amend the Constitution of India. Br it enacted by Parliament in the..'..........year of the Republic as follows:1. Short
title.-This Act may be called
Act,............-.. 2. Insertion of Chapter
shall be inserted.
IIIA.-After
the Constitution ...' Amendment
Chapter III, the following Chapter IIIA
CHAPTERIIIA
THE NATIONAL JUDICIAL COMMISSION 1234.-(1) There shall be National Judicial Commission 6snsisting of Chairman and four other members who will be appointed by the Preciding by warrant under liis hand and seal. (2) The functions of the National Judicial Commission will be to recommend the appointment, transfer and removal of Judges and chie{ Justices of High Courts u.rd thtu appointment and removal of Judges and Chief Justice of the Supreme Court. (3) The Chairman shall be appointed on the recommendation of collegium consisting of all sitting judges of the supreme court. one member of the Commission shall be appointed on the recomrnendation of collegium consisting of all the Chief Justices of the High courts. one member shall be appointed on the recommendation of Union Cabinet. One member shall be appointed on the recommendation of the Leader of ihe opposition in the Lok Sibha who will act in consultation with leaders of other opposition parties in
Tle Citizcn and Jttdicial Reforms
both Houses. One member shall be appointed on the recommendation of collegium consisting of all the members of tire Bar Council of India. (4)
person shall not be qualified for appointment to the National Judicial Clommission unless:
(a) He
(i) (ii)
is at least 55 years of age; and
He has been
He is
judge of the Suprenre Court or
judge of
High Courf or
Senior Advocate.
(5) Each member of the National Judicial Commission shall have fixed tenure of years, but he shall be eligible for further terms if reappointed by any of the appointing authorifies. Each vacancy will be filled by appointment on the recommendation of the same authority on whose recommendation the member whose membership fell vacant was originally appointed. (6)
member can resign his office by
letter addressed to the President. He shall not be removed from the office except on the rinanimous recommendation of all the other members of the Commission. No member of the National Judicial Commission after completion of his terms will hold any other public office or will practice in court or chambers. (7) The Chairman of the National Judicial Commission shall have the stahrs and salary of the Chief Justice of the Supreme Court of India, and its members shall have the starus and salary of judge of the Supreme Court:of lndia.
(8) The National ludicial Comrnission u,ill frame its own rules of procedure and will recruit and frame the terms and conditions of its own staff, including
term of investigators to assist it. The National Judicial Commission shall have such officers, staff and ser'ants including a team of investigators, as may be deerned necessary by the Commission. (9) The administrative expenses Of the National Judicial Commission including all salaries, allowances and pensions payable to or in respect of the officers, staff and servants of the Commission shall be charged upon the
Consolidated Fund of lnclia
(10) The seat of the National ludicial Commission shall be at
New Delhi.
ln place of Article 124, the follon'ing shall be substituted: 124.-(1) There shall be Supreme Court of India consisting of the Chief J'stice of India and such number of judges as the National Judicial Commission shall determine from time to time. (2) Every judge of the Supreme Court shali be appointed by the president bv warrant under his hand on recommendatio., o] th" National Judicial Commission and shall hold office until he attains the aee of 65 vears. The chief Justice of India shall always be appointed by seniority fiom among the judges the Supreme Court, unless the National Judicial Commission unanimously recommends otherwise. The recommendations of the National Iudiciil Commission will be binding on the Presidlent. 3.
Irttl icial Accountability-Remoxal of ludges and Contempt of
Coutt
265
Before making any recommendation for the appointment of Judge to the Supreme Court, the National Judicial Commission may consult the Chief Justice
of lndia and other judges of the Supreme Court. However in case of
disagreement of view of the Commission shall be final in the matter. judge may by writing under his hand addressed to the President resign his office;
(3) If any dispute arises about the age of judge of the Supreme Court, it shall be determined by the National Judicial Commission whose decision shall be final.
