LAW RESOURCE INDIA

“When an Institution No Longer matters, we no longer matter.”

Supreme Court of India

Chief Justice of India Shri S H Kapadia- Speech on the ocassion of Law Day 2011

We have assembled today to celebrate the anniversary of a momentous event, the anniversary of the adoption of our Constitution, the day on which our founding fathers subscribed to this document by signing the same and thereby unfolding the philosophy – social, economic and political, for the governance of free India. We have every reason to be proud of and to celebrate that unique occasion. We take this opportunity to thank the founding fathers, for this document, who spent a good deal of their time and energy in giving shape to this suprema lex which was to guide the future destination of the country. We are ever grateful to them. The foremost reason why we are proud of our Constitution is that it promises governance through the Rule of Law. While in many countries which initially opted for a democratic form of Government the euphoria lasted for brief spells, we are of the view that in our country, notwithstanding its complexity, democracy has stabilized and democratic institutions have flourished. The survival of democracy in India has left many bewildered.

The socio-economic transformation – a welfare State and an egalitarian society as its objective – must also be through the process of law. It is true that such desired socio-economic transformation through process of law has been slow, however, the march has been steady. Today, rule-specific laws are being substituted by rights-specific laws (RTE, RTI, Food Security Bill). These socio-economic legislation requires a paradigm shift in the matter of interpretation of Article 14, Article 21 and Article 19(1)(g) of the Constitution. Courts have come from formal equality to egalitarian equality to the concept of Deprivation.

 Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of the Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution. Awareness about rights has grown while correspondingly redressal from the Executive has been reduced. The Executive has its own compulsions – huge population, lack of resources, high inflation, global economic region etc. As a consequence litigation has multiplied. Despite commendable achievements in terms of disposal which I will presently demonstrate, the challenge is and should be for Zero Pendency in which direction a lot needs to be done.

Today, the crisis of confidence in human institutions has come to the forefront. The deficiency of every institution in tackling the growing and complicated social problems has become a common feature. It is a challenge for every institution. Every democratic institution needs to meet this challenge. The viability of judicial institutions depends upon their acceptability by the people. When the viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by restoring its credibility and people’s faith in it. Thus, the foremost challenge to the

Judiciary today is viability of the system. Citizens approach the Court only when there is confidence in the system and faith in the wisdom of the Judges. This is where the Public Trust doctrine comes in. The Institution stands on public trust.

 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. This is no justification to discard the system by giving it bad name. Judiciary has performed a commendable job, which is indicated by the Status Report. Before reading the statistical data, let me say that there is a need to highlight that all the stakeholders are accountable for maintaining and achieving standards of Court Excellence. The general tendency is to put the entire blame on the Judges.

The executive including the police and the Bar have an important role to play in expeditious disposal of cases. There is a backlog of cases, however, it is not as big as is sought to be projected. Please note that 74% of the cases are less than five years old. The focus: expeditious disposal of 26% of cases which are more than five years old i.e. “Five plus free” should be the initiative.

CONCLUSION :

B. R. Ambedkar delivering a speech to a rally ...

Image via Wikipedia

India is an aspirational democracy. It is the shared idea of India to emerge from Society which has individuals of diverse ideologies, cultures and religious denominations. We must, therefore, identify common strands that will bind us, as one nation and one people. Unless this is done we cannot build a modern and strong India. In the hierarchy of values, judicial integrity is above judicial independence. Judicial accountability needs to be balanced with judicial independence. I would request the Bar as well as eminent jurists to deliberate upon constitutional concepts such as Judicial Independence and Judicial Accountability. We, the Judges, do not mind a studied fair criticism. However, as an advice to the Bar please do not dismantle an Institution without showing how to build a better one. Please remember “When an Institution No Longer matters, we no longer matter.”

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‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’

Posted in CJI SPEECHES, JUDICIARY, JUSTICE, LEGAL LUMINARIES, SUPREME COURT by NNLRJ INDIA on October 11, 2011
JUSTICE PN BHAGWATI

JUSTICE PN BHAGWATI

SHEKHAR GUPTA IN INDIAN EXPRESS

In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Chief Justice of India P N Bhagwati expresses regret over his habeas corpus judgment that upheld the right of the Indira Gandhi government to suspend all fundamental rights during the Emergency and explains why he wrote a letter of praise to Mrs Gandhi

My guest this week is one of Indian judiciary’s most important shining lights, Justice P N Bhagwati. It tells you about the creative energy in his mind that even now, when he is about to turn 90 very soon, he is working on two books, including his memoir. The judiciary is in news these days. The government complains about the Supreme Court’s obiter dicta, we also editorially complain about it. It seems somehow that the tension between the executive and the judiciary has become too much.

Well, that can’t be helped. Even in normal times there is bound to be some tension between the judiciary and the executive, particularly because the judiciary is entrusted with the task of enforcing the Constitution and it has got to enforce the fundamental rights of citizens and these fundamental rights sometimes come into conflict with what the government desires to do. But that is a conflict that can be resolved by the judiciary and whatever the judiciary decides as a matter of law and the Constitution should be accepted by the executive. Then there will be no tension.

But do you think that sometimes the executive doesn’t accept it?

Yes, in the last few years there have been occasions when the executive has not accepted decisions of the judiciary.

Sir, two recent judgments. I don’t know if you have followed them. The Salwa Judum judgment and the black money judgment in which the government felt, and many of us also felt, that the bench had exceeded the constitutional limits. In both cases there are appeals now for review.

Appeals are there, the Supreme Court will have to dispose of those appeals according to law. But very often, judges forget, lawyers also forget, that law is not an abstraction. Law is something which has been moulded and developed by the courts, by the judges. Law is ultimately what the judges make it, and therefore the judges must have a social perspective. They must be anxious to see that human rights become meaningful for the large masses of people in the country. They should not feel worried about the executive or I would say even about what people say. Their function should only be to enforce the basic human rights that are embodied in our Constitution.

In your own career as a judge, did you feel pressure from the executive and how did you deal with it?

No, I never felt any pressure from the executive. I delivered several judgments, many of them against the government, but not once did I feel that the executive felt offended. It’s possible that they didn’t like my judgments but they never showed any anger.

Any vindictiveness?

No, never.

You were a judge when the executive was much powerful than it is now. Mrs Gandhi’s executive was very powerful.

But the judiciary of my time was equally powerful. Let me tell you that there was never a single occasion when the judiciary and my leadership felt thwarted by the executive or by Mrs Gandhi.

But look at the praise that you wrote for Mrs Gandhi. Most judges today would be embarrassed to write such a flowery prose about a prime minister.

I wrote about her because she fully deserved what I said. She had given this country a united India. Let us not forget the fact.

But somebody who rose to become Chief Justice of India, was it correct for you to write praise for her? It didn’t compromise you?

Publicly, no. But the CJI writing to the PM or the PM writing to the CJI privately was not wrong.

But today it would be out in the RTI and published.

It should not be published. It does a lot of harm.

So are you then saying that these correspondences should not be exposed to RTI?

It should not have been exposed to RTI. Basically what I wrote and what she wrote to me, I don’t remember now, was in the strictest confidence.

But does it pass the test of propriety for the Chief Justice of India to write praise in such flowery prose to the PM and expect it to be kept confidential?

No. I entirely agree with you it was wrong on my part.

You agree with that. But you got carried away? Why did you write that?

I was carried away by the result that was achieved.

…in the election?

Because I always believed that the welfare of the people was the ultimate goal, both of the judiciary and the executive, and anything which tends to further that goal or improve the condition of the people is something that deserves praise.

You did not write in anticipation of any benefits or rewards?

In my life, I have never anticipated anything. But I always believed that my duty is to serve my people. I was in the freedom struggle. I went to jail in 1942. I have always fought for the rights of the people and you look at my judgments.

You started the PILs. You used the postcard and treated it as PIL. Tell us the story of the postcard.

When I became a judge in the Supreme Court, I went round the country and when I visited various villages and towns, people gathered around me because they were interested in seeing a Supreme Court judge. I used to talk to them and I realised for the first time how important a judge’s function was. When people came, many of them were in tatters, many of them had sunken bellies. I realised that my justice was not reaching them. My justice, which I was administering, was meant for the few who could afford lawyers, litigation, court fee. That brought a change in my heart, my attitude. And then I started getting postcards, I started treating them as writ petitions. And ultimately I developed the whole theory of public interest litigations.

That’s your great positive contribution, but let me take you back to your regret and to the letter to Mrs Gandhi. When did you first feel that it was wrong to have written it?

Soon thereafter, I would say. I realised that I should not have treated that letter the way I did. Perhaps I exceeded my jurisdiction.

In the praise that you wrote for her?

No, not that the praise was ill informed but as a judge, as the chief justice, I shouldn’t have written it.

If you had written this, then you had wished it had not become public?

Definitely. It was not meant to be public.

What harm does it do if it becomes public, as it became public?

Well, perhaps to an extent people might feel that I’m pro-government. But very soon the impression that I am pro-government was dispelled.

But apart from that letter to Mrs Gandhi, one thing that rankles is your habeas corpus judgment, the ADM Jabalpur case, when you ruled with the majority of the judges to say the government could take away the right to life of a citizen.

Still looking back, legally we were right, the majority was right. But if I were sitting alone and I would have an opportunity to say it again, I would have taken a different view though that different view would not have been consistent with the words of the Constitution.

As you said earlier, law is not an abstraction. And law is what the judges make it out to be. Did you, as a judge, fail to make the right interpretation, or the right use of that law?

I’ve always admitted that. As a bold judge, as an imaginative judge, as a judge working for the people, I should not have taken that view.

Many of your critics say you cannot just express regret because that judgment did or could have done damage to the liberty of Indian citizens.

But I don’t see how could it have done damage because I think the amendment was made and in fact two years later or so, a similar case came before me and I took a different view. I said in the judgment that the view I had taken was wrong and I changed my view.

One judge disagreed and that was Justice H R Khanna. At that point did you think he was wrong?

At that point, perhaps I must have thought so.

Did you have any conversation with him on this?

No, he didn’t discuss with me. Soon after, he resigned because he was superseded.

