Monday 22 February 2010, by Justice V R Krishna Iyer / Mainstream, Vol XLVIII, No 9, February 20, 2010
These two versions are radically different in principle and content. The Preamble of our current Constitution has inscribed its conscience that it pledges the people of India to Justice—Social, Economic, Cultural and Political India with a geo-political concept. Indians are humanist—a socio-economic idea, a collective value, emphatically, a crore or more of Indian humanity with a cultural legacy. A finer noble thought than a mere span of space, a terrain or land politically united by a notion of nationalism. One is dynamic and dialectical, the other is bare ground, air, earth space which is the habitat of ten million of humanity. We are proud of being a united people. But earth and ocean have no life unless man has enlivened it. Institutions are to serve life and its development while earth is a planet on which people are born, live grow and die. If birth exists, death certainly is a painful end.
If democracy is for the people, the Supreme Court should function where litigants need it, not where the British for their imperial reasons chose the location. The Red Fort and Delhi were for historical and geographic strategic grounds decided as the Capital. Delhi has no other claims to be the capital of the judiciary. For military purposes and administrative purposes United India found Delhi the most suitable. But with the Partition, Delhi itself is vulnerable even from Pakistani military angle. As for the headquarters of the judiciary, Delhi has no special advantage, cultural, geographic, political or social, to be the centre of the judicial administration. ‘For the People’ is a democratic and logical desideratum. Then courts should be where litigants are live in numbers, where their access to courts is best facilitated. In the large country of Bharat, Delhi is in a corner and the people live down South, East and West. Judging by relevant considera-tions bearing on the availability of forensic factors in a poor country, rife land disputes, cultural and religious conflicts and lawyers in numbers to make the adversary system feasible. These factors may be studied by a Commission like the Law Commission which has come to the reasoned conclusion that there must be four Benches. The South feels dominated by the North by the Supreme Court. If no Supreme Court is situated, the South, especially Tamil or Dravidian States, once had a move for separation from the Aryan North. If justice is also alienated by distance, culture, language from the North, the Supreme Court with authority over the rule of the nation this insular judicial imperialism will be a divisive force which should be avoided at all costs. One court, one country. But decentrali-sation is imperative dependent on the geography, history and other social perspectives which too are relevant. The glory of India in its undivided status and stature is not dependent on a single court but on its pragmatic diversity. So these are profound considerations behind the demand for Benches outside Delhi. Why did Pakistan as a nation became powerful only on religious criteria? Why did Bengal separate from Pakistan and became a separate sovereign State? Language and culture. These are good lessons for us to keep Bharat as advaita. Let us have Benches on federal considerations promoting Unity in diversity.
Democracy, in a vast country of diversity, demographic immensity, logistic difficulty and large-scale indigency, makes decentralisation an imperative of administration. Access to justice also implies early finality within reach of t he rich and the poor. These considerations persuaded the UP State, one of the direst in poverty, largest in population, and most agrestic in life-style, to attempt a moderate reform in the field of revision to the High Court in litigations of lesser financial stakes. Judicial reform is upto now a tinkering exercise, not an engineering project but even that little tinkering is fiercely challenged as litigative anathema by the profession, which is unfortunate. Decentralisation has a paramount desideratum if access to the people of judicial institutions has to be a reality and this fact compelled various states within India even native princedoms adopt the strategy of Benches. Rajasthan, Bombay, UP, Travancore-Cochin, even small Tamil Nadu have separate Courts or Benches. To enable the poor aggrieved to reach the courts and seek their remedies it has worked well and the same reasoning justifies more importantly the need for Benches of the Supreme Court if that magnificient institution is to fulfill its fundamental mission of being a court for the people and of the people. This principle persuaded the Law Commission to recommend four Benches for the large country of India with a population over ten million. A few excerpts from the Law Commission Report and a speech made by me inaugurating a seminar in Kochi on the subject may be relevant.
After all, justice is for the people, the needy people and not to be manipulated by a rich Bar and a creamy layer of high status but narrow population. If democracy is to live, democracy must be made efficient; for the survival of the fit is as much a law of political economy as it is of the life of the jungle. If we would preserve free government in America, we must make free government, good government. Nowhere does government touch the life of the people more intimately than in the administration of justice.
(John J. Parker)
The Law Commission has pointed out how huge sums are wasted by a single court in one corner of the country being made final and infallible and driving every litigant selling all he has to reach Delhi higher on fabulous fees and to hire the lucrative lawyers only to find that by afternoon the case would be postponed and a large sum already incurred going down the drain. Air fare is expensive, hotel costs are horrendous, lawyers charge high fees, and arguments with leisurely judges take too many days. On the whole going to law is like going to Banaras or Mecca, by writing a will because the litigation lasts beyond your life time and astrologers alone can anticipate the uncertainty of its future fate. The Law Commission has made the following among other recommendations:
1. Four Cassation Benches be set up in the Northern region/zone at Delhi, the Southern region/zone at Chennai/Hyderabad, the Eastern region/zone at Kolkata and the Western region/zone at Mumbai to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region.