person shall not be qualified for appointment as a iudge of the Supreme Court unless he is citizen of India; and (a) has been for atleast 15 years judge of High Court or of two or more High Courts in strccession; or (4)
(b) has been for atleast
years an advocate of
more High Courts in succession; or
High Court or of two or
(c) is in the opinion of the National Judicial Commission jurist.
distinguished
judge shall not be removed from his office except by an order of the President passed on the recommendation of the National Judicial Commission which wil[be binding on the President. (5)
The National Judicial Cr:mmission will recommend the removal of iudge of the Supreme Court only on the finding of misbehaviour or incapacity arrived at after an enquiry by Committee of three retired judges the Supreme Court, to
be selected by the National Judicial Commission to inquire into charges of misbehaviour or incapacity against the judge. The rules of procedure for framing the charges, constituting the Inquiry Commission and the rules of procedure for the Lrquiry shall be framed by the National |udicial Commission' (6) Once the Inquiry Committee is constituted to enquire into the charges against judge he shall desist from discharging judicial functions' iudge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. (7) Every person appointed to be
(8) No person who has held office as fudge of the Supreme Court shall plead or act in any court or before any authority within the territory of India. He shall not be appointed to any office of profit, including Commission of Inquiry by the govemment at the Centre or any State, except on the recommendation of the National Judicial Commission.
4. In Article 126 of the Constitution, in place of the words, "as the President may appoint for the purpose", the following words will be substituted
"as the President may appoint on the recommendation of the National Judicial Commission".
The Citizen and Judicial Reforms
5. In place of Article 217, the following will be substituted:
217.-(7) Every judge of the
Court shall be appointed by the President by warrant under his hand on the recommendation of the National Judicial Commission and shall hold offirce until he attains the age of 62 years. The Chief Justice of High Court shall Always be appointed by seniority from among the sitting jr,rdges of that High Court, unless the National fudicial
Commission unanimously recommends Otherwise.
(2) The President will be borrnd by the advice of the National Judicial Commission. (3) The National Judicial Commission shall not make its recommendation
to the President until at least two weeks after the name of the proposed appointee has been duly notified to the public in the press by the National
Judicial Commission.
judge may by writing under his hand addressed to the President
resign his office.
(5) If any dispute arises about the age of
judge of the High Court, it shall be determined by the National Judicial Commission whose decision shall be final. (6) person shall not be qualified for appointment Court unless he is citizen of lndia; and
judge of the High
(a) has held for atleast 10 years judicial office in the territory of India; or @) has been for atleast 10 years an advocate of High Court or of two or more High Cor"rrts in succession; or
(c) is in the opinion of the National fudicial Commission a distinzuished
iurist. (8) judge shall not be removed frpm his office except by an order of the President passed on the recommendation of the National Judiiial commission which will be binding on the President. The National Judicial Commission will recommend the removal of
judge
gnly on the finding of misbehaviour or incapacity arrived at after an Inquiiy committee of retired iudges of the supreme Court or High Court constituted by -3 the National Iudicial Commission to inquire into charges of misbehaviour or incapacity against the judge. The rules of procedure for framing the charges, constituting the Inquiry Committee and the rules of procedure for the Inquirv shall be framed by the National fudicial Commission. 5. In place of article 220, the following will be substihrted: "No person who after the commencement of this Constitution has held office as of High Court shall plead or act in any court or before any authority in India except the supreme colrrt and the other High Courts. He shail not be appointed to any office of profit, including Commission of Inquiry by Covernment, except on the recommendation of the National iudicijl Commission".
Itrlicial Accountnbility-Remounl of 7.
lttclges and Contentpt of
Court
267
Article 222(1) shall be substituted by the following:
of High Court may be transferred from one High Court to another High Court by the President on the recommendation of the National Judicial Commission. Such recommendation will be binding on the President".