That is the whole point. It becomes obvious to join the dots. All the judges who favoured the judgment, the judgment that Mrs Gandhi wanted, rose to become chief justices. The only one who did not was Justice Khanna.

But I became chief justice much, much later.

But the fact is that everyone on that bench, except Justice Khanna, rose to be CJI.

That’s because of seniority. Purely because of seniority. And Khanna should not have been superseded.

But Mrs Gandhi superseded him.

It was wrong on the part of Mrs Gandhi not to appoint Justice Khanna as CJI according to seniority.

What would you have told Justice Khanna if you had met him now?

I would have said it was very brave of you to give the dissenting judgment.

The ’70s saw the habeas corpus judgment and then you had the Kesavananda Bharati judgment that protected our freedom forever. It was the most important five years, I would say, in the evolution of India’s constitutional history. Do you think the period we are seeing now is a period comparable to that? There is the Jan Lokpal movement, there is a demand for a Judicial Accountability Bill. You were a party to setting up the collegium system and now the executive and Parliament are both going after it saying the system is not right. Judges are giving judgments that are setting up monitoring committees on everything.

If you are talking about appointment of judges, I have publicly said that appointment of judges should not be left entirely in the hands of the executive, nor should be left entirely in the hands of the CJI.

…which is the case now.

Now it is a collegium.

Now only the judiciary does it.

Collegium is alright but collegium should be run with some principles to guide it. The old system under which I worked was much better. The CJI made a recommendation after consulting some of the senior judges. Then the government, the law minister would discuss the matter with the CJI, and then we would make the appointment. Look at the earlier appointments, most of them were very good.

But right now, the problem is that there are so many vacancies in the courts. Allahabad High Court has 100 vacancies.

No vacancy in the High Court or the Supreme Court should be allowed to remain unfilled for a long time. Judges have assumed to themselves the power to make appointments, which is a wrong thing. In my opinion, the Constitution has been wrongly interpreted.

So it can’t just remain a fully in-house job?

No, it can’t. If you make the first five judges decide, then sometimes it is possible—I don’t want to make any allegations—that there may be give-and-take among the judges. You have my man, I will have your man. Therefore, I have always maintained and publicly said that appointments should be in the hands of CJI and the law minister.

Do you think the judiciary is under a bit of siege? One, it has resisted reform, it took such a public outcry for them to even declare their assets, RTI and now appointments. Then they are delving into areas of governance, setting up special investigating teams and monitoring them, asking the director of RAW to report to them on black money.

One feels sad that judiciary should come to this pass.

Why? If you could elaborate.

During my time, the judiciary enjoyed the highest respect.

Do you think that respect is threatened right now?

That respect has slightly gone down. There are a few judges who still enjoy that respect, I am told. But I can’t say about all judges today.

Why the judiciary is under pressure is because the Lokpal people are saying bring the judges under Lokpal, government is saying there should be a Judicial Accountability Bill.

I’m against bringing judges under the Lokpal because public pressure will mount unnecessarily. It will affect the independence of the judges. But judges should have their own separate body.

With some involvement of the executive or no involvement of the executive?

No involvement of the executive. Why don’t we have a retired chief justice of India, a sitting chief justice, one or two senior sitting judges, attorney general and one leading member of the Bar?

Did you ever discuss this with your very famous contemporary Shanti Bhushan?

I’ve met him occasionally, but have not discussed these issues with him. What is his view?

He wants the judiciary to be brought under the Lokpal.

No, it is dangerous to have the judiciary under the Lokpal.

Why dangerous?

Because the Lokpal ultimately is a person who is moved by public sentiment. I don’t want that. Let there be a separate Lokpal, if you like, for the judiciary. That is the best thing. I have already made this recommendation of mine in writing.

What is your advice to today’s judges?

Judges should retain their peace of mind because after all they have got to present an image that people will respect. If we show anger unnecessarily then people will feel that we are just like ordinary people. We have to show our stature is above that.

So do you object to obiter dicta?

No, but they should be well placed. Obiter dicta must be called for.

Do you remember any moment from the times of the bench when you used obiter dicta and well?

I must have sometimes, but I can’t recall now after this length of time.

I think one wonderful thing you have done is to keep yourself busy. Your thoughts are always valuable and now you are putting them down in a book. We will all wait for your books to come out.

Source:    INDIAN EXPRESS http://www.indianexpress.com/news/if-judges-show-anger-unnecessarily-people-will-feel-we-are-just-like-ordinary-people.-we-have-to-show-our-stature-is-above-that./858177/0

Chief Justice of India Releases Restatements of Indian Law on Legislative Privilege, Contempt of Court and Public Interest Litigation

Posted in CJI SPEECHES, SUPREME COURT by NNLRJ INDIA on October 11, 2011

Chief Justice of India, Shri Justice S.H. Kapadia, here today released a set of Restatement of Indian Law in the presence of legal luminaries. These Restatements of Indian Law relate to 3 subjects: Legislative Privilege, Contempt of Court and Public Interest Litigation. Chairman of the Supreme Court Project Committee on Restatement of Indian Law Shri Justice R.V. Raveendran, Shri G. E. Vahanvati, Attorney General for India and the Director Incharge, Indian Law Institute, Professor S. Sivakumar were also present on the occasion. Chief Justice of India is also the Patron of Supreme Court Project Committee on Restatement of Indian Law.

This Restatement of Indian Law would benefit the members of Bar, Bench, Academia, Civil Servants and general public to map the developments in the field of law and to comprehend its current status as the march of Indian law in the last six decades through judicial pronouncements, legislations and their amendments, rules, regulations and other policy measures needs to be restated with clarity of thought. With this objective the Supreme Court Project Committee on Restatement of Indian Law and the Indian Law Institute had taken up the task of restatement of Indian law in important areas.

The process was initiated with three Pilot Projects on: i) Legislative Privileges, ii) Contempt of Court, and iii) Public Interest Litigation. Three Sub -Committees comprising of Judges of the Supreme Court of India, High Court of Delhi, senior advocates and distinguished academicians were constituted for the purpose. The Pilot Project restated laws on:

(a) Legislative Privilege – This subject was chosen partly on account of the sharp focus it brings to the principle of ‘checks and balances’ vis-a-vis the two important organs of State – the Legislature and the Judiciary.

(b) Contempt of Court – The subject was chosen on account of the fact that the power of contempt is a necessary concomitant of a court of record. It must be exercised judiciously, in a manner that balances the need for preserving and upholding the rule of law as well as the integrity of the judicial system, while at the same time avoiding untoward incursions into that precious right of freedom of speech and expression.

(c) Public Interest Litigation – The Committee chose ‘Public Interest Litigation’ as the third area for restatement on account of the unique contribution of the Supreme Court of India in facilitating access to justice by liberalizing the principle of locus standi. The circuitous journey of PIL and associated discrete judicial thoughts necessitated a clarion, which this restatement aims at.

Looking for knights in black robes

Supreme Court of India

Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance 
S.H. Kapadia , Chief Justice of India at the 6th Setalvad Memorial Lecture in New Delhi

PUBLISHED IN THE TRIBUNE

Leading an exemplary life is the highest form of ethical conduct. This is the keystone of our modern codes of judicial conduct. We need a clean man in the black robe to uphold the independence and the integrity of the judiciary. Action is an extension of values. A Judge’s obligation must start and end with his analysis of law, not with personal beliefs or preferences. The Judge should not accept patronage through which he acquires office, preferential treatment or pre-retirement assignment. These can give rise to corruption if and when quid pro quo makes a demand on such Judges. Similarly, when a family member regularly appears before a Judge, adverse public perception can affect the working of the integrity of institutions like the judiciary.

The active involvement of Judges in community organisations has also evoked a similar response when their civil society associates appear as litigants before them. Frequent socialising with particular members of the legal profession or with the litigants, including potential litigants, is certain to raise, in the minds of others, the suspicion that the Judge is susceptible to undue influence in the discharge of his duties. In such a situation, Judges must keep the part of impartial, objective, fearless and independent justice alive. 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 except on purely social occasions. When one enters the Judges’ world, one inevitably has to impose upon oneself certain obvious restrictions. Judges owe a solemn duty to the community at large and from day-to-day they must ask themselves whether they have done or said anything which is inconsistent with the oath of office they have taken and which otherwise are consistent with their obligations as a Judge.

One more aspect needs to be highlighted. Internal interference from a high-ranking Judge which, if resisted, could lead the lower-ranking Judge being transferred or being denied promotion also needs to be deprecated. Similarly, political protection should not be given to corrupt Judges.

Drafting judgements

In drafting “know what to omit rather than what to include”.

Judgements are not to be written as simplified newspaper pieces for public consumption. The process of reasoning in a judgement should reflect its integrity and explain its conclusions. Judges must eschew any suggestion that duties of the judiciary are owed to the electorate; they are owed to the law which is there for peace, order and good governance. The Judges of the Supreme Court of India should revisit the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to enact laws. We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a super-legislature to weigh the wisdom of legislation. We must remember that our Constitution recognises separation of powers and that the legislatures and the government can be made accountable for their legislation and actions by the electorate if they err. In many PILs, the courts freely decree rule of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of the government have failed or are indifferent to the solution of the problem.

In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance. In such matters, the courts must try to ascertain whether the issue has a legal content or a political content. In the latter case, the courts should invoke the doctrine of deference. The function of the courts is to review the acts of the legislature and not to impose its own policies or values on the society or the legislature.

We do not have the competence to make policy choices and run the administration. Judicial activism which is not grounded on textual commitment to the Constitution or the statute, unlike activism in cases of human rights and life and personal liberty, raises questions of accountability of the judiciary whose members are not chosen by any democratic process and whose members are not answerable to the electorate or to the legislature or to the executive. We, Judges, should remember that the validity of our decisions cannot rest on popularity. Resisting the pressure to please the majority is the strength of the judiciary, not its weakness. Judges who invoke the Constitution to protect the rights of people and who declare a statute unconstitutional are not legislating from the Bench, nor are they thwarting the will of the majority. They are merely carrying out their oath of office and following the rule of law.

