Courtesy , The Hindu
The following is the full text of the Address by the Chief Justice of India, K.G. Balakrishnan on the eve of the National Law Day. November 26 is celebrated as National Law Day because it was on this day in 1949 that the Constituent Assembly of India adopted the Constitution, which then came into effect on January 26, 1950.
My Fellow Citizens,
I extend my warmest greetings to all of you on the eve of the 60th Law Day of our country. The legal and judicial fraternity of our country, as well as people at large, celebrate November 26 of each year as National Law Day because it was on this day in 1949 the Constituent Assembly of India had adopted our Constitution, which subsequently came into effect on January 26, 1950.
Law Day is an occasion on which we pay our humble tribute to the unique vision and genius of the framers of our Constitution. It prompts us to reflect upon and renew our pledge to protect, preserve and extend the values enshrined in our Constitution. The very first goal of the Constitution, is to secure justice to all — social, economic and political. This mandate not only shapes the rights of the people but also serves as a command to all those who wield authority in the name of the State. As the head of the Indian judicial system, it is my duty to keep the nation informed about the state of affairs in this branch of government.
An independent, accessible and efficient justice-delivery system is a pre-requisite for maintaining healthy democratic traditions and pursuing equitable development policies. In the last six decades Indian courts have played a leading role in protecting constitutional values and upholding the rule of law in our country. The vital social role of the courts has been strengthened by the creative reading of ideas such as ‘equal protection before the law’ and ‘personal liberty’. Especially with the evolution of the Public Interest Litigation (PIL) movement over the last three decades, the understanding of rights has expanded in many directions. From conferring guarantees of a civil-political nature, the fundamental rights have been interpreted to include positive socio-economic obligations on the State. This means that the courts of law are unique spaces where just solutions are devised, in spite of the socio-economic inequalities between the litigants.
India is a diverse country where we are still grappling with social stratification and discrimination on the grounds of caste, religion, gender, language, race and ethnicity among other factors. Conflicts that arise out of such identity-based differences or those related to the distribution of material resources are often very complicated since they involve multiple interest groups. Adjudicating such disputes often calls for a departure from the norm of adversarial litigation and the judges have accordingly devised procedural innovations to respond to the needs of litigants. This means that the role of a judge is not only that of applying the existing rules in a mechanical manner but also interpreting them in a creative manner in order to pursue the ends of justice.
I am deeply gratified by the trust and confidence that the people of this country repose in our judicial system. About 1.8 crore fresh cases had been filed in Indian courts in 2008, reflecting a steady increase in the rate of institution of fresh proceedings over the years. Against this, approximately 14,000 judges disposed of about 1.7 crore cases in 2008, demonstrating a disposal rate of about 1,200 cases per year by each judge. This was achieved notwithstanding the severe shortage of judges and their very heavy work load, abysmal infrastructure and a very challenging environment.
In all, Indian courts processed some 4.8 crore cases in 2008 — which is one of the largest volume of cases faced by any national judicial system in the world. Expert studies have suggested that our judicial strength is only very minimal and large expansion is required to dispose of this case-load. It is therefore quite natural that most cases take several years to be completed. Such is the shortage of judicial officers that, on average, an Indian judge has a total of about 25 minutes to devote to each case.
A significant consequence of the severe shortage of judges is that a substantial number of poor people are unable to obtain the protection of courts to preserve and strengthen their rights. This ‘docket exclusion’ does not bode well for the country as affected people may turn to alternative (including violent) means for securing their rights. On the contrary, there is an urgent need to promote ‘docket inclusion’. There is also a widespread perception that many people are being deterred from approaching the courts on account of apprehensions about undue delay in the delivery of justice. This may indeed be true in some parts of the country where the number of civil cases being instituted are very low in proportion to their respective population-levels. Therefore, any meaningful agenda for judicial reforms must account for the twin problems of high pendency levels as well as the limited access to justice for some sections of society.
This means that even as we devise strategies to combat the existing backlog, we must also prepare for the further expansion of court dockets in the coming years. With gradual improvements in development indicators such as income-levels, access to education and healthcare, we should expect the previously marginalized sections to approach the judicial system in larger numbers, enhancing “docket inclusion”.
In many cases, the undue delay in disposal is a consequence of hurdles placed in the procedural steps involved in litigation. In the course of a legal proceeding, there is a likelihood of delay at various stages from the service of notice upon the parties, the framing of issues, submission of pleadings, examination of witnesses, production of documents and the counsels’ arguments. If a party apprehends an adverse result, there is a tendency on part of litigants or practitioners to place obstacles in these proceedings. The logical response to this endemic problem is that judges need to be more proactive in managing the flow of proceedings before them. Attempts to delay the proceedings should be treated firmly but it must also be kept in mind that the desire to improve procedural efficiency should not compromise the quality of justice being delivered. As inheritors of the common-law tradition, we are bound to follow the principles of natural justice, namely that ‘no man shall be a judge in his own cause’, that ‘no persons shall be condemned unheard’ and that ‘every order will be a reasoned order’.
Even though the judges are the main actors in the justice-delivery system, their efficiency is closely related to the behaviour of advocates, litigants, investigating agencies and witnesses among others. While public scrutiny is rightly being directed towards the performance and accountability of judges, there is also a need to examine the responsibilities of all the other participants in the judicial system. In particular, there is an urgent need to tackle the institution of frivolous claims and the giving of false evidence. Judges can perform their fact-finding and adjudicatory roles in a satisfactory manner only if they receive the co-operation of all the stakeholders. In this sense, the judicial function is as much a collective enterprise as the other wings of government.