"A
jr.rdge
(2) Resolution Passed by the Convention on
judicial Accountability on 7-9'1996 The Convention notes with serious concem that despite the demonstrated failure of the system of impeachment for holding iudges accountable fot their
misbehaviour, and despite the recommendation of the previotts Convention on judiciary that Judicial Accountability and all other responsible observers of the the system of impeachment be replaced by more practical and easily workable system, nothing has been done to achieve this. On the other hand, the Supreme Court has frowned upon the Bar for raising question about the integrity of judges. This is despite the fact that the so-called 'in house' system of the judiciary for cleaning the mess within it has hardly worked at all. Any action against judges for their misbehaviour and iack of integrity so far, though it has been very iare, has been possible only because of the stand taken by the Bar against these judges. The result is that the judges still continue to remain largely unaccountable. The Convention is of the firm view that we need an independent, high oowered, multi-member National Judicial Commission which should be vested with the ultimate power of aPpointment, transfer and removal of judges' It should have an investigative machinery of its own and its functioning should be transparent. The Convention recommends that Parliament should immediatily enact constitution Amendment Act to bring about these changes. The Convention also notes that despite the judges decision vesting the ultimate power of aPpointment of judges on the Supreme Court of India, the system of appointment of judges still remains unsatisfactory. In particular, the lick of trinsparency in the system of appointments has allowed the appointment of nirmber of undesirable Persons in the recent past' The ionvention is firmly of the view that the vesting of the ultimate power of appointment and trinsfers in single person, even if he be the head of the of this power on ludiciary, is unsatisfactory and is likely to iead to the exercise the basis of imProPer information and exh'aneous considerations. The Convention constitutes sub-committee of the following members of the committee to finalize the draft of such legislation and pursue it with Parliament. The drafting Committee inciudes M/s' A' Shanti Bhusharu Ram and Jethmalani, Indira Jaisingtr, V.M, Tarkunde, Har Dev Singh, Kamini Jaiswal Prashant Bhushan.
SUB]ECT INDEX confidence in police administration, 31 duty ot, 742 duty of judiciary, 85
Accountability of |udiciary, 256, 259 Administrative wing of the cour! 138 Anticipatory bail, 224 Anti-Defection law
freedom of speech, fundamental duties, 130, judicial reform, 106
Constihution 52nd Amendment,
justice, 24
control.ersy, Appointment of judges, t7
27 45 47 737
1.52, 154,
1,59
law abiding, 24 personality of, 93 rights of, 179
1,93
21.1.
additional qualification, 168 balancing representation, 167 Commission for, 171 Constitution of India, 159, 160 criteria for, 159 ethical behaviour, 169 from bar, 159 injustice and inequalities, victims of,
solemn duty, 140 Code of conduct, 138 conflict bet',veen executive and legislature, 88 conflict between legislature and
judiciary 88 Constitution distribution of powert 44
t62
due process of law, High Courts and Supreme Court, interpretation of, 6. 7, 44 Iaw's delay, 45 organs of State, ,l Preamble of, 44, 45, 153 scheme of, 5, 44 supreme, 60 Supreme Court and High Court, 4, 159
judge's backgiound, 166 rnatter of practice, 1.59
professional expertise,'172 reflective judiciary, 163 report of suggestions of National Judicial Commissiory 211
Bail
written,
bail, not jail, 224
Contempt of Court, 17, 245, 254, 256 accountability of judiciary, 256 oellnl on,
right to justice, 224
Bav 53,757,1,59
appointnent of judges, 159,
representatives of, 172 Bar Council, 40
131
164
rernoval of jrrdgcs, 259
Court
hierarchy of, laxity irg 201 number of judges,
Burden of proof, 230
Citizen
pendency of State courts, 210 subordinate courts, 206
basic law,