In the context of the developing world wherein litigation impinges on the economy or commerce, many Judges are cowed into submission rather than walk the tight rope of balancing the public interest and be tarred with the epitaph of “usurping the legislative function”. Lawyers and the public, apart from criticising, must engage in constructively empowering the judiciary. In conclusion, on this topic, I may add that it is the discipline of circumstances that makes us more worthy. The task of forming and giving opinion, in the course of judging, is based on many activities; resolving disputes, setting precedents, following precedents, deliberating with colleagues, displaying compassion and so on. However, each of these activities raises questions of judicial ethics. This is where the oath which we take binds us.

Separation of powers

Constitutional law is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative power, executive power and judicial power and what the limitations on those powers are. In a federal State, the allocation of governmental powers (legislative, executive and judicial) among Central and State authorities is a basic concern.

A constitution has been described as “a mirror reflecting the national soul”: it must recognise and protect the values of a nation. The word “constitutionalism” is sometimes used to convey the idea of a government that is limited by law. The phrase “rule of law” is used to convey the same idea. These terms describe a society in which government officials must act in accordance with the law. This in turn requires an independent judiciary and an independent legal profession. Under the doctrine of separation of powers, each of the above organs must stay within the powers allocated by the Constitution. Supremacy of the Constitution is the philosophy of the constitution. Well established rules of interpretation require that the meaning and intention of the Constitution framers must be ascertained from the language of the Constitution itself; with the motives of those who framed it, the court has no concern. At the same time the Constitution is not to be construed in a narrow pedantic sense and a broad liberal spirit should inspire those whose duty it is to interpret it. After 1980 the court has changed its direction to securing the rights of citizens from arbitrary actions of the executive and creating a human rights jurisdiction by an enlarged meaning of Article 14 (The Right to Equality) and Article 21 (The Right to Life and Personal Freedom). Between them the court has for all practical purposes introduced the “due process provision” in the Indian Constitution in such matters. In the so-called public interest litigation (PIL) the court freely decrees rules of conduct for government and public authorities which are akin to legislation and oversees their working.

To give a few examples: the court in the interest of clean environment has ordered and supervised the use of clean fuel for vehicles in New Delhi; it has framed schemes of admission in educational institutions throughout India, and made the right to education into a fundamental right from a directive of State policy, and made guidelines to be adopted by public institutions for controlling sexual harassment of women at work places. The jurisdictional peg on which it is done is that such matters affect “the life” of the citizen under Article 21 of the Constitution. Its justification is that the other branches of government have failed or are indifferent to the solution of the problems. In such matters, the court is acting in advance of the political branches of the government.

By and large such orders have been considered necessary and welcomed by the public, but the question which arises is – can judges ignore the separation of powers in the Constitution and become administrators, and do they have the competence to make policy choices and run the administration? Legislatures and government can be made accountable for their legislation and actions by the electorate if they err. Judicial activism of this type which is not grounded on any textual commitment to the Constitution, unlike activism in cases of human rights and life and personal liberty raises questions of accountability of a judiciary.

Judicial accountability

The value system takes precedence over personality. Honesty is a tendency.

Judicial accountability is a facet of judicial independence. It must be developed consistent with the principles of judicial independence. Constitutionalism is not enhanced by hostility directed against the judiciary which plays such a pivotal role in maintaining the rule of law. Coming to judicial accountability, there is no difficulty in accepting the principle that in a society based on the rule of law and democratic principles of governance, every power holder is, in the final analysis, accountable to the people.

The legislature is accountable to the electorate. The executive is indirectly accountable to the people through the elected legislature. There is no reason why the judiciary should not be accountable to the community for its due performance of the functions vested in it. Power is given on trust and judicial power is no exception.

The challenge, however, is to determine how the judiciary can be held to account, consistent with the principle of judicial independence. How does one achieve the right balance between autonomy in decision making and independence from external forces on the one hand and accountability to the community on the other hand?

While not recommending the regular election of judges or their recall by popular vote, I would venture to suggest that Judges, unlike legislators, ministers or public servants, should be accountable to the jurisdiction they serve through their absolute adherence to a set core of judicial values. Through inheritance of British constitutional principles, judges in many Commonwealth countries are accountable to either the legislature or the executive, in the sense that one or the other of these two branches of government is vested by the Constitution with the power to remove judges for proven misbehaviour or incapacity. At times this power has been grossly abused in some of the countries.

Judges inevitably end up in the political arena in deciding controversial cases – whichever side they rule. In resolving disputes between citizens and the State or evaluating a constitutional issue, Judges are forced to make decisions which are at times termed political. Judges are, however, not in a position to defend their judgements as they are bound by a code of silence. As stated above, Judges should account for the exercise of judicial power, especially when pronouncing judgements of significance.

Public and media criticism of Judges and judgements is a common feature today throughout the common law world. Like other public institutions, the judiciary must be subject to a fair criticism. But, what I am concerned with is response to criticism, particularly criticism that is illegitimate and irresponsible. In the context of such illegitimate and irresponsible criticism, it must be borne in mind that love for justice is rare – what most people desire is justice which favours them. Our Code of Judicial Conduct will meet its goal if a talented, hopeful young person looks in the mirror and sees in the reflection the desire to exemplify the standards of justice and the possibility of doing so. Excerpted from the M.C. Setalvad Memorial Lecture delivered by the Chief Justice of India in New Delhi last week Setalvad set standards for future Attorney Generals In December, 1937, M.C. Setalvad became the Advocate General of Bombay and in that office, as in every office he subsequently held, he rose to the demands of the office. 1943 would have seen him as the first permanent Indian Chief Justice of Bombay, for he was invited to fill that high office. But, he declined the invitation on a ground which must fill every member of the Bar with pride; he refused to be a party in superseding the claims of the first court friend, Sir Harilal Kania. And when those claims were nevertheless passed over, i Setalvad felt an indignation which found a noble expression in the moving words he used in the Supreme Court on the occasion of Chief Justice Kania’s death.

But, what the Bench lost, the Bar of this country gained and, in 1950, Setalvad became the first Attorney General for India. He set standards which future Attorney Generals were required to maintain. He realised, for instance, that for lawyers to charge fees not according to the complexity of a case but according to the traits of a client was to reduce the great profession to the level of a trade or business. The greatest service Setalvad has rendered to the law and the administration of justice lies in the work he did as the Chairperson of the Law Commission and as the author of its report. The picture which that report presents regarding falling standards of the Bench and the Bar is grim but the reality is grimmer.

Nothing would have been easier for Setalvad to have his son Atul with him at Delhi and push him into practice in a year or two. He, however, refused to do so. He left his son in Mumbai to make his way at the Bar for himself, as Setalvad had made it before. All this may appear quixotic to the practical man; but it indicates the fundamental stability of Motilal’s character and his deep awareness of the fact that it does not profit a man to destroy his own and his son’s self-respect for the sake of easy success.

http://www.tribuneindia.com/2011/20110424/edit.htm#1

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CJI Kapadia laments lawyers’ disinterest in law

Posted in CJI SPEECHES, JUSTICE, LAWYERS, SUPREME COURT by NNLRJ INDIA on March 13, 2011

TIMES OF INDIA

AHMEDABAD: Chief Justice of India S H Kapadia on Saturday rued the fact that neither senior lawyers nor students of law take any real interest in their subject – law. “Senior lawyers are not contributing to development of law, as they used to do in the past. Even young students do not take interest in this pursuit. Earlier in the Supreme Court, such students used to come, sit in courtrooms and take notes. But now they disappear in five minutes. They are more interested in transaction matters. There is nothing wrong in it. But how many can now argue on reasonableness?,” said Justice Kapadia.

The CJI was speaking on ‘Constitutional Morality’ at the sixth Justice P D Desai Memorial Lecture organised by the Praleen Charitable Trust here. Justice Kapadia advised students from various universities present at the function not to rely totally on information downloaded from internet. “Please do not go by guides and internet. You have to put in hard work. Money will not make you happy, but it’s the learning that will,” he said adding that the future generation of lawyers should be able to argue on doctrine of reasonableness and principles.

The CJI praised India for its vastness of opportunities by citing his own example as how he began his career as a peon in a Parsi trust and how he reached the top post of judiciary. “Ability may take you to the top, but you require character to remain on the top,” he said advising young lawyers to maintain integrity in their profession. Justice Kapadia also advised judges not to lecture society. “The problem is that sometimes we judges impose our own values, our own likes or dislikes on the society. The judges should keep in mind that we cannot judge the wisdom of legislatures. We have to work for constitutional principles. I have no right to say what others should do, but I have to perform the duty on constitutional principles,” he said. The CJI also said that courts these days faced the challenge of balancing the rights and the society’s interests. Without mentioning the recent SC’s ruling in CVC P J Thomas appointment case, Justice Kapadia said “Now take the case of balancing points. What is more important to the appointment of higher office? Presumption of innocence or presumption of institutional integrity and competence?”

He discussed the issue of maintaining balance between environment and development. He also spoke about objectivity and inter-generational equity. Those who attended the function included former SC judges, Chief Justice of Gujarat high court S J Mukhopadhaya, other sitting judges and senior lawyers.

Fight corruption, bring back institutional integrity: Chief justice

Posted in CJI SPEECHES by NNLRJ INDIA on August 15, 2010

Court Chief Justice S.H. Kapadia said on the occasion of India’s 64th Independence Day Sunday that ‘institutional morality and integrity’ must be brought back to fight the deep-rooted problem of corruption.

‘Corruption is a problem we have to face and be it the Supreme Court or high courts or any other constitutional authority, the institutional morality and integrity has to be brought back if it is not there,’ Justice Kapadia said. He was speaking at a function organised by the Supreme Court Bar Association (SCBA) to celebrate Independence Day at Supreme Court. He said despite talk of inclusive growth, there was a huge disparity between the rich and the poor and it was increasing.It was a great paradox that while on one hand India is counted as one of the fastest growing economies, yet on the other hand it was the diabetic and tuberculosis capital of the world. On the human development index, India stood at the 134th position and 400 million of the world’s most poor live in India, he said. Justice Kapadia said human order must ‘breathe universal compassion and egalitarian beauty’.In the next two years of his tenure, Kapadia said, ‘my dream is to prove that things can be achieved and goals realised even in the existing set-up.’

