Of all the promises made in the Constitution, the most important are the promises of the ‘right to life’, the ‘right to dignity’, the ‘right to personal liberty’ and the ‘right to bodily integrity and health’. However these promises are yet to be redeemed for women. Rape and other forms of sexual assault,domestic violence,dowry death and honour killings — the most brazen violation of these rights — are a real and daily danger for most women.
The cry that has been reverberating in the streets of the capital — and across the country — from a new and younger generation of citizens is: “We want justice”. It is addressed to us judges and lawyers whose primary responsibility is to protect the rights of the people. The women of this country are no longer willing to tolerate the unconscionable delays in the delivery of justice. It is the sacred duty of judges to prevent violence against women in the home; at the work place and on the streets and hold the perpetrators accountable. What is it that stops courts from securing justice for women? Why has the law not been able to convict the accused when it comes to crime against women? The situation is best summed up by a famous Orwellian quote—’ to see what is in front of one’s nose needs a constant struggle’.
To see the lack of judicial will to get justice for victims of gender-based violence, as stemming from a deeply entrenched prejudice and misogyny in the justice delivery system, including the courts and their judges, is an exercise demanding a constant struggle. It is so much in front of our noses that we, women and men included, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements.
This is a part of the Indian reality; from the private sphere of the ‘home’ to the public space like places of work; from the open streets to the corridors of courts playing out in the theatres of justice. Today, the belief in equality is not sincerely held at all. On the contrary, the social system, including the judicial system, is built on a hierarchy along caste and gender lines.
It is no secret that violence against women stems from the deeply unequal relationship between the two sexes in private and public life. It is also no secret that this misogyny is deeply rooted in our society, including within the system of administration of justicefrom investigation to trial, to judgment. A high court judge in Orissa in his judgement once famously held, that it was not possible for a man, acting alone, to rape a woman in good health. There you have it, the distinction between “legitimate” rape and ” illegitimate” rape (to borrow from the infamous comment by Todd Akin) coming from a high court judge.
This is the same thing you hear so often from judges that “women are misusing the law.” They decide what is the legitimate use of the law for women, based on a deeply sexist view of how a woman should behave; what she should desire and how much violence she should tolerate. A casual glance at the kinds of questions a woman is asked in any prosecution of gender- based violence or a reading of judgments of the court will reaffirm this view. On one occasion when a woman lawyer asked for an adjournment, a district judge said, ” I know how you women lawyers make it”. He was rewarded by being appointed to the high court.
Sexual violence against women is unique as it begins in the home and moves out to public places. The problem begins with the assumed consent that women give to sexual intercourse within a marriage. Rape by a man of his wife without her consent is not an offence. Since this is a settled norm, it matters little whether forcible sexual intercourse is with the wife or a stranger on the street. With this accepted culture of rape within marriage standing tall, we have little hope of changing the culture of violence against women anywhere. The assumed consent of a woman to sexual intercourse becomes ingrained in the psyche of a man — as a husband, a son, a brother and this psyche continues into public spaces. Thus it is imperative to recognise that non-consensual sexual intercourse is unacceptable regardless of whether it is with a wife or a stranger, if we want sexual violence against women to stop. A legal culture that creates ‘legitimate and ‘illegitimate’ violence needs to change.
It is heartening to see for the first time, a large number of men on the streets protesting against sexual abuse of women. It is a new generation which brings hope that the tendency for violence against women is about to end as men of future generations will not tolerate such violence.
Lack of adequate number of judges or excessive workload is no longer an acceptable excuse to the women of this country for delaying judicial decisions. They know that it is the abuse of the process of law by vested interests and the utter indifference to women who have been sexually abused, that cause delays, not lack of infrastructure. An approximately 40% increase in the number of judges between 2005 and 2012, has not produced a corresponding decline in the pendency of cases. Justice does not reside in the brick and mortar courtrooms but in the heart and soul of judges and lawyers who represent victims of injustice. Any judge worth the name knows how to prevent delays and an abuse of the process of law by the rich and the famous.
The first duty of judges is to give cases of sexual assault priority and deal with them expeditiously with zero tolerance for delay. The demand for fast track courts is a metaphor for the intolerance of a dysfunctional legal system. While dedicated courts may go some way in dealing with the issue of delays, they will have to be accompanied by support structures, which enable a fair investigation and prosecution.
Women are conspicuous by their absence from the courts as lawyers and as judges. On the other hand, our law schools have at least 50% women students. Yet due to the patriarchy embedded in the judiciary and the legal system, the number of women lawyers and judges is negligible. Even those who manage to penetrate the highly patriarchal framework are discriminated against in terms of appointments, designation as seniors and promotions. Women are constantly under the microscope being pushed to prove themselves while male lawyers need pass no test of competence. The old boys network effectively keeps women out of the span of all zones of influence.
All talk of increasing the penalty for rapists to death is hollow. As the law stands today, a m a n fo u n d guilty of rape can be given a life sentence, And yet in my entire career as a lawyer spanning over 40 years, I have yet to see a single case in which a life sentence has been meted out to a rapist, what then to talk of the death penalty! This calls for urgent action plan by the Chief Justice of India and the chief justices of all high courts to raise as fast as possible the number of women judges in our courts. A few years ago, a woman who I represented in a classic case of sexual harassment, once asked me why her appeal was not being listed before a woman judge in the Supreme Court. My answer was simple, “because there is no woman judge in the Supreme Court.” At this she expressed her amazement and asked, if the Supreme Court could mandate that the chairperson of a sexual harassment committee which was to be set up by employers must be a woman, how come that law does not apply to the court itself ? I had no answer.
A critical mass of women in the judicial system and in the prosecution will inspire confidence in the system for women. The world over, this is known to happen. Women today have no stake in the judicial system and this is reflected in the cry “We want justice”.
A demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws. Accountability of the police must start with a complaints procedure within the police service itself where a complaint can be lodged for non-performance of duties. A clear command responsibility must be articulated within this mechanism so that in case of non-performance of duties by a junior, the senior officer is held liable. When a pattern of non-performance emerges, leading to a permanent sense of insecurity in which women live, the accountability must be that of the head of the police, and of the political establishment. Confidence in the administration can only be restored by measurable action against people in positions of power.
The judiciary has long been a selfregulating, self- appointing institution. We need a transparent method of appointment of judges where the antecedents of the proposed appointee can be publicly scrutinised. Accountability of the legal system must carry with it, accountability of judges. We need an official mechanism for monitoring the performance of the judiciary to check how content of their judgements meet the constitutional goals of equality. We need independent special rapporteurs drawn from civil society to report directly to Parliament on the performance of the legal system, the judicial system and the police system and violence against women.
It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. The language of the law must be sanitized of all its male chauvinist content. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgements or during the course of arguments in court. Accountability starts at the top with the Supreme Court, what a judge of the Supreme Court thinks and says today, will be said and done by the 17,000 subordinate court judges who deliver justice under the supervision of the high courts.
We need a protocol on how judges ought to behave with women in courts and how they should address women’s issues in their judgements. Gender sensitive language must reflect in judgements dealing with women. This is not a matter of form but of substance. Changing culture and mindsets often requires language to change and rules and regulations, which reflect the change and do not permit a fall from standards. This is the time when the Chief Justice of India must rise to the occasion and speak to the nation and inform us what will be done to restore the confidence of the people in the justice system. Besides his role as a judge, he has a role as the head of the judiciary responsible for the administration of the justice.