citizenship valug 99, 1.00 citizenship value as lawyers, l0l citizenship value and lawmakers, 102 citizenship vaiue and litigants, 102 citizenship value and wihresses, 102
Cfime,228 Criminal justice syslem, 226
268
269
Subject Index cost of justice, 86
De1ay, 199, 222 cause of, 104
199 dispension of dir.ine seat of justice, 102
Emergency proclamation of, 12
executive orders, 87 confidence, 69 freedom and democracy, 27
interlocutory applicatiory 105
138 fundamental hierarchy of courts, human rightq 153
Freedom of press, 252
independence and competent, 165 independence of, 1,4, 27, 43, 46, 82, 88,
High Court
appointment of judges, 154 sub-judiciary, 53 subordinate courts, 54 Human Rights, 62, 153
132,r79 Indian judicial
Judge
appointment of, 17, 27, 15, 47, 137, 150, 1.52, 1.54, 159, "t72,211,
dignity,147
honest judge and independent judge, 150
impeachment, 23, 157 Indian judiciary, 147 prosecutor, 149 quality of 147, 189 removal of 1,57, 176 iudicial accountablllty, 256, 259 Judicial activism, 29, 54, 72, 238 criticism, 72 public interest litigahon, l5 Judicial council, 29
|udicial delays, 24 judicial Reform, 82, 84,1.06, 125 Constitutional validity, 35 fudiciary access to justice, 48
accountability of, 256, 259 Act of Parliament, adjudication of right, i26 administration of justice, 142, 143 administrative wings of court, 138 appointment of judges, 17, 27, 45, 47, 2'1
weaknesses, 198
inexpensive justice, 90 institution of governance, 35
Impeachment of itdge, 23 Independence of judiciary, 43, 82,88,179
1.37, 152, 1.59, 172, L93,
process, 5
interpretation of law, 87
judges, 99 judicial accountablllty, 47
judicial judicial judicial judicial judicial
56, 72, council, 29 reforms, 44, 84, 125
review,
review
judicial system of European courts, 39 justice citizen friendly, 106 knowledge of law, 149
agencies, 138
object of, 65 partial separation of power, 88 pillars of State, 81
political
51
prof essional misconduct. 40 public interest litigation, 16, 86
public opinion, 35, 43 27 recommendations
reflective judicia ry ,1,63, 164 representative democracy, 14 responsibilities, 36 role of fudiciary and social transformation, 170 48,
speedy
subordinate
137 ,207
justice, 103 technology and justice, 192 205 transfer of judge, 156
working of,
1.
British Parliamentary system, Constitution, 161 contempt iudsdiction, 245 corruPtion, 77
Letter
writ petition
Lok adalat, 82 petty cases, 55
the basis of, 15
75
The Citizen and
National fudicial Commission Bill, 263
News paper
trtalby,252
.P
Parliament Act of, judiciary, administrative tribunal, Anti-Defection law, British sovereignty, court proceeding, making of laws, number of
pe4ury,237
police,229 privilege, 7, 10 sovereign,
vacation of seat, 7
Polity
Constitution of India,
democratic polity, 4, 81
interpretation of law and interpretation of policy, 87 judiciary, Parliamentary, politisation, 89 Presidenfs 11 severe strain,
sovereignty,4
ludicinl Reforms
definition of, organs of, 3. pillars of, 81 powers of union and State, distribution
of,4
Fubstantive criminal iustice, 223 Sovereignty total sovereignty, 36 Speedy justice,
right to, 48 $upreme Court
advisory opinion, appointment of judges, 45 assets declaration 48 contempt, fixed time framed for hearing of cases, 3l freedom of speeclr, impeachment of iudge, 23 independence of judiciary, 14
interpretation of Constitution, pre-trial procedurg 51 pronouncement of judgment, removal of judges, 23
right to approach, strict liability, 251
51
Termination of judges,
183
Press
Transfer of iudges, 211
Privilege
Vacation of seat Constitution (52nd Amendment), 1985,
freedom of, 252
Parliamentary privilege, 10 Privy council, 82 Procedure law, 224 Professional misconduct, 40 Public interest litigation judicial activism, 15
irdiciary,
1,6,
86
non-judicial political matters, 16
jurisdictiory 83 sufficient interes! 15
Removal of iudges, 776,259 Right of maintenance, 239 Role of Government, 62
transformation, 170
Parliament, Vacation of evidence, 200
Victim
protection of, 234 secondary victimisatron, 224
Witness
citizenship values, 102 divine seat of justice, 102 protection of, 234
Writ petition
letter, 15 principles and norms for welfare of children. 15