He said during this summer vacation the disposal of cases was double of what was cleared during the previous summer recess. He said last month the backlog came down by 1,000 cases. SCBA president Ram Jethmalani said the national flag was the symbol of ‘internal freedom and external sovereignty’. Jethmalani said the Independence Day function should not be an exercise in rituals but an occasion for introspection and critical self-assessment. ‘We must search for the glow of freedom on the faces of the poor, forgotten and destitute,’ he said. He said by ‘most conservative estimates two-and-a-half million children go to bed every night without a morsel of food in their stomachs. They only eat the lining of the stomach and intestines’. ‘Most of the rich seem to be plain dacoits and politics has become a filthy stinking sewer,’ he said. ‘There is no section of our polity where corruption has not been able to find a comfortable resting place. The guardians of law have become their protectors in crime.’ Pointing to stone-pelting by young boys on security forces in the Kashmir Valley, Jethmalani dared their leaders and instigators to try and throw stones themselves and face the music.

IANS NEWS

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‘We have not violated any procedure in the matter of Justice Dinakaran’

Posted in CJI SPEECHES, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on January 11, 2010

J. Venkatesan , THE HINDU NEW DELHI

“I requested the government to conduct an enquiry and convey the findings to me, says the Chief Justice of India.” In a special interview to The Hindu in New Delhi on January 9, he spoke on a wide range of issues relating to the judiciary

(“I hope I have done reasonably well in the matter of appointments, and in other areas. But I can’t say I am fully satisfied,” Chief Justice of India K.G. Balakrishnan says with humility, as he goes on to complete three years in office on January 13. In a special interview to The Hindu in New Delhi on January 9, he spoke on a wide range of issues relating to the judiciary. Excerpts:)

You are completing three years in office this week. Are you satisfied with your overall performance? Do you feel much more could have been done?

I cannot say I am fully satisfied because setting up new courts, filling up vacancies … these are all things which will take years. But I feel the three years have, by and large, been satisfactory.

Have your efforts yielded the desirable results, particularly in the area of disposal of cases?

On the disposal of cases in the High Courts, I don’t have statistics at present. But all I can say is there is lot of improvement in the overall rate of disposal. Even in the Allahabad High Court, where the pendency was large, some old matters have been disposed of. In the Madras High Court and some other High Courts, where there is a fairly good strength of judges, pendency has come down.

In the Supreme Court the disposal rate is high. A total of 71,000 cases were filed in 2009. We disposed of nearly 69,000 cases. The overall pendency now, I think, is 54,000 or 56,000 cases.

What do you think is the solution? Creation of more courts?

A court can handle not more than 200 cases which can be disposed of in six months. At the most 400 cases … if it is more than 400 cases, it is difficult. On an average now, more than 1,000 cases are filed in a court. Maybe in remote areas, the number is less.

We need at least another 35,000 courts. Going by any standard in any country, the number of courts is far, far less in our country. Even in a small country like Israel, there are so many courts. One thing every government should ensure is that cases are not blocked. The government will get more revenue because many tax cases have been pending in various High Courts for a long time. Look at the criminal justice delivery system …everybody is saying cases should be completed in reasonable time. But serious efforts are not being taken to address the problem.

Is there a proposal to set up a Kerala High Court Bench in Thiruvananthapuram?

Some political parties and lawyers in Thiruvananthapuram have demanded a High Court Bench. But the High Court has not sent any proposal. It has to be approved by the High Court Chief Justice, only then the President can act on it.

You were in favour of setting up 60 additional CBI courts. What is the progress?

I find that corruption cases in CBI courts have been pending for more than 10 to 11 years. These cases must be disposed of. That is why I suggested 60 additional courts. The government has approved the proposal. I feel it should have been done.

In how many States are evening courts functioning?

They are working well in Delhi, Ahmedabad, Hyderabad and Bangalore. We have a scheme — the judge who works late is paid 30 per cent additional salary. The staff who work between 5 pm and 8 pm also get additional salary. We encourage only lawyers with less than seven years of practice to appear in these courts.

Do you think the allocation of funds for the judiciary should be increased?

The problem is the High Courts do not have the technical knowhow on preparing the budget on, say, what would be the next year’s expenses on the judiciary. The Planning Commission should see what the requirements in each State are, how many courts are required, what is the possible budget requirement and so on. Probably that is the reason why new courts have not come up so far.

When we talk about infrastructure, I have even suggested to the National Informatics Centre that we should have a separate television channel for the judiciary so that court matters can be highlighted and our training programmes improved. We may not have a 24-hours channel but we can have a channel telecasting the proceedings for a few hours. I have asked the Prime Minister’s IT advisor, Sam Pitroda, to explore the possibility. The TV channel should telecast important matters which are argued in the Supreme Court. For example, the Reliance case … there are about 3 million shareholders who would be anxious to know what is happening.

Brazil has a separate television channel for the judiciary. In the United Kingdom too, the new Supreme Court has the facility to telecast the proceedings. Even in Canada, such a facility is available. At least some cameras are placed outside the courtroom to record what is happening in the court. This will make the judges more responsible … they will be more conscientious. People can criticise judgments which are patently wrong.

In some cases like the Narco analysis issue, judgments have been reserved for almost two years.

Judges don’t get time. Everyday, 40 to 50 cases are to be read. Before March, I will finish all the cases and judgments will be delivered.

Why is the setting up of regional Supreme Court Benches being opposed?

Most people associated with the Supreme Court feel that once the Court sits elsewhere, the identity of the institution will be lost. The other suggestion is we can have a third appellate court to deal exclusively with constitutional matters, inter-State water disputes and federal disputes. That, we have to think of seriously.

A crucial issue in 2009 was the Justice Dinakaran issue. There is a perception in the Bar that you have a soft corner for Justice Dinakaran and that the Collegium could have been more transparent in the procedure adopted.

We have not violated a single procedure in the matter of Justice Dinakaran. When the matter came up — that he had trespassed into some land — I said I didn’t have any machinery to find out whether it was correct. I thought the revenue authorities would give some information. It was not my decision, it was the collegium’s decision. All decisions are taken by the collegium. We got a report, we decided to get a response from Dinakaran. Then we got the response. He denied that he had trespassed into even an inch of land. Then what is to be done? We don’t have a machinery to enquire into land measurement. I never wanted to make use of the judicial machinery, District Judge or Registrar, for any enquiry. So I requested the government to conduct whatever enquiry it wanted to and convey the findings to me. The government ultimately sent the file. By that time, the impeachment proceedings started. I don’t know what the Survey of India report is. Now we are not concerned with the report at all. We have asked the government not to process the name for the time being. That is the end of it. It is for Justice Dinakaran to defend himself before the committee. We have not done any favour to him. I can only say not a single representation, objection or complaint was received regarding his integrity or honesty when he was a judge of the Madras High Court or the Karnataka High Court. The collegium with five senior-most judges took into consideration all these factors. We cannot simply withdraw a name. That is not a fair or judicious way of doing things.

In the second issue relating to the recommendation on elevating the Allahabad High Court Chief Justice C.K. Prasad also, President Pratibha Patil has put a note on the file. The collegium will deal with it. We are yet to take a decision.

Were you taken into confidence on the much talked about Judicial Accountability Bill? There is a lot of criticism on the collegium system of appointments.

We don’t know what the provisions are. I have seen the draft Bill, but in what form it will come I have no idea. It may go to the Select Committee of Parliament.

Do you welcome the move to set up a National Judicial Council for the appointment of judges?

It should be dealt with separately. In many countries like South Africa and other Commonwealth countries there is the Appointment Council. If the government feels it wants an NJC, it should go about it properly.

As long as the Supreme Court judgment is there, we have to go by it. Those who criticise must understand that. We have only inherited the judgment. How can we change it? We are bound by that judgment. We take consultations, take written opinions from judges. Somebody who strongly feels that it is to be reviewed should take appropriate steps.

It is nearly three-and-a-half years since the Supreme Court had a woman judge. Even after the strength has increased from 26 to 31, there is no woman judge.

It took nearly 45 years for the Supreme Court to have the first woman judge. It is not in my hands alone. I hope my colleagues will consider some of the names.

Do you justify the clean chit given to Justice Nirmal Yadav in the cash at door scam?

We did not give any clean chit. It was the former Attorney-General who said no case was made out. The CBI did not seek any sanction for prosecution in the case. It closed the case. So where is the question of sanction?

What it sought sanction was for 9000 sq m of land purchased by 17 persons in Himachal Pradesh, including Justice Nirmal Yadav. A person can purchase 500 sq m of land. Going by that, no offence is made out. I have not given any sanction for conducting an enquiry. If 17 persons purchase lands, no offence is made out. How can I allow a sitting judge of the High Court to stand before a magistrate in a criminal case?

‘We have not violated any procedure in the matter of Justice Dinakaran’

(“I hope I have done reasonably well in the matter of appointments, and in other areas. But I can’t say I am fully satisfied,” Chief Justice of India K.G. Balakrishnan says…)

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Canons of Judicial Ethics

WHEN THE JUDICIARY IS UNDER ATTACK ON ISSUES RELATED TO BIAS AND ASSET DECLARATION IT IS TIME TO REFER TO THIS SPEECH GIVEN BY JUSTICE SHRI R S LAHOTI , IN 2005

Canons of Judicial Ethics

First M.C. Setalvad Memorial Lecture delivered by

Hon’ble Shri R.C. Lahoti, Chief Justice of India On Tuesday,

22nd February, 2005.

INTRODUCTION

I deem it a matter of pride, privilege and pleasure for having been called upon to deliver the First M.C. Setalvad Memorial Lecture.  I do not have the good fortune of having ever met or even seen the legendary figure Motilal Setalvad, but, I can claim to know him well for I have learnt about him not from anyone else, but from he himself.