A meaningful shift will only occur if attitudes change among the bar. Ultimately it is the responsibility of legal practitioners to advice their clients on the suitability of resorting to litigation. For resolving many categories of disputes, adversarial courtroom litigation is not appropriate since disputes can be amicably resolved at the pre-trial stage. With the objective of promoting awareness about these methods, full-time Mediation Centres have been established in the various High Courts as well as some of the District Courts. Their function is to not only provide mediation services but also to impart training about the same.
I must also emphasize that a large portion of the increase in litigation rates can be attributed to stronger remedies that have been introduced through Central and State legislations over the years. In particular, our trial courts are confronted with a disproportionate number of cases involving the dishonour of cheques, motor accident compensation claims, domestic violence and corruption-related cases. This is of course a natural consequence of the fact that litigant-friendly procedures and remedies were incorporated to address such grievances. Hence, there has been an incentive for parties to come forward and file cases in these categories. However, there has not been a commensurate increase in the strength of judges needed to decide these cases.
In recognition of this fact, the strength of the Supreme Court and the various High Courts has been gradually increased. However, it is the strength of the subordinate courts which calls for a drastic increase. I have repeatedly called for targeted interventions by way of increasing the strength of the subordinate judiciary, while emphasizing the need for establishing more Family Courts, CBI Courts and specialised magistrates’ courts. In recent months, a lot of attention has been drawn to the proposal for establishing ‘Gram Nyayalayas’. Under the Gram Nyayalayas Act, 2008 judicial officers of the rank of Civil Judge (Junior Division) will be appointed to function at the block-level. The intent of course is to bring the justice-delivery system closer to rural citizens who have to otherwise travel to distant district centres. It is estimated that nearly 5,000 judicial officers will be needed to occupy these positions.
Since 2007, some important steps have been taken to improve the quality of justice-delivery. Hundreds of judicial conferences have been organized through the National and State Judicial Academies as well as National and State Legal Services Authorities on the topic of delay and arrears reduction as well as enhancing timely justice to raise awareness about the problem and develop effective strategies. There has been substantially increased attention to the use of Alternate Dispute Resolution (ADR) techniques, in particular mediation and Lok Adalats. A system of planning and management is being developed and recommended to High Courts for their consideration. A National Judicial Infrastructure Plan, A National Judicial Education Strategy and a National Mediation Plan have been developed and are in different stages of implementation. The results of these massive initiatives have been encouraging. Reversing earlier trends, filing of new cases as well as disposal has gone up at the national level. However, aggregate pendency has increased because the increase in filing has been faster than the rate of disposals in general.
I must also comment on the importance of Legal Aid programmes, especially those which seek to impart legal literacy in remote and backward areas. We must acknowledge that access to legal education is still confined to a privileged few and that the existing pool of judges and lawyers is not adequate to bring about the changes that we desire. In recognition of this fact, a Committee headed by a sitting Supreme Court judge has been recently appointed to oversee the training of motivated young individuals as paralegals, who can then expand the reach of the legal aid programmes. We are also in the process of designing a project dedicated to the improvement of access to justice in the North-Eastern region of our country. It is our hope that improved awareness and access to legal remedies will help in mitigating the socio-political conflicts in troubled areas.
Efforts are also being made to incorporate Information Technology (IT) based solutions in order to strengthen the judicial system. Under the E-Courts project, most judicial officers in the country have been provided with computers, printers and access to legal databases. Steps are also being taken to digitize precedents as well as the permanent records of courts at all levels. At present the daily cause-lists, orders and judgments of the Supreme Court and the respective High Courts are freely available online through the Judgment Information System (JUDIS). In the coming years, the objective is to ensure that materials pertaining to all subordinate courts as well as tribunals will also be made freely available through this system.
Another important element of judicial reforms is that of organising educational programmes, which are held at the National Judicial Academy (Bhopal) and the various State Judicial Academies. These programmes are periodically held for the benefit of sitting judges from all levels. They are designed to raise awareness about the latest legal developments as well as the strengthening of skills for court-management, research and writing. Special efforts are made to sensitise judges to the complex interactions between law and social realities. These programmes also serve as a common forum for judges serving in different parts of the country to interact and learn from each others’ experiences.
Recently, the Union Minister for Law and Justice has also unveiled some proposals for systemic reforms. There are plans to establish a ‘National Arrears Grid’ which will compile reliable statistics on the institution, disposal and pendency of cases at all levels. The top law officers of the Central Government have also resolved to reduce the extent of litigation which involves governmental agencies. A ‘National Litigation Policy’ is being designed wherein administrative remedies will be strengthened in order to reduce the burden before the courts. A comprehensive legislation dealing with the subject of standards and accountability in the higher judiciary is also on the anvil.
To conclude, I would like to extend my heartfelt gratitude to all my colleagues who are serving at the various levels of the judicial system. I hope that they will all strive to uphold the high standards of dignity and integrity that are expected from anyone who holds a judicial office. I must also place on record my gratitude to the administrative staff members who have been working hard to keep pace with the increasing case-load. Like any public institution, the quality of justice-delivery also depends on the trust and confidence of the larger public. We rely on an active bar, a free press and a vigilant citizenry to point out our unintended mistakes so that we can improve our functioning. I sincerely hope that the dialogue between the judiciary and the various stakeholders in our society continues to take place in a cordial and constructive manner.