The single most important statement we would like to hear from him, is that discrimination against women by judges will not be tolerated; the judiciary will have to exhibit and demonstrate zero tolerance of violence against women in the home, and on the streets.
The goal of law is to sustain life not support its destruction. This is what the 23-year-old was trying to tell us, before she died. “I want to live,” she said, not die of shame. She changed the way society looks at rape — from blaming the victim to focusing on the rapist. All law reform must move in that direction, asking how we can build a new life-sustaining legal culture, a more equal culture, with justice for all. That is the question we must address — with or — without a special session of Parliament.
The writer is Additional Solicitor General of India
‘Activists keep arguing that it takes too long to prove a man guilty. But is that fair grounds to reject the rule of law in favour of kangaroo trials?
In this Idea Exchange, the new Minister of Law and Justice, Ashwani Kumar, speaks about judicial activism, and the right to privacy vis-a-vis the right to information. This session was moderated by Senior Assistant Editor Maneesh Chhibber
Maneesh Chhibber: There is a feeling that the Indian higher judiciary is going into areas that don’t concern judges. How do you intend to check that?
It is absolutely true that over the last couple of years, there is a widely-held perception that there is a treading into other domains by organs of the state whose remit is not that particular sector. It is equally true that what the judges do or say, they believe they say or do so by the command of the Constitution. Now who will determine the outer parameters and the constitutional laxman rekhas? The Constitution confers that right on the judiciary, yet I believe that recent judgments of the Supreme Court, including the one in the 2G spectrum case, have clearly spelt out the Supreme Court’s perspective with regard to interference in policy decisions. The highest court of the land has categorically reaffirmed the proposition that judiciary cannot concern itself with policy making nor can it go into the questions relating to the political domain. But the judiciary has said that it can intervene in the implementation or the manner of implementation of the policy. I don’t think the government has any quarrel with that proposition.
Maneesh Chhibber: It is said that judges get swayed and play to the gallery.
Judges are prone to be concerned with the prevailing environment of the day, yet the constitutional and judicial discipline demands that judges decide as objectively as the brief in front of them permits. In a large majority of the cases, judges do decide fairly. There have been cases where the general feeling has been that the judges have said a little more than what justice demanded but that was a more a function of the style of writing a judgment and style varies from judge to judge.
Amitabh Sinha: The Shah Commission has given its report on the proposed privacy law. What are your views on its recommendations and on the proposed privacy law?
I did take the initiative of establishing a high-powered committee of known experts to discuss the various aspects of the privacy law and the privacy rights that the Constitution confers on its citizens. Our privacy rights are derived from Article 21 of the Constitution. They needed to be translated and enforced through specific privacy legislation. The focus of the commission’s deliberations would have been on how to harmonise the imperatives of privacy protection and the right of the people to know. The right of people to know is as much a part of the constitutional imperative so we need a law which would harmoniously blend these two constitutional imperatives.
Amitabh Sinha: Would you say that the right of privacy, when enacted, essentially needs to be applied in inverse proportion to the public office you occupy? The higher you go up, the less the right to privacy becomes?
The right to privacy in India, culled out from Article 21, is a right that the Constitution recognises as an integral part of our human rights which is non-negotiable. A citizen who is also a public figure may be expected of greater transparency in the conduct of his official duties. But that argument, in my personal view, cannot be used to deny the very basic right to privacy of a public servant. The two rights must move in tandem.
D K Singh: How do you explain the fact that not a single judge has been impeached by Parliament so far? Is it because the judiciary is unblemished or is there some lacunae in the impeachment process which needs to be rectified?
I am really happy that the we have not had to use the impeachment proceedings against judges. Having said that, some people may argue that the difficulty in the impeachment procedure makes it impossible for the procedure to be followed. It’s an argument I accept. But it is in the fitness of things that we have inbuilt defences to ensure that the impeachment mechanism is not abused. If you were to make it easier, we would be vulnerable to the argument that Parliament is using the procedure to make inroads into the independence of the judiciary. It is certainly not my case that the judiciary at every level has an unblemished record. We have noticed cases of judicial aberrations. Up to now, we have left it to the inbuilt mechanisms within the judiciary to deal with such cases. But now that we have a Judicial Accountability Bill, we will, hopefully, establish a more effective legislative mechanism for addressing judicial aberrations.
Seema Chishti: Your government took a radical step on the Lokpal two years ago when you had a 10-member committee to draft the Bill. Would you think about such pre-legislative committees for future legislation?
Certainly, we are enriched by pre-legislative discussions with all stakeholders. I think it is a good thing. Laws are meant for the people and therefore, the more participatory the process of law-making is, the better it is for all. But it is an entirely different thing to say that you could leave the drafting of laws to people outside of the legislatures and Parliament. My view is that the drafting of legislation through Parliament and translating people’s views into the letter of the law must remain the preserve of the legislatures and parliamentarians. And I think my views have been validated by the experience of the past.
Harcharan Singh: Twenty- eight years have passed since 3,000 people were killed in Delhi after Mrs Indira Gandhi’s assassination. Not even five people have been convicted. As the law minister today, what plan do you have to see that justice is delivered faster?
Long unjustifiable delays in dispensation of justice erodes the faith of people in the justice delivery system. Over the last several years, there have been repeated attempts to ensure that affordable and expeditious justice is available to all. There are seven initiatives in the works now to achieve the promise of the Constitution of affordable and expeditious justice. One of my foremost priorities as law minister is to hasten the process of judicial reforms and that would cut the pendency of cases. We have around 3.15 lakh court cases pending in courts. But we are now introducing and reinvigorating the gram nyayalaya justice delivery system and the Lok Adalat system. The criminal justice system is another story all together and I agree with you that it can become very dissatisfying or frustrating or very oppressive. But I want to say something I believe in with all my heart—please do not, in the quest of momentary popularity or appeasing a sentiment, evade the time-tested system of criminal justice which states that presume a man to be innocent until proved guilty. That brings me to another point: trial by media offends the principles of fair trial which is integral to the rule of law. Media trials are unconstitutional. And yet, every day there is a trial by media on every issue. The argument that would be made by the great activists on television every day is that it takes too long to prove a man to be guilty. But is that fair grounds to reject the principle of the rule of law in favour of kangaroo trials?
Harcharan Singh: We had committees and commissions, whether it is the Gujarat riots or the Delhi riots. These commissions take years to gather evidence. What is the use of their findings after so long?
I agree that we need to do a lot more and must bring in amendments and changes in the law. We must adequately staff the legal structures by getting in more judges, more lawyers and courts. It will be my endeavour to try and push through the necessary judicial reforms.
Pranab Dhal Samanta: Where is the government on the proposal for a judicial appointments commission? Your predecessor also wanted to start a conversation with the Supreme Court on moving the two-judge benches to three-judge benches and looking at a permanent five-bench constitutional bench headed by the Chief Justice. Where are you on these issues?
On the second question, I would need to discuss this with the higher judiciary, with the Chief Justice of India. I do recognise that in the last several years, the demand on the judges of the Supreme Court to decide complex issues of constitutional law has increased exponentially and therefore, some kind of structured instrumentality has to be in place to ensure that the best possible judicial decisions are handed down on far-reaching issues without compromising on the judges’ responsibility towards other important litigations pending before them. On the judicial appointments commissions, the consultations with different political parties have taken place. A few details need to be fine-tuned.