My close encounter with Setalvad (as I would put it) was in the year 1971.  I had put in a few years of legal practice.  I had passed through that phase wherein a junior lawyer often acquires the reputation of being a champion of lost cases. I was desperately keen on learning what goes into the making of a good lawyer.  My late father, who was also my guru in the profession and also my role model, advised me to read autobiographies and biographies of great lawyers.  In a law book shop at Indore (where I had taken my instructions in law), I came across – “My Life, Law and Other Things”.  What tempted me at that time to purchase the book was not so much the fact that the book was authored by Setalvad; rather, I felt more fascinated by the fact that the book was published in October, 1970 and within three months a reprint edition had to be brought out in January, 1971.  This fact bore testimony to the demand for the book.  I thought there must be something worthwhile in it.  For the book running into 636 pages well bound in cloth, I paid Rs. 30/- (the printed price) which was out of the hard earned money of a young district court lawyer.  Thirty three years hence, a few pages have started leaving the binding.  Recently I saw the second edition of the book.  On comparison, I found that the only difference between the two editions is a heart-touching but inspiring introduction to the book by Shri Fali S. Nariman, Senior Advocate.  I got the introduction photocopied and added to my old possession as I did not want my tested source of inspiration for 33 years to be replaced by anything new.

The book is a must for every lawyer, every judge and every student of law, for the message which it carries for everyone associated with law or legal profession.  The book speaks less of Setalvad and more about the contemporaneous events which centred around Setalvad.  It is less of a biography and more of a historical document.  Setalvad himself said – “I have always disliked talking about myself” and yet he said – “I am naturally proud of what I have been able to achieve in the profession and all the services I have tried to render to the public and the country in different fields.  I have attempted in this book to set down an account of my life first of all for my own satisfaction and because it might be an encouragement to others.”    Setalvad is right, I can swear and say that.

MOTILAL SETALVAD

Motilal was a worthy son of a worthy father Chimanlal.  He not only inherited all the virtues of his great father but also multiplied and refined them to higher planes.  Towards the declining years of his life, Chimanlal had the satisfaction of seeing his eldest son tread in his professional foot-steps, and distinguishing himself by his mental powers and forensic ability, which in the end enabled him to rise to the highest rung of the legal ladder, culminating in his appointment first as the Advocate General of Bombay and later as Attorney General for India.  The son gave early promise of a brilliant future at the Bar.[1]

A few characteristic qualities of Setalvad as an Advocate need a mention.  He was blessed with a stentorian voice which was quite disarming for his opponents.  He was invariably full of confidence at the Bar and had the habit of looking around in court during the course of his arguments.  He never interrupted his opponents.  His arguments were crisp and to the point and were not loaded with personal reminiscences and anecdotes.  When Seervai mentioned something personal to himself during the course of the hearing of the RMDC appeals and writ petitions, Motilal made an audible remark that “these autobiographical references must stop”.  He practiced the profession in a grand manner like an architect and not like a mason or a tradesman operating on the law of demand and supply.  His fees were reasonable and did not vary depending upon the stakes involved in a case.[2] The most conspicuous trait of Motilal Setalvad’s advocacy in Court was his clarity of exposition and brevity.  He never repeated an argument or over emphasized it.  In the President’s Reference No. 1 of 1964 [(1965) 1 SCR 413], Chief Justice Gajendragadkar paid a tribute to him – “Mr. Setalvad who appeared for the Judges of the Allahabad High Court addressed to us a very able argument with his characteristic brevity and lucidity” (page 435).  He had the most impeccable demeanour in court.  He did not raise his voice or show any emotion or indulge in levity.  No other Attorney General had the gravity which he had and which spontaneously commanded respect from the Bench. As a Law Officer he seemed to have instinctively grasped the true function of a Law Officer which is stressed in English Courts viz., “Counsel for the Crown neither wins or loses.  He is there to state the law and facts to the Court”.  Setalvad did precisely that.[3]

TODAY’S TOPIC

When Mr. Fali S. Nariman gave me the topic – ‘Canons of Judicial Ethics’ I was a little amused.   Who talks of ethics these days?  And who listens to ethics?

A patient visited a doctor’s clinic and asked the receptionist – “I want to see a specialist of eyes and ears.

The receptionist said – “There are doctors of ear, nose and throat and there are doctors of eyes.  There is no specialist who treats both the eyes and the ears. But then why are you in need of such a doctor?

The patient replied – “These days I do not see what I hear and I do not hear what I see.”

There are three reasons why I have readily and happily agreed to be here this day speaking on the subject.  First, the year 2005 is an ‘Year of Excellence in Judiciary’.  It is futile to think of excellence in judiciary unless the judges __ howsoever highly or howsoever lowly placed __ were to follow the canons of judicial ethics.  Thus, the subject becomes inevitably relevant.  Secondly, there is an untold and hitherto unknown affinity between Setalvad and me.  Setalvad too was a teetotaller, vegetarian and non-smoker.  These qualities of his have made me fall in love with him.  Thirdly, I feel nothing could have been more appropriate and befitting the memory of Setalvad __ the professional virtues incarnate, than discussing ethics and this I say on the authority of what Mr. Justice V.R. Krishna Iyer had said in a message – “The late Shri M.C. Setalvad was not merely a great jurist and persuasive advocate of international renown but, most importantly, was one of the tallest figures who set high standards for the Bench and the Bar and, by the very power of his presence, made high professional values operational.  Today, when the decline and fall have become deleteriously visible in the two sister professions, the memory of Setalvad will be a necessary admonition.”[4] Fourthly, no Chief Justice of India would refuse to avail an opportunity for speaking on judicial ethics more so when it is before such an august audience and that too in the memory of Motilal Setalvad.  It would have been unethical on my part if I would not.   Discussion on judicial ethics is a tribute to Setalvad.

The first lecture on Setalvad could not possibly have been on any topic other than ‘Ethics’.  Setalvad is a man who lived by values and not only did he live by values but he also believed in creating values.  He remained ever a lawyer and never became a judge; rather, never agreed to become a judge.  His life story is full of anecdotes delivering messages worth being emulated by the lawyers and the judges.  An anecdote or two[5], I am tempted to quote.

In 1956, Setalvad was in Hague to appear before the International Court.  The Indian Ambassador there came with a message that Sir Mohammed Zaffarullah Khan, one of the Judges at the Court was anxious to meet Setalvad for old times’ sake.  Setalvad responded firmly by saying that it would be wrong for him to meet a sitting Judge even socially.  Zafarullah Khan tried to speak to Setalvad on phone.  Setalvad was very clear and firm while speaking into the mouthpiece for the sake of courtesy that it would be wrong for him to meet the judge while the case was on.  “We shall meet after the case is over,” he said.5

While staying at 11, Safdarjung Road in the capacity of Attorney General for India he had two telephones, one official and one personal.  Mrs. Setalvad was having tea with him and Setalvad just left the hall to make a call.  The guest present wondered why he did not make a call from the telephone which was there itself.  Mrs. Setalvad explained that Setalvad always made his personal calls from his private telephone and the telephone near hand was the official one.5

During his official visits he would meticulously check all the bills to separate such payments which were his personal and immediately drew a cheque for such amounts.

It is well-known that Setalvad publicly disapproved of the former Chief Justice of Bombay accepting a diplomatic post from the Government of India.  He heartily disapproved of the executive branch of the Government holding different carrots to the judiciary.5

He would never accept any gifts; not even from his clients.  In the Privy Purse matter his client – a Maharaja – sent him some valuable gifts attractively packed, which he promptly declined to accept, even without touching them and told the carrier – “Tell his Highness if he wants to send the fee, it should be by cheque.”5

Motilal had great respect for the judiciary and the judges.  Jai Mukhi was associated with Motilal as his junior.  Mukhi’s brother Parsa was appointed judge of the Bombay High Court.  Soon, on being so appointed, Parsa accompanied Mukhi to Setalvad’s house.  Setalvad was in kurta pyjama and ensconced in his favourite chair.  He lumbered up from his chair and stood erect to exclaim – “A Judge!  One must show respect to a Judge!”5

Setalvad had asserted Judicial Independence when he was still the Attorney General.  At the Inaugural Session of the Bar Association of India in 1961, he had indicted the Government, with President Rajendra Prasad, Prime Minister Jawaharlal Nehru and Chief Justice B.P. Sinha present on the rostrum in the Vigyan Bhawan.  Setalvad condemned the Governor’s reprieve granted to Nanavati to make the Bombay High Court warrant issued for his arrest unenforceable, when the Supreme Court was seized of Nanavati’s appeal against his conviction for the murder of Ahuja.  After Setalvad’s Presidential Speech, at this Bar function, Jawaharlal Nehru was called upon by Setalvad to inaugurate the Bar Association of India, a voluntary organization of the Bar.  Jawaharlal Nehru was visibly shaken by the powerful public indictment by Motilal Setalvad.  Jawaharlal Nehru fumbled for words as he never used to.  Jawaharlal began: “What can I say?  I am in the position of an accused!”  That was Jawaharlal so full of candour and so transparently sincere.  He did not defend the action of the Government.  He made it quite obvious that his judgment as Prime Minister had gone wrong in taking a responsible decision, in the zeal to protect Nanavati, albeit temporarily.[6] Commitment to professional ethics and professionally honouring the commitment made were the virtue of Setalvad. R.A. Gagrat, Advocate, past President of the Bombay Incorporated Law Society narrates one of his reminiscences.  He had briefed Setalvad in some important cases including the RMDC case which his clients lost in the Bombay High Court.  At that time, there was a rumour that Setalvad would be appointed the first Attorney General for India.  Gagrat went to congratulate him and also told him that on behalf of RMDC, an appeal was being filed in Supreme Court.  The information was a reminder to Setalvad and also an underlying request to Setalvad to inform in his turn the Government to that effect.  Gagrat also requested Setalvad to appear for his clients in the Supreme Court and not to take up the matter on behalf of the Government.  Setalvad expressed thanks to Gagrat for the information and told him that he would speak to the Government about it.  Setalvad kept his promise and appeared for RMDC in the Supreme Court.[7]

While working on the material for the memorial lecture of today I have realized what the meaning of the title “My Life, Law and Other Things”  – title which Setalvad gave to his autobiography __ is.  His ‘life’ is, of course, the core of the book.  The ‘law’ is in plenty in it to read.  What was not clear to me earlier was ‘other things’.  Now, I understand these ‘other things’ available in the book, are just the ‘Canons of Judicial Ethics’.