2. If it is found that article 130 of the Constitution cannot be stretched to make it possible to implement the above recommendations, Parliament should enact a suitable legislation/Constitutional amendment for this purpose.
The rule of law must govern the rule of life and if life is to be humanist, compassionate and accessible to the lowliest, law must be equally open to the humblest, simplest and the littlest member of the community.
¨ Justice, judicial justice, is the most precious value to a people. The adversary system of justice to be successful has to have the Bar as an integral part of the system of judicial administration. The Bench and the Bar together operate to dispense competent and sound justice. Justice is the salt of the earth and if the salt loses its savour, wherewith shall they be salted? The excellence of justice, the refined process of justice and justicing makes humanity happy, harmonious and a haven for peaceful and progressive habitation. Access is negated where the system is expensive; the social philosophy of the judges and the lawyers are with the proprietariate and the poor are priced out of an archaic system whose doors open only to the opulent and close for the indigent.
Dialectical materialism is the reality in the temporal world and where purchase of able argument from the Bar is beyond the purse of the litigant, he is de-facto denied justice. Economic democracy in the administration of justice commands a system where courts and tribunals are easy to reach, inexpensive to tap and facilitate finality of verdict. These fundamental features compel a democratic system of justice to be successful by decentralisation. Sans decentralisation, the people cease to be the beneficiaries of democracy and do not possess a voice in the State process. This applies all the more in the case of justice because justice is based on law and law in a complex society like modern democracy is too complicated for the laity.
Our legal system is altogether beyond the common people and is so esoteric that a society which is largely illiterate remains alien and unintelligible without economic availability of the Bar which has professionally a monopoly of jurisprudence. If the court has too many tiers and the highest court is too distant from the regions where the proletariat live and struggle for existence, the right to justice which is the quintessence of democracy loses its spiritual value and cipherises the other fundamental rights. The inevitable conclusion is that a decentralised system of judicature is a paramount property for democracy to have élan.
A vibrant democracy must therefore have a circuit system of administration of justice. Alternatively, Benches in different parts of the country to make the courts reachable to the lowly and the lost, justice must be available so that social justice may become a reality. The Bench and the Bar must be easy of access if economic democracy is not to be a travesty. If political justice is too costly to be available only to the rich, laws grind the poor and the rich men rule the law.
The author is a retired judge of the Supreme Court.
N.R. Madhava Menon IN THE HINDU
The National Commission on Higher Education and Research Bill aims, in letter and in spirit, to secure the true autonomy of universities and institutions of higher learning.
The Member-Secretary of the Kerala State Higher Education Council, in an article published in these columns on February 6, 2010 on the draft National Commission on Higher Education and Research (NCHER) Bill, argued that the Bill “does not allot appropriate levels of autonomy to States and universities, and in the process violates the principles of federalism and autonomy in the governance of higher educational institutions”. As one associated with the Task Force which prepared the Draft Bill, I felt that the article was written either without a proper understanding of its provisions, or with a motive to prejudice the public mind against true autonomy of higher academic institutions.
The author also invoked the concept of federalism to attack the Bill, presumably to say that the Union, without competence to legislate on the subject, is attempting to take away the States’ authority. Is it his case that the Acts in respect of the University Grants Commission (UGC), the All India Council for Technical Education (AICTE) and the National Council for Teacher Education (NCTE) which the NCHER is to replace, were also passed by Parliament without constitutional authority? What does he make of Entries 63 to 66 of the Union List and Entry 25 of the Concurrent List in this regard? If the argument is for consultations with States before a law affecting the States and the Union is adopted, that precisely is what the Union government is doing by putting the draft Bill in the public domain and asking the Task Force to visit each State to gather views and comments from the stakeholders. Of course, based on such feedback, the Bill may undergo changes before it is submitted to Parliament for consideration.
Reforming higher education is the common interest of the Union and the States and there is no room for dispute in this regard. The Yash Pal Committee recommended that the key reform needed is restoring the autonomy of universities (not the autonomy of the State governments, which is the function of the Constitution) by avoiding multiple regulators and preventing politicisation of university administration. Autonomy of universities involves autonomy from Central and State governments as well.
The Preamble of the NCHER Bill says it is an “Act to promote the autonomy of higher education institutions for the free pursuit of knowledge and innovation, and for facilitating access, inclusion and opportunities to all… and to provide for an advisory mechanism of eminent peers in academia.” One would expect critics to give reasoned arguments on how the provisions of the Bill contradict these objectives, or in what manner it could be better achieved.