Prerna (St Mark’s School, Janakpuri, Delhi): India stands 98 among 175 countries on the corruption index. Judiciary can play a positive role in checking corruption. What are your plans?
I am not sure if any country in the world has been able to completely eliminate corruption but that should not stop us from endeavouring to do so. It would be my endeavour to be a facilitator in the enforcement of anti-corruption laws and ensuring that the enforcement of criminal laws is not oppressive.
Dilip Bobb: What’s your view on Supreme Court judges taking up government-sponsored jobs immediately after retirement?
My personal view, not my view as the minister of law and justice, is that it would be a healthy tradition for judges of the Supreme Court not to accept post-retirement jobs. Having said that, it is equally true that given the complexities of the regulatory regime that we now have to advance our economic and social legislation, there is no substitute for experience. Given also that at the retirement age of 62 years, Supreme Court judges are still active and alert in mind, we need to have some of these wise men on tribunals for a while.
Karishma Kuenzang (EXIMS*): Cartoonist Aseem Trivedi was arrested on charges of sedition. What steps will you take to ensure that freedom of speech and expression and the law of sedition do not clash?
The charge of sedition can only be brought forward in an almost foolproof case. If every spoken word, sometimes in anger or without full reflection on the spur of the moment, is going to lead to a charge of sedition, then I do not know who will be saved from that charge.
Yogesh Rajput (EXIMS): As a former minister of science and technology, why do you think the government gives less importance when it comes to allocation of funds in R&D and science and technology?
The PM accords the highest importance to science and technology. In the 12th Five Year Plan, we have significantly increased public spending on R&D. It used to be less than 1 per cent of our GDP in the 11th Plan. In the 12th Plan, the R&D expenditure, both in the private and public sector, will be increased to about 2 per cent of the GDP, the single highest growth of expenditure in any department.
N P Singh: Should we see the transfer of Mr Jaipal Reddy to this ministry in the context of the PM giving priority to science and technology?
It may well be. I have the deepest respect for Mr Reddy, both for his scholarship and for his ability to read and grasp complex issues of science and technology.
D K Singh: What are your views on Arvind Kejriwal’s allegations that Mr Ranjan Bhattacharya influenced the government during Mr Vajpayee’s prime ministership?
I don’t want to dignify the comments of Mr Kejriwal by my rebuttal or by my comment. I am also not defending Mr Bhattacharya, but if Mr Kejriwal has said anything about an individual based on his information, who am I to comment?
Shishir Tripathi (EXIMS): When Justice Katju was in office, he raised the issue of nepotism in the judiciary.
It’s true that there has been a perception that this is not a healthy practice. I do not know what to say. Does it mean that if somebody needs to be elevated to the judgeship of the High Court, his nephew, son or daughter have to move out of the court? Or does it mean that he should decline to become a judge just because he does not want to deprive his children of the opportunity to practice in court? You need to have a balance on such issues.
Prashant Dixit (EXIMS): Several decisions of khap panchayats have created a furore. Don’t you think that the judiciary should interfere?
The law of the land is supreme and their decision is to be respected by all, be it a khap panchayat or any other panchayat.
Transcribed by Ananya Bhardwaj & Priyanka Sharma
* Express Institute of Media Studies
Sarosh Homi Kapadia
Profile: Chief Justice of India. In his long legal career, he has served as a lawyer at Bombay Bar, a Bombay High Court Judge, a Special Court Judge, Uttaranchal Chief Justice, Judge Supreme Court
- He is one of the finest judges and administrators
- He has redefined judgeship
A judge, by virtue of his chosen profession, chooses to become an ascetic, distant from the society he lives in, yet immersed in it so deep that he is confronted with the rawness of its existential struggle every day. Chief Justice of India SH Kapadia is a person who understands it too well.
“A judge must inevitably choose to be a little aloof and isolated from the community at large. He should not be in contact with lawyers, individuals or political parties, their leaders or ministers unless it be on purely social occasions,’’ Kapadia said while delivering the MC Setalvad Memorial lecture on Judicial ethics in April 2011.
Since taking over as the Chief Justice on May 12, 2010, Kapadia has worked tirelessly to restore the diminishing dignity and credibility of the Supreme Court as the final forum for justice seekers. With a single stroke of the pen, he stopped reckless mining in Bellary. He disqualified the crucial appointment of Central Vigilance Commissioner (CVC) reminding the prime minister and his government that processes must stand the test of integrity. In the Vodafone case, Kapadia pointed out that laws are not open to unduly liberal interpretations. A corporate lawyer said that the Vodafone judgement reinforced to the world the independence of the country’s judiciary. In a few days a Constitution Bench headed by Kapadia will decide on the Presidential Reference made to it after the SC quashed 122 telecom licences and asked the government to conduct auctions to allocate natural resources. He is also expected to frame guidelines for the media on reporting on matters that are being heard in court.
Chief Justice Kapadia will be remembered for some of the landmark judgements he delivered. And the way he lived as a judge will never be forgotten. It can only be called exemplary. In a now famous and widely quoted letter that he wrote to former Justice VR Krishna Iyer, Kapadia said: “I come from a poor family. I started my career as a class IV employee and the only asset I possess is integrity…’’
The destiny of Sarosh Homi Kapadia was uncertain when he was born on September 29, 1947 in a nation that came into existence barely six weeks before him. Not many people in the world who watched the birth of India gave it a chance as a democracy. The odds were stacked against Kapadia at birth because unlike the illustrious Parsis of Bombay, his father had grown up in a Surat orphanage and had worked as a lowly defense clerk. His mother Katy was a homemaker. The family could barely make ends meet but that did not weaken their robust values.
“My father taught me not to accept obligations from anyone, and my mother taught me the ethical morality of life,’’ Kapadia recalled at a Bombay Parsi Panchayet felicitation when he became CJI. Young Sarosh, however, had decided that he would make his own destiny. He wanted to become a judge and nothing else.
At the felicitation, Panchayet trustee Khojeste Mistree talked about his student days. Kapadia would walk down Narayan Dhabolkar Road in Mumbai, past the Rocky Hill flats, where a number of judges lived, and dream that one day he would progress from being an advocate to becoming a judge and have the honour of living in those very same salubrious surroundings, Parsi Khabar, an online community web site, reported Mistree as saying. Many years later, when Kapadia became a judge at the Bombay High Court, he always sat in court room number three on the ground floor, which perplexed many because as judges rose in seniority they also moved up the courthouse building. Kapadia revealed the reason why he was fond of the room when he was invited to tea at the Bar just before taking over as the Chief Justice of the Uttaranchal High Court in 2003. Early in his career as a low-grade employee, he used to end up at the Fountain area near the court for work. He didn’t have anywhere to go to spend his lunch break. For three years lunch often used to be a small cone of roasted chana (gram) and courtroom number three was the place to relax because it let in good breeze. A lawyer in Mumbai who was present says that Kapadia recalled how his interest in law was fuelled by the sessions in that courtroom.
Kapadia began his career as a grade four employee with Behramjee Jeejeebhoy where his main job was to deliver case briefs to lawyers. Behramjee Jeejeebhoy was the owner of seven villages in Bombay and had a lot of land revenue as well as a number of land-related disputes to settle. Those cases were handled by Gagrat and Company where a young lawyer, Ratnakar D Sulakhe, used to work.