CANONS VS. PRINCIPLES

I wonder why not ‘Principles of Judicial Ethics’ and why the ‘Canons of Judicial Ethics’.

‘Principles’ are fundamental truth, the axioms, the code of right conduct.  Much of these remain confined to theory or hidden in books.  Canons are the type or the rules perfected by the principles put to practice.  Principles may be a faculty of the mind, a source of action which are a pleasure to preach or read.  ‘Canons’ are principles put into practice so as to be recognized as  rules of conduct commanding acceptability akin to religion or firm faith, the departure wherefrom would be not a pardonable mistake but an unpardonable sin.  Let us bear this distinction in our mind while embarking upon a voyage into the dreamland called the ‘Canons of Judicial Ethics’.

Canons are the first verse of the first chapter of a book whose pages are infinite.  The life of a Judge i.e. the judicial living is not an easy thing.  Things in judicial life do not always run smoothly.  Performing the functions of a judicial office, an occupant at times rises towards the heights and at times all will seem to reverse itself.  Living by canons of judicial ethics enables the occupant of judicial office to draw a line of life with an upward trend travelling through the middle of peaks and  valleys.  In legal circles, people are often inclined to remember the past as glorious and describing the present as full of setbacks and reverses.  There are dark periods of trial and fusion.  History bears testimony to the fact that there has never been an age that did not applaud the past and lament the present.  The thought process shall ever continue.  Henry George said – “Generations, succeeding to the gain of their predecessors, gradually elevate the status of mankind as coral polyps, building one generation upon the work of the other, gradually elevate themselves from the bottom of the sea.”  Progress is the law of nature.  Setbacks and reverses are countered by courage, endurance and resolve.  World always corrects itself and the mankind moves ahead again.  “Life must be measured by thought and action, not by time” – said Sir John Lubbock.

Observance of Canons of Judicial Ethics enables the judiciary to struggle with confidence; to chasten oneself and be wise and to learn by themselves the true values of judicial life.  The discharge of judicial function is an act of divinity.  Perfection in performance of judicial functions is not achieved solely by logic or reason.  There is a mystic power which drives the Earth and the Sun, every breeze on a flower and every smile on a child and every breath which we take.  It is this endurance and consciousness which enables the participation of the infinite forces which command us in our thought and action, which, expressed in simple terms and concisely put, is called the ‘Canons of Judicial Ethics’.

Judicial Ethics

Judicial ethics is an expression which defies definition.  In the literature, wherever there is a reference to judicial ethics, mostly it is not defined but attempted to be conceptualized.  According to Mr. Justice Thomas of the Supreme Court of Queensland, there are two key issues that must be addressed : (i)    the identification of standard to which members of the judiciary must be held; and (ii) a mechanism, formal or informal, to ensure that these standards are adhered to.  A reference to various dictionaries would enable framing of a definition, if it must be framed.  Simply put, it can be said that judicial ethics are the basic principles of right action of the judges.  It consists of or relates to moral action, conduct, motive or character of judges; what is right or befitting for them.  It can also be said that judicial ethics consist of such values as belong to the realm of judiciary without regard to the time or place and are referable to justice dispensation.

Need for

In all democratic constitutions, or even those societies which are not necessarily democratic or not governed by any constitution, the need for competent, independent and impartial judiciary as an institution has been recognized and accepted.  It will not be an exaggeration to say that in modern times the availability of such judiciary is synonymous with the existence of civilization in society.  There are constitutional rights, statutory rights, human rights and natural rights which need to be protected and implemented.  Such protection and implementation depends on the proper administration of justice which in its turn depends on the existence and availability of an independent judiciary.  Courts of Law are essential to act and assume their role as guardians of the Rule of Law and a means of assuring good governance.  Though it can be said that source of judicial power is the law but, in reality, the effective exercise of judicial power originates from two sources.  Externally, the source is the public acceptance of the authority of the judiciary.  Internally and more importantly, the source is the integrity of the judiciary.  The very existence of justice-delivery system depends on the judges who, for the time being, constitute the system.  The judges have to honour the judicial office which they hold as a public trust.  Their every action and their every word – spoken or written – must show and reflect correctly that they hold the office as a public trust and they are determined to strive continuously to enhance and maintain the people’s confidence in the judicial system.

Alexander Hamilton once said ___ “The judiciary . . .  has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.  It may truly be said to have neither Force nor Will but merely judgment…”.[8] The greatest strength of the judiciary is the faith of the people in it.  Faith, confidence and acceptability cannot be commanded; they have to be earned.  And that can be done only by developing the inner strength of morality and ethics.

ATTEMPTED CODIFICATION OF CANONS OF JUDICIAL ETHICS

People are responsible for their opinions, but providence is responsible for their morals (W.B. Yeats in Christopher Hassall).    The Constitution of India provides for an independent judiciary.  It is insulated against any influence of any other wing of governance or any other agency or authority.  Speaking in the Constituent Assembly of India, its President Dr. Rajendra Prasad emphasized the need for the Indian Judiciary to be independent of the Executive and competent in itself.  There was a long discussion as to how the twin objects could be achieved.  It has been unanimously accepted in all the civilized countries of the world that an independent judiciary is the backbone of civilized governance.  It needs to be constantly guarded against external influences.  Over the time, the framers of different constitutions have realized that independence of the judiciary and the protection of its constitutional position is the result of a continuous struggle – an ongoing and dynamic process.  The constitutional safeguards provide external protection for independence and strength of the judiciary.  At the same time, the judiciary itself and socio-legal forces should believe in the independence of the judiciary.  It is of paramount importance, that the judiciary to remain protected must be strong and independent from within, which can be achieved only by inculcating and imbibing canons of judicial ethics inseparably into the personality of the judges.  Ethics and morality cannot be founded on authority thrust upon from outside.  They are the matters of conscience which sprout from within.  Sukra Neeti (IV-5-14-15) enumerates five vices which every judge should guard against to be impartial.  They are: (i) raga (leaning in favour of a party), (ii) lobha (greed), (iii) bhaye (fear), (iv) dvesha (ill-will against anyone) and (v) vadinoscha rahashruthi (the judge meeting and hearing a party to a case secretly, i.e. in the absence of the other party).[9] Socrates counselled judges to hear courteously, answer wisely, consider soberly and decide impartially.  Someone has commented that these four virtues are all aspects of judicial diligence.  It is suggested that Socrates’ list needs to be supplemented by adding the virtue of acting expeditiously.  But diligence is not primarily concerned with expedition.   Diligence, in the broad sense, is concerned with carrying out judicial duties with skill, care and attention, as well as with reasonable promptness.

I read a poem (the name of the poet unfortunately I will not be able to quote, as it was not there, where I read it) which describes the qualities of a judge.  It reads,

“God give us men, a time like this demands;

Strong minds, great hearts, true faith and ready hands;

Men whom the lust of office does not kill;

Men whom the spoils of office cannot buy;

Men who possess opinions and a will;

Men who have honour; men who will not lie;

Men who can stand before a demagogue

and damn lies treacherous flatteries without talking;

Tall men, sun-crowned, who live without the fog;

In public duty and in private thinking.

However, they may be trained to strengthen

those who are weak and wronged.”

Late Justice Shiv Dayal during his tenure as Chief Justice of the High Court of Madhya Pradesh brought out Judges’ Diary as an official publication of the High Court.  It included Judge’s Prayer running into three stanzas.  Invoking the mercy of the Supreme Lord, he described the Judges as “Thy servants whom Thou sufferest to sit in earthly seats of judgement to administer Thy justice to Thy people”.  He begs from the infinite mercy of the Supreme Lord, so as “to direct and dispose my heart that I may this day fulfil all my duty in Thy fear and fall into no error of judgment.”  In the third stanza, he says ___ “Give me grace to hear patiently, to consider diligently, to understand rightly, and to decide justly!  Grant me due sense or humility, that I may not be misled by my willfulness, vanity or egotism”.  Rightly, the Judges are something special in the democratic form of government governed by a Constitution and, therefore, the most exacting standards can be none too high.[10]

Speaking of Felix Frankfurter as a judge, New York Times called him great “not because of the results he reached but because of his attitude towards the process of decision.  His guiding lights were detachment, rigorous integrity in dealing with the facts of a case, refusal to resort to unworthy means, no matter how noble the end, and dedication to the Court as an institution”.[11] Long back, in 1852, Bacon wrote in one of his essays, “Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident.  Above all things, integrity is their portion and proper virtue.”

The book ‘Lives of the Chief Justices of England’ (published, in 1858), reproduced the qualities of a Judge written in his own handwriting by Lord Hale which he had laid down for his own conduct as a Judge.  He wrote,[12] ___

Things necessary to be continually had in remembrance.

“1.  That in the administration of justice I am intrusted for God, the King, and country; and therefore,

“2.  That it be done, 1. uprightly; 2. deliberately; 3. resolutely.

“3.  That I rest not upon my own understanding or strength, but implore and rest upon the direction and strength of God.

“4.     That in the execution of justice I carefully lay aside my own passions, and not give way to them, however provoked.

“5.     That I be wholly intent upon the business I am about, remitting all other cares and thoughts as unseasonable and interruptions.  “And, while on the Bench, not writing letters or reading newspapers.”

“6.     That I suffer not myself to be prepossessed with any judgment at all, till the whole business and both parties be heard.

“7.     That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard.

“8.     That in business capital, though my nature prompt me to pity, yet to consider there is a pity also due to the country.

“9.     That I be not too rigid in matters purely conscientious, where all the harm is diversity of judgment.

“10.   (Not reproduced)

“11.   That popular or court applause or distaste have no influence in anything I do, in point of distribution of justice.

“12.   Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice.

“13.   (Not reproduced)

“14.   (Not reproduced)

“15.   (Not reproduced)

“16.   To abhor all private solicitations, of what kind soever, and by whomsoever, in matters  depending.

“17.   (Not reproduced)

“18.   To be short and sparing at meals, that I may be the fitter for business.”