The attempt to unify the multiple regulators and standardise the norms and procedures in a transparent manner is interpreted by the author of that article as centralisation of powers. Yes, the Bill seeks to vest the standard-setting and policy-planning functions in the NCHER. However, the delivery of educational services is a decentralised activity at the institutional level, and the NCHER plays only a facilitatory role in it. It is therefore wrong to say that an “authoritarian system” is being put in place.
Entrusting education in the hands of educationists is what is proposed. In this, they have to function democratically under legislative mandate and on the advice of acknowledged experts in different fields of knowledge. The NCHER cannot be seen as a “benevolent dictator” under the provisions of the draft Bill, as it is to function through various bodies set up with educationists in different branches of knowledge. Its functioning is to be reviewed once every five years and it is to report annually to the President or the Governor on the state of higher education in the country or State as the case may be.
The Collegium of Scholars and learned men is indeed an innovation proposed for advising reform on the structure and content of higher education. They are to be Nobel Laureates, Fellows on learned societies of international repute, Jnanpith Award winners and people of similar distinction. Respecting the federal and democratic principle, the Bill seeks to have nominees of States also in the Collegium. Utilising the expertise and experience of learned men and women settled within and outside the country to promote standards of higher education is the intended objective of the Collegium proposal. If there are suggestions on how the objective can be achieved by changing the composition and constitution of the Collegium, these are to be welcomed. It is an idea with a purpose. It is not intended to give a subordinate status to the nominated members, though the core members are expected to serve the Collegium for a longer period for obvious reasons. All Collegium members serve in an honorary capacity without having to be present physically at one place.
The States and Union Territories have their nominees in the Collegium. The nominees are also expected to be educationists or eminent persons of equivalent status. The core members are not the nominees of the Union government. They are there by virtue of their accomplishments in higher education and research and are invited because of their expertise, experience and status in higher education. If it is desirable to limit the term of the core members also, it can be recommended on the basis of cogent reasons. It is the anxiety to keep the government out in constituting the Collegium that led the Task Force to recommend the method of inviting persons on the basis of their accomplishments in education and research. It is not to be seen as an assault on federalism or democracy. It is the concern for the autonomy of the institution that elections or nominations in the usual course cannot accomplish. Leaving the Union or State governments to “nominate experts of their choice,” as contended in the article, may not serve the objective for which the Collegium is put in place. The Collegium members are not to be government employees; nor can it be assumed that they would agree to become members of the Commission, as suggested in the article.
The State governments’ power to set up universities will not be taken away or eroded by the NCHER. As it happens today with the UGC and the National Assessment and Accreditation Council (NAAC), the authority to accredit universities, determine standards and finance them will be regulated by the new Commission. Academic clearance is not to be given by the Commission on its own. Accreditation is to be done by an independent accreditation agency recognised under law on the basis of credible evidence gathered according to objective parameters. Towards this end, the NCHER may authorise the academic operations of new universities on the basis of norms and standards set for the purpose. How does the authority of the AICTE or the Medical Council of India (MCI) or the Bar Council of India (BCI) to accredit institutions erode the States’ authority to set up universities, as argued in the article?
An innovative measure to secure academic autonomy that is proposed in the Bill relates to the selection of Vice-Chancellors. Many ills of higher education, at present, can be traced to corruption and manipulation involved in the appointment of Vice-Chancellors. The Bill empowers the Collegium to prepare a registry of suitable persons with expertise and experience after a worldwide search and to keep it updated from time to time. It is not necessary that only persons who figure in the registry be appointed. Whenever the Central or State governments want to appoint Vice-Chancellors they can ask, if they so like, for a panel of names from the Commission as per their requirements, and the Commission may provide it. This is to facilitate the search and to present available candidates of distinction within and outside the country. There is no infringement of autonomy in the process; rather, it enhances autonomy by removing potential risks to such autonomy. The States’ choice of the person and the right to choose one from outside the registry is in no way compromised by the provisions in the Bill.
Let there be no confusion or misunderstanding that the Bill, in letter and in spirit, aims to secure the true autonomy of universities and institutions of higher learning. The autonomy proposed will, hopefully, percolate down to each department and each member of the faculty so that teaching and research tend to innovate, experiment and compete for academic excellence and inclusive development. Looked at from this perspective, the NCHER Bill provides a framework and a strategy for securing autonomy of academic institutions and providing an environment for competitive excellence in higher education.
( Professor N.R. Madhava Menon was a Member of the Yash Pal Committee and of the Task Force which drafted the NCHER Bill.)