“Sarosh used to come very regularly to our offices. That is how I first met him. He had a keen interest in law and I encouraged him to take it up,’’ remembers Sulakhe, who is now legal consultant with the Godrej group. Kapadia studied law and enrolled at the bar. By that time he had a keen grasp of issues related to land and revenue and began taking up such cases. As a junior lawyer, he quickly gained a reputation for his preparation and ability to cite authority while arguing. Kapadia then joined Feroze Damania, a feisty labour lawyer reputed to be partial to poor and marginalised people.
In 1982, Kapadia argued a case for people living in Ghatkopar, a suburb in Mumbai. The area was formerly salt pans and fell under the control of the Salt Commissioner. The commissioner had ordered summary eviction of about 3,000 tenements. Kapadia fought the case which resulted in a landmark judgement laying down the principle that governments cannot invoke summary eviction laws to throw out people when there is a genuine dispute on the title. “It was not about money. He was genuinely interested in the welfare of marginalised people,’’ a colleague who worked with him at Damania’s offices told Forbes India. He did not wish to be named.
The colleague says, at the time Kapadia became interested in Buddhist and Hindu philosophies, especially in the teachings of Ramana Maharishi, Swami Vivekananda and Ramakrishna Paramahansa. Later he became a frequent visitor to Belur Math on the banks of the Hoogly in Kolkata. A monk at the Math says he learnt meditation techniques. He has read everything about Ramakrishna and also what Swami Vivekananda wrote. Kapadia’s worldview is highly influenced by Indian thinkers but is also tempered by the observed realities of the modern world. It has also shaped his thinking as a judge who believes in continuous learning.
“What we need today in India as far as the judges are concerned is a scholastic living,” Kapadia said in December 2008. Delivering the JK Mathur memorial lecture in Lucknow, Kapadia went on to define the context of modern day justice and the legal profession. In that speech he said how important it was for judges to understand the various concepts in different fields, including economics and accountancy. Kapadia himself is a qualified accountant and has vast knowledge of economics. That came in handy in a case where Orissa’s tribals were pitted against a miner.
There were no jobs, hospitals or schools in the area the company wanted to mine. Kapadia analysed the accounts of the company to find out whether it could set aside a portion of profits for tribals’ welfare. He dissected the accounts segment-wise to discover a profit of about Rs 500 crore when without the standard of accounting the profit would be only Rs 15 crore.
“A judge sitting in tax matters knows the accounting standards. It helps us to decide matters in the context of socio-economic justice enshrined in the Constitution… This is where I emphasise the knowledge of the basic concepts.’’
A Mumbai lawyer who knows him from the time Kapadia was a lawyer and later judge, says that he has evolved into a complete jurist. Yet, the Chief Justice has not stopped learning.
In July 2011, the Supreme Court gave a verdict in a case involving limestone mining in Meghalaya’s East Khasi Hills by Franco-Spanish cement company Lafarge Umiam Mining. Almost a year-and-a-half before that, the company had been asked to stop mining by a Bench headed by Justice KG Balakrishnan. When the hearing resumed, Justice Balakrishnan had retired and Kapadia was presiding on the three-judge bench.
As Harish Salve began to argue for Lafarge, Kapadia realised that he did not know enough background. So he asked the senior lawyer to brief the court on the history of environmental jurisprudence. A stumped Salve said that would be like reading a textbook. To which Kapadia replied that he was a Bombay man who understood very little about environmental matters and would Salve not help the court? Every Friday for the next seven weeks the cavernous courtroom turned into a classroom where Salve elaborated on the evolution of environmental jurisprudence in India.
There are two qualities of Justice Kapadia that no one disputes— integrity and compassion.
“His humble beginnings are reflected in his outlook and judgements,’’ says senior lawyer Soli Sorabjee. “A litigant may feel disappointed if he loses the case but no litigant goes back [from Kapadia’s court] feeling he was not fairly or fully heard.’’
In his pursuit of flawless integrity, Kapadia has hermetically sealed himself. He even said in a speech that judges and lawyers should work like a horse and live like a hermit. When Forbes India sought to interview him for this profile, the CJ’s office said the strict code of conduct binding Supreme Court judges does not allow him to agree. Kapadia’s personal code of conduct is more severe. Retired Justice VR Krishna Iyer told Forbes India that he had gathered from his colleagues that he was too dignified to even meet other judges, rarely meets anybody at random and when he speaks he is taciturn.
Kapadia does not accept even official invitations if they fall on a working day. He once rejected an invitation to represent India at a conference of the Commonwealth Law Association in Hyderabad because it fell on a working day. On the first day in office as CJI, he cleared 39 matters in half an hour. Kapadia has practically dedicated his life to the profession, rarely taking holidays even.
During the first summer holidays after he became chief justice, Kapadia is said to have come to office everyday to streamline the SC registry.
According to several lawyers, the registry had deteriorated into a corrupt office where ‘bench hunting’ was common. Bench hunting is gaming the allocation process to make sure that a certain matter appears before a certain judge who the lawyer thinks will rule in a particular way. Kapadia has put an end to it and is now said to review the day’s board of case listings and pull up the SC staff if he finds something amiss. The CJ has also stopped out-of-turn mentioning of cases to be taken up urgently, which has caused some consternation among lawyers. Earlier, lawyers could request the judge while the court was in session to take up an unlisted matter because it was urgent. Now they have to file an urgency petition a day in advance. The system exists because there is a mountain of pending cases in the judicial system. And since the SC is the final authority, it gets overburdened. “It will not be long before we have a 100 judges in the SC,’’ says a lawyer. The SC currently has 30 judges, excluding the CJI. The Indian justice system had drawn a lot of flak over the past few years after the integrity of several past and sitting judges was questioned. But Kapadia defended the system in his Law Day speech last November.
“I am an optimist. I do not share the impression that judicial system has collapsed or is fast collapsing. I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system,’’ he said. He also said that the backlog of cases is not as huge as is made out to be. “Seventy-four percent of the cases are less than five years old,’’ he said and added that the focus is on quickly disposing of the rest of the cases.
Kapadia has certainly restored the confidence and pride in the Supreme Court of India.
“He will certainly be remembered for the landmark Vodafone decision,’’ says Percy Billimoria, senior partner at corporate law firm AZB and Partners. “Whenever anyone complains about the retrospective amendment of the tax law on this issue, I always retort by reminding them that the fact that the decision held that the government’s stand on a matter with such far reaching revenue implications was contrary to the law at the time shows that at least our judiciary is fair and independent.’’
By the time Kapadia hangs up his cloak and collar on September 29, he would have left an indelible mark on India’s judicial history. Former Justice VR Krishna Iyer told Forbes India: “While I have seen during the last 97 years of my life among good judges with great credentials, there was hardly anyone to compare with Kapadia the like of which no eye had seen, no heart conceived and no human tongue can adequately tell.’’
A commission to select judges will be an improvement on the collegium only if its members are of the highest standing
The Constitution of India operates in happy harmony with the instrumentalities of the executive and the legislature. But to be truly great, the judiciary exercising democratic power must enjoy independence of a high order. But independence could become dangerous and undemocratic unless there is a constitutional discipline with rules of good conduct and accountability: without these, the robes may prove arrogant.