THE CONCEPT OF JUDGESHIP IN GITA

According to Shrimad Bhagvad Gita, a Judge is a person bestowed with ‘excellence’.  This concept, I am inclined to mention in the context of the year 2005 being an ‘Year of Excellence in Judiciary’.  A judge ought to be bestowed with the sense of complete detachment and humility.  He ought to remember that he is not himself an author of his deeds.  He is only an actor who has to play his role conforming to the script which represents the Will of the Author-playwright and thus surrendering himself to the will of God.  According to Islam, such surrender is the supreme act of religion.  While the essence of Christian daily prayer is – “Thy will be done, O Lord!”.  A judge, according to religious concepts whether of Hinduism, Islam or Christianity, would never be heard claiming with egotism that a particular judgment was written by him or a particular sentence or decree was pronounced by him.  He would always feel and proclaim that all that he had done or he does is to carry out the will of God. His every action he would surrender to the God and thereby be a totally detached and humble person.  The seriousness of the function performed by him would never disturb or overtake him in his deeper mental state, just as an actor on the stage may fight, kill or love but he is the least affected one, as he never forgets it is a play after all.  This detachment is an equilibrium born of knowledge.  The Lord says – “He who is the same to foe and friend and also in honour and dishonour, who is the same in cold and heat, in pleasure and pain, who is free from attachment, to whom censure and praise are equal, who is silent __ uncomplaining __ content with anything, homeless, steady-minded, full of devotion  __ that man is dear to me.”[13]

“The essence of the teaching of the Gita is to transform karma into karma yoga: to be active in body but detached in mind.”[14]

Hindu philosophy beautifully compares a judge with a flower which would never wither and remains ever fresh.  An anecdote very appropriately explains this concept – “A religious discussion was to take place between Adi Shankaracharya and Mandan Mishra. Sharda or Saraswati was judge. Both were offered similar asanas to sit on. Having plucked fresh flowers, Sharda strung two identical garlands. She put them round the necks of the two scholars and said, “During the discussion, the garlands will decide the winner and the loser. The wearer of the garland whose flowers fade first will be considered to have lost….”  Sharda maintained that he who possessed intellectual clarity, power of thinking and self-confidence will be calm and peaceful.  His voice will be like the cool spring. Therefore, the flowers will remain fresh for a longer time. On the other hand, one who does not have a clear intellect or a strong sense of logic or whose self-confidence staggers, will be frustrated. His voice will become harsh, the circulation of blood in his veins will become rapid and his breath will become hot. Hence the flowers around his neck will wither sooner.”[15] The fragrance and freshness of flowers become a part of the personality of a judge if what he thinks and what he does are all based on such values as are the canons of judicial ethics.

THREE DOCUMENTS

Canons of judicial ethics have been attempted, time and again, to be drafted as a Code.  Several documents of authority and authenticity are available as drafted or crafted by several fora at the national and international level.  The fact remains that such a code is difficult to be framed and certainly cannot be consigned to a straitjacket.  Mostly these canons have originated in and have been handed down by generation after generation of  judges by tradition and conventions.  If any reference is required to be made to documents, I would choose to confine myself by referring to three of them : –

(i)                                         Restatement of Values of Judicial Life adopted by the Chief Justices’ Conference of India, 1999;

(ii)                                      The Bangalore Principles of Judicial Conduct, 2002

(iii)                                    The Oath of a Judge as contained in the Third Schedule of the Constitution of India.

(i) Restatement of Values of Judicial Life (1999)

On May 7, 1997, the Supreme Court of India in its Full Court adopted a Charter called the “Restatement of Values of Judicial Life” to serve as a guide to be observed by Judges, essential for independent, strong and respected judiciary, indispensable in the impartial administration of justice.  This Resolution was preceded by a draft statement circulated to all the High Courts of the country and suitably redrafted in the light of the suggestions received.  It has been described as the ‘restatement of the pre-existing and universally accepted norms, guidelines and conventions’ observed by Judges.  It is a complete code of the canons of judicial ethics.  It reads as under:

  1. Justice must not merely be done but it must also be seen to be done.  The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary.  Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.
  2. A Judge should not contest the election to any office of a Club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.
  3. Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.
  4. A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
  5. No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.
  6. A Judge should practice a degree of aloofness consistent with the dignity of his office.
  7. A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.
  8. A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.
  9. A Judge is expected to let his judgments speak for themselves.  He shall not give interviews to the media.
  10. A Judge shall not accept gifts or hospitality except from his family, close relations and friends.
  11. A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.
  12. A Judge shall not speculate in shares, stocks or the like.
  13. A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person.  (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business).
  14. A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.
  15. A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available.  Any doubt in this behalf must be got resolved and clarified through the Chief Justice.
  16. Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.

These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but illustrative of what is expected of a Judge.

The above “restatement” was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999.  All the High Courts in the country have also adopted the same in their respective Full Court Meetings.

(ii) The Bangalore Draft Principles

The values of judicial ethics which the Bangalore Principles crystallises are : (i) independence (ii) impartiality , (iii) integrity, (iv) propriety (v) equality and (vi) competence & diligence.

  1. The above values have been further developed in the Bangalore Principles as under:-
  1. Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial.  A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

  1. Impartiality is essential to the proper discharge of the judicial office.  It applies not only to the decision itself but also to the process by which the decision is made.

Integrity is essential to the proper discharge of the judicial office.

  1. Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.

Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.

  1. Competence and diligence are prerequisites to the due performance of judicial office.

(vii)   ImplementationBy reason of the nature of judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement these principles if such mechanisms are not already in existence in their jurisdictions.

The Preamble to the Bangalore Principles of Judicial Conduct states inter alia that the principles are intended to establish standards for ethical conduct of judges.  They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct.  They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary.  These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge.   There are a few interesting facts relating to the Bangalore Principles.  The first meeting to prepare the Draft Principles was held in Vienna in April 2000 on the invitation of the United Nations Centre for International Crime Prevention, and in conjunction with several other institutions concerned with justice administration.  In preparing the draft Code of Judicial Conduct, the core considerations which recur in such codes were kept in view.    Several existing codes and international instruments more than three in number including the Restatement of Values of Judicial Life adopted by the Indian judiciary in 1999 were taken into consideration.  At the second meeting held in Bangalore in February 2001, the draft was given a shape developed by judges drawn principally from Common Law countries.  It was thought essential that it will be scrutinized by judges of all other legal traditions to enable it to assume the status of a duly authenticated international code of judicial conduct.  The Bangalore Draft was widely disseminated amongst judges of both common law and civil law systems and discussed at several judicial conferences.  The draft underwent a few revisions and was finally approved by a Round-Table Meeting of Chief Justices (or their representatives) from several law system, held in Peace Palace in The Hague, Netherlands, in November 2002.  ‘Accountability’ as one of the principles which was included in the original draft was dropped in the final draft.  It is apparently for two reasons.  Firstly, it was thought that the principles enshrined in the Bangalore Principles presuppose the ‘accountability’  on the part of the judges and are inherent in those principles.  Secondly, the mechanism and methodology of ‘accountability’ may differ from country to country and therefore left to be taken care of individually by the participating jurisdictions.

(iii) The oath or affirmation by Judge

The Constitution of India obligates the Indian Judiciary to reach the goal of securing to all its citizens __ Justice, Liberty, Equality and Fraternity. How this goal is to be achieved is beautifully summed up in the form of oath or affirmation to be made by the Judges of the Supreme Court and High Courts while entering upon the office.

Swearing in the name of God or making a solemn affirmation a Judge ordains himself:-

  1. that I will bear true faith and allegiance to the Constitution of India as by law established;
  2. that I will uphold the sovereignty and integrity of India;
  3. that I will truly and faithfully and to the best of my ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill-will; and
  4. that I will uphold the Constitution and the laws.

In my humble opinion, the oath of a Judge is a complete Code of Conduct and incorporates therein all the canons of judicial ethics.

The judiciary has been trusted and hence entrusted with the task of upholding the Constitution and zealously and watchfully guarding the constitutional values.  The oath administered to a judge ordains him to uphold the Office as a citadel of public justice and public security to fulfil the constitutional role assigned to the Judiciary.

“The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective.  It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers.”[16] This is the principle of independence of judiciary which  judges must keep in mind while upholding the Constitution and administering the laws.

Oath of a Judge _ analysed

Every word and expression employed in the oath of a judge is potent with a message.  The message has to be demystified by reading between the lines and looking beyond what meets the eyes.

An option to swear in the name of God or to make a solemn affirmation is suggestive of secular character of the oath.

A judge must bear not only faith but ‘true faith’ and ‘allegiance’ to the Constitution of India.  The oath demands of a judge not only belief in constitutional principles but a loyalty and a devotion akin to complete surrender to the constitutional beliefs.  Why ?

“Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law.  Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies.  Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill-will or affection.  Justice without fear or favour, ill-will or affection, is the cardinal creed of our Constitution and a solemn assurance of every Judge to the people of this great country ……. an independent and impartial judiciary is the most essential characteristic of a free society.[17]“ The arch of the Constitution of India pregnant from its Preamble, Chapter III (Fundamental Rights)  and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice __ social, economic and political  __ to every citizen through rule of law.  Existing social inequalities need to be removed and equality in fact is accorded to all people irrespective of caste, creed, sex, religion or region subject to protective discrimination only through rule of law.  The Judge cannot retain his earlier passive judicial role when he administers  the law under the Constitution to give effect to the constitutional ideals.  The extraordinary complexity of modern litigation requires him not merely to declare the rights to citizens but also to mould the relief warranted under given facts and circumstances and often command the executive and other agencies to enforce and give effect to the order, writ or direction or prohibit them to do unconstitutional acts.   In this ongoing complex of adjudicatory process, the role of the Judge is not merely to interpret the law but also to lay new norms of law and to mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution meaningful and a reality.[18]

The sovereignty and integrity of India has to be upheld.  Constitution itself would cease to exist, if, God forbid, the sovereignty and integrity of India were lost.