It is in this context that Chief Justice S.H. Kapadia’s observations, at an event at the Supreme Court of India on Independence Day, underlining the need for the government to balance judicial accountability with judicial independence, have to be reconciled with what Law Minister Salman Khurshid observed about judicial propriety. It is this reconciliation of the trinity of instrumentality in their functionalism that does justice to the Constitution. A great and grand chapter on judicial sublime behaviour to forbid the “robes” becoming unruly or rude and to remain ever sober is obligatory.
The Constitution has three instrumentalities — executive, legislative and judicative. The implementation of the state’s laws and policies is the responsibility of the executive. The Cabinet headed by the Prime Minister at the Centre and the Cabinet led by the Chief Minister in the States, are its principal agencies. The rule of law governs the administration.
Parliament consisting of two Houses and legislatures at the State level make law. When the executive and the legislature do anything that is arbitrary, or contrary to the constitutional provisions, the judiciary has the power to correct them by issuing directions under Article 143. The Constitution lays down the fundamental rights, and if the States do not safeguard them, any citizen can approach the Supreme Court for the issue of a writ to defend his or her fundamental rights.
Thus, among the three instrumentalities, the judiciary has pre-eminence. But the judiciary itself has to act according to the Constitution and work within the framework of the Constitution.
Felix Frankfurter pointed out thus: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”
Judges are the ultimate authority in the interpretation of the Constitution, and so must be learned in the law and in the cultural wealth of the world. They play a vital role in the working of the Constitution and the laws. But how judges are appointed is a matter of concern. Simply put, the President appoints them, but in this the President only carries out the Cabinet’s decisions.
The Preamble to the Constitution lays down as the fundamentals of the paramount law that India shall be a socialist, secular democratic republic which shall enforce justice — social, economic and political — and ensure liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, and promote among them fraternity, ensuring the individual’s dignity and the nation’s unity and integrity.
Need for clarity
But who will select the judges, and ascertain their qualifications and class character? Unless there is a clear statement of the principles of selection, the required character and conduct of judges in a democracy may fail since they will often belong to a class of the proprietariat, and the proletariat will have no voice in the governance: the proprietariat will remain the ruling class.
Winston Churchill made this position clear with respect to Britain thus: “The courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased.”
We in India have under the Constitution the same weaknesses pointed out by Churchill, with the result that socialism and social justice remain a promise on paper. Then came a new creation called collegiums. The concept was brought in by a narrow majority of one in a 5-4 decision of the Supreme Court for the selection of judges. It was binding on the executive, the decisions of which in turn were bound to be implemented by the President.
Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own makes the selection. There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails.
In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone.
In these circumstances, the Union Law Minister has stated that the government proposes to change the collegium system and substitute it with a commission. But, how should the commission be constituted? To whom will it be answerable? What are the guiding principles to be followed by the Commission? These issues remain to be publicly discussed. A constitutional amendment, with a special chapter of the judiciary, is needed. Such an amendment can come about only through parliamentary action.
Surely a commission to select judges for the Supreme Court has to be of high standing. It must be of the highest order, of a status equal to that of the Prime Minister or a Supreme Court judge. The commission’s chairman should be the Chief Justice of India.
In the process of selection, an investigation into the character, class bias, communal leanings and any other imputations that members of the public may make, may have to be investigated. This has to be done not by the police, which function under the government, but by an independent secret investigation agency functioning under the commission’s control. These and other views expressed by outstanding critics may have to be considered.
The commission has to be totally independent and its ideology should be broadly in accord with the values of the Constitution. It should naturally uphold the sovereignty of the Constitution beyond pressures from political parties and powerful corporations, and be prepared to act without fear or favour, affection or ill-will. It should act independently — such should be its composition and operation. The commission should be immune to legal proceedings, civil and criminal. It should be removed only by a high tribunal consisting of the Chief Justice of India and the Chief Justice of all the High Courts sitting together and deciding on any charges publicly made. We, the people of India, should have a free expression in the commission’s process.
(V.R. Krishna Iyer, eminent jurist, is a former Judge of the Supreme Court of India)
- Judicial appointments & disappointments (thehindu.com)
- Accountability, independence can coexist, Centre tells CJI (thehindu.com)
- Lessons in judicial restraint (indialawyers.wordpress.com)
- SC slowly taking over Parliament: Katju (ibnlive.in.com)
- Disturbing trends in judicial activism (indialawyers.wordpress.com)
- Judicial freedom won’t be undermined by proposed law: Khurshid (thehindu.com)
TIMES OF INDIA
KOCHI: Fiat Justicia, an NGO working in the legal field, has approached the Kerala high court seeking a ban on strikes by lawyers. The strike by lawyers on July 11 and 12 led to gross miscarriage and delay of justice and is against the specific directions of the Supreme Court in the matter, the petition filed through advocate M R Hariraj said.
Lawyers in Kerala had stayed off courts on July 11 and 12 as a mark of protest against the High Education and Research Bill and alleging encroachment upon the functions of the Bar Council of India as well as the State Bar Councils by the ministry of human resources development. The decision to support the strike was adopted by the Bar Council of Kerala in a meeting of the state council and all bar associations on July 1.
According to the petition, the court must restrain lawyers from resorting to strike and impose penalty on those engaging in it. It is also alleged that the Centre, state and high court didn’t take any action to avert the strike. It resulted in adjournment of over 90% of cases and is a violation of the directions of the Supreme Court in various judgments, the NGO contends. The NGO also points out that a representation was made to the chief justice of India demanding initiation of suo motu proceedings against those who conducted the strike.
The high court should issue specific directions to lower judicial forums that fall under the high court’s administrative superintendence as the supreme court held in Harish Uppal vs Union of India case in 2003 that damage caused by illegal call for strike by lawyers to parties must be compensated by suo motu action by the concerned courts.
NEW DELHI: The Supreme Court may have declared in numerous judgments that speedy trial was intrinsic to right to life of an accused, but on Wednesday the court said it was apprehensive about fixing a time limit for completion of a criminal trial as it could be misused by intelligent criminals.
This comment came from a bench of Justices H L Dattu and C K Prasad during the hearing on a petition by advocate Ranjan Dwivedi, who has sought quashing of the trial proceedings against him in the L N Mishra murder case on the ground of inordinate delay saying the 37-year-long trial has blighted him personally, physically and socially.
Senior advocate T R Andhyarujina said Dwivedi was 27-year-old when the bomb blast at Samastipur railway station killed Mishra on January 2, 1975. The trial has dragged on for no fault of his, and now the accused is a frail 64-year-old. He said there was a grave danger of immense prejudice during the trial of Dwivedi as 31 of 39 defence witnesses cited by him to prove his innocence have died. As many as 22 judges have handled the trial at various stages.
“It is a unique case. The apex court has declared that right to speedy trial was a requirement under Article 21 guaranteeing right to life. But, the trial has dragged on for 37 years. In 1992, the Supreme Court had directed day-to-day trial in this case for a speedy conclusion. Two decades later, we are no where near the end,” Andhyarujina said.
“Whether the accused would get convicted or acquitted is immaterial. The question important here is whether any judicial system would tolerate such inordinate delay? Should the Supreme Court allow it to continue any more,” he added.
The bench said there was no denying that delay had been frequent in the judicial system in India. “Delay will continue to happen given the system we have. Delay definitely affects the trial but can the Supreme Court fix a time limit for completion of a criminal trial. The SC had earlier in a judgment specifically struck down fixation of a time limit for completion of trial,” it said.
“It is a unique case. But if we quash the proceedings, we may be sending a wrong signal, which may be used by an intelligent accused at a later date. We do not want this to happen because of our order,” the bench said.
The court was apprehensive that if a time limit was fixed on the trial, then an unscrupulous accused could deliberately delay the trial by challenging every order against him in higher courts and thus designed delay the trial to seek its quashing after a decade or so.
The bench said since the trial has reached the fag end after dragging for nearly four decades, it could ask the trial court to complete it in the next three months by holding proceedings on a day-to-day basis refusing adjournment on any ground to the accused and prosecution. It asked Andhyarujina and additional solicitor general Harin Raval to give their views to expeditious completion of the 37-year-long trial by Thursday.
Role of Ananda Marg was suspected in the case, and several people were arrested. The chargesheet was filed against several people, including Dwivedi. The trial was transferred to Delhi by the Supreme Court in December, 1979, after the attorney general alleged that Bihar government was interfering with the trial. Charges were framed against the accused in 1981. Dwivedi was granted bail in 1978.
In a democracy, the remedy for a malfunctioning legislature and executive must come from the people, not the judiciary
It is evident that the Pakistan Supreme Court has embarked on a perilous path of confrontation with the political authorities, which can only have disastrous consequences for the country. Recently its Chief Justice said that the Constitution, not Parliament, is supreme. This is undoubtedly settled law since the historical decision of the U.S. Supreme Court in Marbury vs. Madison (1803).
The grave problem, however, that courts are often faced with is this: on the one hand, the Constitution is the supreme law of the land and, on the other hand, in the garb of interpreting the Constitution, the court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.
The solution was provided in the classical essay “The Origin and Scope of the American Doctrine of Constitutional Law” published in 1893 in the Harvard Law Review by James Bradley Thayer, Professor of Law at Harvard University. It elaborately discusses the doctrine of judicial restraint. Justices Holmes, Brandeis, and Frankfurter of the U.S. Supreme Court were followers of Prof. Thayer’s philosophy of judicial restraint. Justice Frankfurter referred to Thayer as “the great master of Constitutional Law,” and in a lecture at the Harvard Law School said: “If I were to name one piece of writing on American Constitutional Law, I would pick Thayer’s once famous essay, because it is a great guide for judges, and therefore the great guide for understanding by non-judges of what the place of the judiciary is in relation to constitutional questions.”
The court certainly has power to decide constitutional issues. However, as pointed out by Justice Frankfurter in West Virginia State Board of Education vs. Barnette 319 U.S. 624 (1943), since this great power can prevent the full play of the democratic process, it is vital that it should be exercised with rigorous self restraint.
Separation of powers
The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution, and the three organs of the State, the legislature, the executive, and the judiciary, must respect each other, and must not ordinarily encroach into each other’s domain, otherwise the system cannot function properly. Also, the judiciary must realise that the legislature is a democratically elected body, which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.
Apart from the above, as pointed out by Prof. Thayer, judicial over-activism deprives the people of “the political experience and the moral education and stimulus that comes from fighting the problems in the ordinary way, and correcting their own errors”.
In Asif Hameed vs. The State of J&K, AIR 1989 S.C. 1899 (paragraphs 17 to 19), the Indian Supreme Court observed: “Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive, and judiciary have to function within their own spheres demarcated in the Constitution. No organ can usurp the function of another. — While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.”
Judicial restraint is particularly important for the Supreme Court for two reasons:
(1) Of the three organs of the state, only one, the judiciary, is empowered to declare the limits of jurisdiction of all three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self restraint.
(2) The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors.
Some people justify judicial activism by saying that the legislature and executive are not properly performing their functions. The reply to this argument is that the same charge is often levelled against the judiciary. Should the legislature or the executive then take over judicial functions? If the legislature and the executive do not perform their functions properly, it is for the people to correct them by exercising their franchise properly, or by peaceful and lawful public meetings and demonstrations, and/or by public criticism through the media and by other lawful means. The remedy is not in the judiciary taking over these functions, because the judiciary has neither the expertise nor the resources to perform these functions.
In this connection I may quote from an article by Wallace Mendelson published in 31 Vanderbilt Law Review 71 (1978): “If, then, the Thayer tradition of judicial modesty is outmoded, if judicial aggression is to be the rule, as in the 1930s, some basic issues remain:
“First, how legitimate is government by Judges? Is anything beyond their reach? Will anything be left for ultimate resolution by the democratic process, for, what Thayer called ‘that wide margin of considerations which address themselves only to the practical judgment of a legislative body representing (as Courts do not) a wide range of mundane needs and aspirations?’
“Second, if the Supreme Court is to be the ultimate policy making body without accountability, how is it to avoid the corrupting effects of raw power? Also, can the Court satisfy the expectations it has aroused?
“Third, can nine men [the Supreme Court Judges] master the complexities of every phase of American life? Are any nine men wise enough and good enough to wield such power over the lives of millions? Are Courts institutionally equipped for such burdens? Unlike legislatures, they are not representative bodies reflecting a wide range of social interest. Lacking a professional staff of trained investigators, they must rely for data almost exclusively upon the partisan advocates who appear before them. Inadequate or misleading information invites unsound decisions.
“Finally, what kind of citizens will such a system of judicial activism produce, a system that trains us to look not to ourselves for the solution of our problems, but to the most elite among elites: nine Judges governing our lives without political or judicial accountability? Surely this is neither democracy nor the rule of law.”
In Marbury vs. Madison (1803), Chief Justice Marshal, while avoiding confrontation with the government of President Jefferson, upheld the supremacy of the Constitution. Another example is the very recent judgment of U.S. Chief Justice John Roberts in the Affordable Healthcare Act case, in which he basically followed the doctrine of judicial restraint.
In Divisional Manager, Aravali Golf Course vs. Chander Haas (2006) the Indian Supreme Court observed: “Judges must know their limits and not try to run the government. They must have modesty and humility and not behave like Emperors. There is broad separation of powers under the Constitution, and each of the organs of the state must have respect for the others and must not encroach into each other’s domain.” A similar view was taken in Government of Andhra Pradesh vs. P. Laxmi Devi.
New Deal legislation
A reference may usefully be made to the well known episode in the history of the U.S. Supreme Court when it dealt with the New Deal legislation initiated by President Franklin Roosevelt soon after he assumed office in 1933. When the overactive court kept striking down this legislation, President Roosevelt proposed to pack the court with six of his nominees. The threat was enough, and it was not necessary to carry it out. In 1937, the court changed its confrontationist attitude and started upholding the legislation (see West Coast Hotel Vs. Parrish). “Economic due process” met with a sudden demise.
The moral of this story is that if the judiciary does not maintain restraint and crosses its limits there will be a reaction which may do great damage to the judiciary, its independence, and its respect in society.
It is not my opinion that a judge should never be activist, but such activism should be done only in exceptional and rare cases, and ordinarily judges should exercise self restraint.
In Dennis vs. U.S. (1950), Justice Frankfurter observed: “Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardised when Courts become embroiled in the passions of the day, and assume primary responsibility in choosing between competing political, economic, and social pressures”.
The Pakistan Supreme Court would be well advised to heed these words of wisdom, even at such a late stage.
(Justice Markandey Katju is chairman of the Press Council of India.)
Justice Dalveer Bhandari, a judge of the Supreme Court of India, was elected a fortnight ago by the United Nations General Assembly and Security Council, to serve as a Member of the International Court of Justice (ICJ). He defeated the Filipino nominee, Justice Florentino Feliciano, by a handsome margin and now has a six-year first term at the World Court. Justice Bhandari is undoubtedly a fine judge with considerable expertise in international law. His legal acumen, keen intellect and a sense of justice, especially for the poor and homeless that shines through in his domestic judgments, are qualities that make him an ideal representative of India, itself a beacon of democracy and human rights in the developing world. That India has made a good choice is not in doubt; whether it could have made a better choice, as some have suggested, is contestable though ultimately a moot point. The key issue that arises in this context relates to the fact that Justice Bhandari’s nomination by the Government of India and eventual election to the ICJ took place while he continued to serve as a judge of the Supreme Court of India. This raises grave and disturbing issues regarding the independence of the judiciary in India and points to the lowered standards of propriety in the highest echelons of governance.
Judiciary & government
The independence of the judiciary is a significant legal principle in India, ever since it was held to be part of the basic structure of the Constitution. Since then it has been used on several occasions by the Supreme Court most notably to judicially lay down norms regarding the appointment of judges, transfer of judges between High Courts and administratively with regard to claiming exemption for the office of the Chief Justice of India from the purview of the Right to Information Act and formulating an internal code of conduct for appropriate judicial behaviour. The extensive (and sometimes unwarranted) usage of judicial independence as a legal principle has however blighted its primary status as a normative principle of good governance which promotes impartiality, a key facet of fair adjudication. The judiciary must not only be independent of the co-ordinate wings of government as well as the parties before the case, but must also be seen to be so. The slightest doubt in the public mind of excessive proximity between the judiciary and the government, which is the largest litigant before it, may lead to significant apprehensions of a lack of impartiality thereby questioning the legitimacy of the entire adjudicatory setup. As the Supreme Court of India itself likes repeating in its judgments, “Judges, like Caesar’s wife, must be above suspicion.”
It is this test of judicial independence as a normative principle that Justice Bhandari’s actions fail to satisfy. From available records, Justice Bhandari’s candidacy was accepted by the Ministry of External Affairs after a recommendation to this effect in January 2012 by the Indian Chapter of the Permanent Council of Arbitration, whose advice in this matter, the government has traditionally honoured. From that time, up to the election at the United Nations in April, Justice Bhandari continued as a serving Supreme Court judge, hearing cases (from the Supreme Court causelist record, he heard cases till the 9th of April) and being party to delivered judgments (the last recorded judgment thus far being delivered on the 27th of April, authored by Justice Dipak Misra, his brother Judge on the Bench).
Though his resignation is not a matter of public record yet (the website of the Supreme Court continues to show him as a serving judge at the time of writing of this piece), it is believed that it became effective only on his election to the ICJ. During the same time, as the Ministry of External Affairs’ response to a RTI petition on 8th February 2012 shows, the government was actively lobbying for his candidature in the United Nations, speaking on his behalf to various member states. Even if it is assumed that Justice Bhandari had little or no contact with the government in this process, the very fact that the government, a regular litigant in Justice Bhandari’s courtroom was actively espousing his cause outside it, is gravely problematic in terms of judicial independence conceptualised as a principle of good governance leading to impartiality.
Unheeded lessons from the past
It is not however the case that Justice Bhandari’s failure to resign as a judge of the Supreme Court prior to the government making him its official nominee for election to the ICJ is an isolated incident of judicial independence being imperilled at the altar of individual ambition. Justice Subba Rao’s acceptance of his candidature for President of India by the opposition parties when he was Chief Justice of India is the most egregious example of the independence of the judiciary being threatened by a single individual. Equally pertinently in the present context, the election of the last Indian to serve on the ICJ, the then Chief Justice of India, R.S. Pathak (who incidentally relinquished office as Chief Justice only subsequent to his election to the ICJ), was marred by strong claims that Justice Pathak’s appointment was part of a quid pro quo involving Union Carbide Corporation, the Government of India and the Supreme Court with the Pathak Court endorsing a deeply flawed settlement in the aftermath of the Bhopal gas tragedy. It is disappointing that Justice Bhandari as an upright individual and a learned judge failed to pay adequate heed to these lessons of history and relinquish his judicial office before accepting a nomination by the Government of India.
What is equally disappointing is the lack of public outcry regarding this issue. When Justice Subba Rao accepted the candidature for President made to him by the opposition parties while still in office, a man no less than Motilal Setalvad, India’s first Attorney General, issued a statement to the press strongly condemning the Chief Justice’s decision, saying that “he has set at naught traditions which have governed the judiciary in our country for over a century.” Justice Pathak’s nomination to the ICJ was the subject of several scathing indictments, including by former Supreme Court judge, Justice Krishna Iyer who wrote of “the beholdenness of the candidate [Pathak] to the litigant government for getting the great office for him.” As far as Justice Bhandari’s nomination is concerned, except a public interest petition challenging it as a violation of judicial independence, there has been a seemingly all-pervading public silence. Even the petition itself, though well-intentioned, was misguided, seeking redress from the Supreme Court in a matter which was characterised by impropriety rather than illegality of a type a judicial order could rectify. Justifiably, the Court refused to entertain it.
Importance of propriety
In an age of multi-billion rupee scandals, endemic corruption and food shortages caused by governmental apathy and inaction, the impropriety of a judge failing to resign at an appropriate time may intuitively seem trivial. But as with most questions of impropriety, though its effects may not be immediately apparent, they are the portents of an insidious decline in the standards and values that define institutions.
For the Supreme Court of India, judicial independence has been the cornerstone of its functioning from the time of its inception. Despite a few challenging periods, the Court, the Bar and the conscientious members of the political classes have always striven to fiercely guard the independence of the judiciary from any potential threats. The Bhandari episode is however a bellwether of a possibly developing relationship of cosiness between government and the judiciary, accompanied by a general public indifference, bordering on acquiescence, of such a relationship.
The government’s decision to nominate a sitting judge before whom it continued to appear as a litigant, Justice Bhandari’s decision to not resign when the government was lobbying for him, and most crucially public acceptance of such an unholy nexus are warning signs that ought to be heeded. While the return of an Indian to the World Court after an absence of two decades rightfully gives cause for celebration, it provides an equally significant opportunity for introspection, that the cherished principle of judicial independence, responsible in the first place for the high esteem in which the Indian judiciary and its judges are held on the world stage, does not itself fall into desuetude in the process.
(Arghya Sengupta is a Stipendiary Lecturer in Administrative Law at the University of Oxford and the founder of the think-tank, The Pre-Legislative Briefing Service.)
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Our judiciary creaking under the seemingly impossible load of cases awaiting disposal needs urgent attention if we have to avoid collapse of the system, which could put in jeopardy the whole state of orderly society.
Law courts no longer inspire public confidence, as litigants only get increasingly distant dates for their next hearings each time they approach them. The proverb “justice delayed is justice denied” too seems inadequate to describe the prevailing circumstances. Judgments come after endless wait, which ensures there is rarely any sense of satisfaction or justice. As pending cases pile up, the judicial system is not in a position to meet the challenge of arrears that have swamped courts from top to bottom.
According to the latest statistics available from the Supreme Court’s report on vacancies and pending cases, the apex court has now run up a backlog of 56,383 cases — the highest figure in a decade. The situation is similar in the country’s 21 high courts, where 42,17,903 cases are awaiting disposal. In lower judiciary, which constitutes the base of the entire judicial pyramid, the total number of such cases stood at 2,79,53,070 at the end of March 2011. And these figures do not include the cases pending in various tribunals and other quasi-judicial bodies. If those were also added to the grand total, the arrears in lower courts would well cross the figure of 3 crore, which is alarming, to say the least.
The right to fair and speedy trial holds little promise for the aggrieved who knock at the door of courts as a last resort for justice or relief. Invoking the law seems to mean only wasted years, heavy financial burden, besides emotional and physical trauma. Prolonged delays also mean high rate of acquittal in criminal cases — it is as high as 93.02 per cent in India. Unable to get justice from courts, victims often take the law into their own hands to settle scores with culprits. This only multiplies the problem of law and order, and in turn the load on courts. It has also encouraged kangaroo courts in the form of khap panchayats or lynch mobs in many parts of the country, which mete out rough-and-ready justice on the spot. The painfully slow justice delivery system also leads to corruption and lack of investment in vital economic spheres owing to uncertain contract enforcement, higher transaction costs and general inflationary bias, which the finance minister has also acknowledged.
TOO FEW JUDGES
Among other issues, inadequate judge strength at all levels is the main factor behind the delay and the resultant backlog. In proportion to its population, India has the lowest number of judges among the major democracies of the world. There are 13.05 judges per 1 million people, as against Australia’s 58 per million, Canada’s 75, the UK 100, and the USA 130 per million. In 2002, the Supreme Court had directed the Centre to raise the judge-population ratio to 50 per million in a phased manner, as recommended by the Law Commission in its 120th report. The suggestion has had little effect.
Even the existing judge strength is reduced further when judicial vacancies are not filled promptly. For instance, the Supreme Court had only 26 judges in October last year, including the Chief Justice of India, against the sanctioned strength of 31. The vacancy level in the 21 high courts of the country, if put together, is 32 per cent, with 291 posts of judge — against the sanctioned strength of 895 — lying vacant for a long time.
In subordinate courts, where we have the maximum backlog of cases, there are 3,170 posts vacant. The sanctioned strength of district judges has gone up to 17,151, according to the Supreme Court’s report on vacancies and pending cases. Filling these vacancies will have a direct impact on India’s governance indicators, improving investor sentiment and advancing economic growth.
If we look into the World Bank Institute‘s Governance Matters set of indicators specifically for rule of law, India had a percentile rank of 54.5 in 2010 (coming down from 60.3 in 2000), which compares ill to 97.2 for the Netherlands, 91.5 for the US, and 81 for South Korea. Other World Bank documents, quoting market analysts, say that it is not unusual for the first hearing in Indian courts to take six years, and the final decision up to 20 years.
SPEED UP SELECTION
The power of appointment to top judicial posts is vested in a collegium of senior judges, with the executive virtually playing second fiddle. Apart from being opaque, the system has simply failed to deliver. It is not uncommon for higher courts to remain without their full strength for months, or even more. The selection process, therefore, ought to be speeded up. Whenever a vacancy is expected to arise, steps should be initiated well in advance and the process of appointment completed beforehand. In the case of resignation or death, the selection process should come into play without delay to ensure that the Benches work with full strength. And, if the wholesome principle of merit, enunciated by the Law Commission, is accepted in principle, there is no reason why there should be any delay in determining appointments or filling vacancies.
Also, unless the judiciary is given full financial autonomy, the problem of pendency of cases or non-appointment of judges will persist. Funds are required for creating new posts of judge, increasing the number of courts and providing infrastructure. The judiciary has to petition the Law Ministry each time it needs finances, which are forever hard to come by. Less than 0.3 per cent of the Gross National Product (GNP) — or 0.78 per cent of the total revenue — is spent on the judiciary in India. This, when more than half of the amount is being generated by the judiciary itself through court fees and fines. In the UK, USA and Japan, the expenses on judiciary are between 12 and 15 per cent of the total expenditure.
Together with adequate manpower, it is imperative to simplify and reform the current procedural laws which provide ample scope to obstruct and stultify the legal process. Though of colonial antiquity and Kafkaesque obscurity and cumbersomeness, these laws have somehow survived despite their comicality in today’s eco-friendly and “paperwork unfriendly” times, a sure way to delay disposal of cases. In addition, there are myriad laws and other specious requirements, which have no relevance today, yet are frequently invoked. These must be repealed to expedite the judicial process. “Court procedure is not to be a tyrant but a servant, not an obstruction but an aid to justice, a lubricant and not a resistant in the administration of justice,” the Supreme Court has observed. After all, procedures are meant to help the law, not defeat it.
Impelled by the motivation of pecuniary gains, lawyers often indulge in unethical practices of stalling court proceedings deliberately. At every stage, a number of interlocutory applications are filed and adjournments on flimsy grounds sought to defeat the purpose of speedy dispensation of justice. Such is the situation that even expansion of the judicial machinery will not achieve much until rules about stay orders and adjournments are also changed to prevent lawyers from prolonging litigation. In addition, punitive fines should be imposed on unscrupulous litigants found to be abusing the process of law to discourage unnecessary or frivolous litigation and to make the judiciary self-supporting.
Instead of arguing their cases endlessly, it would be better for lawyers to present their submissions in writing to the judge so that cases could be decided on merit on the basis of documents and written submissions filed by both the parties before the judge, without the fanfare of formal court sessions and personal attendance of petitioners, respondents and lawyers. Direct written representation by the parties, rather than oral arguments spoken in the din and bustle of crowded courtrooms, would also lower the risk of miscarriage of justice. This practice, followed in the US Supreme Court (where oral arguments serve as additions to the obligatory written brief), can be easily adopted in Indian courts. Constitutional and corporate matters have little scope for courtroom histrionics.
Judges also ought to exercise restraint against the temptation of writing lengthy judgments running into several hundred pages, incorporating their social, political, economic and philosophical beliefs. The judge’s time is most precious and is paid for from the taxpayers’ money, and should not be wasted in expounding one’s personal ideologies. Justice, equity and fair play demand that judges are more crisp and precise while writing their judgments rather than rely on lengthy quotes and superfluous observations. They should deliver judgments as early as possible, instead of keeping them reserved for long durations.
AIM FOR CONCILIATION
The legal strategy for modern India should aim at conciliation and not confrontation, in keeping with our tradition of tolerance and mutual accommodation. The focus should be on “conciliatory legal realism”. A judge should not merely sit like an umpire, but participate in the efforts to iron out differences and encourage the parties to arrive at a settlement. This would help reduce the backlog of cases, avoid the multi-tier process and also lead to reconciliation of legal disputes without causing much enmity and bitterness.
However, any attempt at judicial reform, including raising the number and strength of courts, improving the selection process of judges or setting up evening and fast-track courts throughout the country to dispose of cases quickly will fail unless high courts succeed in establishing that they are reliable and just, and instil such confidence in litigants that they forgo the last resort of the apex court, except in rare cases. At the same time, if the trial courts at the grassroots level are also properly strengthened and made effective instruments of justice in the real sense, the cycle of appeal and counter-appeal could be broken and delay reduced. The litigation backlog would then melt like an iceberg in a tropical sea.
The writer is a legal consultant, and advocate at the Delhi High Court and the Supreme Court
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