The duties associated with the Office of a judge are too sacrosanct and hence demand the judicial functioning  with ‘the best of ability, knowledge and judgment’ of the judges. It is not enough to be a law graduate or to have put in a number of years of practice or to have gained experience by serving as a judicial  officer for a specified number of years. Their ability and knowledge associated with the clarity of purpose and methods which the judges display enables the judicial system to perform to its optimum efficiency.  The role of the judge obligates him to continue to invest in up-dating his knowledge of law and skills of justice dispensation.  The holder of the Office if not able and knowledgeable would not have the confidence to function, much less with independence.  It is said :

Strange, how much you’ve got to know;

Before you know, how little you know.[19]

Independence and Impartiality

‘Independence’ and ‘impartiality’ are most crucial concepts.  The two concepts are separate and distinct.  ‘Impartiality’ refers to a state of mind and attitude of the court or tribunal in relation to the issues and the parties in a particular case,  while ‘independence’  refers not only to the state of mind or attitude, but also to a status or relationship to others ­__ particularly to the executive branch of Government __ that rests on objective conditions or guarantees.[20]

According to Chief Justice Lamer : “The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means”  to an end. If judges could be perceived as “impartial”  without judicial “independence”, the requirement of independence would be unnecessary. However,  judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone,  a necessary prerequisite for judicial impartiality.”

The concept of judicial independence has been described in golden letters in one of the judgments of the Supreme Court of India.   “To keep the stream of justice clean and pure,  the Judge must be endowed with sterling character, impeccable integrity and upright behaviour.  Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself.  The Judges of higher echelons,  therefore,  should not be mere men of clay with all the frailties and foibles,  human failings and weak character which may be found in those in other walks of life.   They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort.   The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary.  In short,  the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.”[21] Unless the judges function without fear and favour, the question of their being impartial or independent does not arise.  “Judges owe their appointment to the Constitution and hold a position of privilege under it.   They are required to ‘uphold the Constitution and the laws’, ‘without fear’ that is without fear of the executive;  and ‘without favour’ that is without expecting a favour from the executive.  There is thus a fundamental distinction between the master and servant relationship between the government and the Judges of High Courts and the Supreme Court.” [22]

Independence and impartiality and objectivity would be tall claims hollow from within, unless the judges be honest __ honest to their Office, honest to the society and honest to themselves.  “…the society’s demand for honesty in a judge is exacting and absolute.  The standards of judicial behaviour, both on and off the Bench, are normally extremely high.  For a judge, to deviate from such standards of honesty and impartiality is to betray the trust reposed in him. No excuse or no legal relativity can condone such betrayal. From the standpoint of justice, the size of the bribe or scope of corruption cannot be the scale for measuring a Judge’s dishonour.  A single dishonest Judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.  A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature.  The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm. ‘A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State.  But a Judge must keep himself absolutely above suspicion; to preserve the impartiality and independence of the judiciary and to have the public confidence thereof.” [23]

To perform the duties of judicial office without fear or favour, affection or ill-will is the same thing as performing the duties with independence, impartiality and objectivity.  In order to achieve this a certain degree of aloofness is required to be maintained by the judges.  According to Justice P.B. Gajendragadkar – “Judges ordinarily must observe certain rules of decorum in their social behaviour. A little isolation and aloofness are the price which one has to pay for being a judge, because  a judge can never know which case will come before him and who may be concerned in it. No hard and fast rule can be laid down in this matter, but some discretion must be exercised.”[24] The concept is best demonstrated in a real life anecdote which I would like to reproduce in the words of Justice Gajendragadkar himself.  He records –

“Another feature which I did not very much appreciate was that judges used to accept invitations for dinners from lawyers far too frequently. I consistently refused to join such dinners.  When S.R. Das was due to retire,  there were a number of dinners and S.K. Das found that I was not accepting any one of these invitations. He came to me and said: “Brother, accept at least one so that the Chief may not misunderstand you.”  So I did accept one and, when we met to dine in a hotel, I was amazed to see that we were not dining in an exclusive room but in the general hotel itself, which was otherwise crowded by other diners and it was a lawyer who was entertaining us as a host to the large number of visitors present in the hotel. With my Bombay background, I did not relish this prospect at all;  and not feeling happy about such dinners I conveyed my views to S.R. Das. With his characteristic tact, he said, “Yes, I see your point.” [25]

However, it is interesting to note that R.A. Jahagirdar (who has contributed a beautiful preface to the autobiography and, in fact, he is the one who was successful in persuading Justice Gajendragadkar to write his memoirs) has put an asterisk on the words ‘Bombay background’ and inserted a footnote which reads – “The Bombay background has considerably changed.  Cases of judges being entertained in luxury hotels are not infrequent and have been discussed in the Press”.

Justice Gajendragadkar goes on to record –

“The undesirable and perhaps intended motivation for such invitation for dinners became patent in another case. That was a dinner arranged ostensibly by a lawyer who was a benamidar of the proprietor of a hotel chain. So far as I know, I and K.C. Das Gupta did not attend. Most of others did. The dinner was held on a Saturday at a hotel. On Monday next, before the Bench over which B.P. Sinha presided and I and K.C. Das Gupta were his colleagues,  we found that there was a matter pending admission between the management of the hotel chain and its workmen. I turned to Sinha and said:  “Sinha, how can we take this case?  The whole lot of supervisors and workmen in the hotel is sitting in front and they know that we have been fed in the hotel ostensibly by the lawyer but in truth at the cost of the hotel, because the very lawyer who invited the judges to the dinner is arguing in the hotel’s appeal.” Sinha, the great gentleman that he was, immediately saw the point and said: “This case would go before another Bench.” [26]

A sad incident is quoted by Justice V.R. Krishna Iyer while describing how he refused to budge an inch though tremendous pressure was sought to be built upon him, by none else than the then Law Minister Late Shri Gokhale who himself has had a brief stint as a judge in Bombay, to pass an absolute order of stay on the judgment of Allahabad High Court in the case of Indira Gandhi vs.  Raj Narain.  The narrated incident has a lesson to learn.  I may quote –

“By way of a distressing deviation, I may mention an anecdote of a few years ago. A vacation judge was telephoned by an advocate from a five star hotel in Delhi.  He mentioned that he was the son of the then Chief Justice and wished to call on the vacation judge.  Naturally, since the caller was an advocate, and on top of it, the son of the Chief Justice, the vacation judge allowed him to call on him.  The ‘gentleman’  turned up with another person and unblushingly told the vacation judge that his companion had a case that day on the list of the vacation judge. He wanted a ‘small’ favour of an ‘Interim stay’.  The judge was stunned and politely told the two men to leave the house. Later, when the Chief justice came back to Delhi after the vacation, the victim judge reported to him about the visit of his son with a client and his ‘prayer’ for a stay in a pending case made at the home of the Judge.  The Chief Justice was not disturbed but dismissed the matter as of little consequence. ‘After all, he only wanted an interim stay’, said the Chief justice, ‘and not a final decision’. This incident reveals the grave dangers of personal visits to judges’ residences  under innocent pretexts.  This is the way functional felony creeps into the judiciary.  A swallow does not make a summer may be, but deviances once condoned become inundations resulting in credibility collapse of the institution”[27]

He says – “Judgeship has diamond-hard parameters”.

A complete seclusion from society might  result in judges becoming too removed from society and the realities of social life.  Common knowledge of events and robust commonsense need knowledge of human behaviour but for which the judge may be incapacitated from doing complete justice or exercising discretion in the given facts of a case before him.  An isolated judge runs the risk of  viewing facts in a vacuum which in its turn may lead to an unjust decision.

To strike an equitous balance between the need for maintaining certain degree of aloofness and the necessity for moving in society to understand it so as to be a practical judge, he shall have to conscientiously keep a vigil of his own movements and decide thoughtfully where to go and where not to go.  Experience and caution would be the best guide of a judge in this regard.  He ought to remember that what he thinks of himself is not so material as how people would perceive and interpret his movements and presence at a given place.

RANDOM THOUGHTS :

Four Qualities in a Judge

A judge has to be possessed of excellence not only from within but he should also visibly display the functional excellence which is necessary to fulfil the constitutional promise of justice by the judiciary as a whole.  Four qualities are needed in a judge which are symptomatic of functional excellence.  They are: (i) Punctuality (ii) Probity (iii) Promptness; and (iv) Patience.

Justice Hidayatullah has placed observance by judges of the punctuality of time on a very high pedestal.  According to him a judge who does not observe punctuality of time does not believe in rule of law.

Probity is uprightness; moral integrity; honesty.

According to Justice V.R. Krishna Iyer the judges who do not pronounce judgment in time commit turpitude.  He notes with a sense of sorrow –

“It has become these days, for the highest to the lowest courts’ judges, after the arguments are closed, take months and years to pronounce judgments even in interlocutory matters – a sin which cannot be forgiven, a practice which must be forbidden, a wrong which calls for censure or worse.”[28]

Lord Denning puts it mildly by way of tendering good advice for a new judge.  He says that when judgment was clear and obvious it was for the benefit of the parties and the judge himself that judgment should be delivered forthwith and without more ado.  Though, the art is difficult and requires great skills but practice can enable perfection.[29] However, not all judgments can be delivered ex tempore; there are cases in which doubts are to be cleared, law has to be settled and conflicts are to be resolved either by performing the difficult task of reconciling or the unpleasant task of overruling.  Such judgments need calm and cool thinking and deep deliberations.  Such judgments must be reserved but not for an unreasonable length of time.

Conduct of Judge in private

When a judge sits on trial, he himself is on trial.  The trust and confidence of ‘we the people’ in judiciary stands on the bedrock of its ability to dispense fearless and impartial justice.  Any action which may shake that foundation is just not permitted.  Once having assumed the judicial office, the judge is a judge for 24 hours. It is a mistaken assumption for any holder of judicial office to say that I am a judge from 10 to 5 and from 5 to 10 it is my private life.  A judge is constantly under public gaze.  “Judicial office is essentially a public trust.  Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences.  He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process.  Society, therefore,  expects higher standards of conduct and rectitude from a Judge.  Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself.  It is, therefore,  a basic requirement that a Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore,  the Judge can ill-afford to seek shelter from the fallen standard in the society.” [30]

Patience and Tolerance:

The greatest quality of a Judge is to have patience which is sister virtue of calmness.  Calmness is as essential as fearlessness and honesty to the exercise of good judgment in times of aroused feelings and excited passion.

Patience implies the quietness or self-possession of one’s own spirit under sufferance and provocation.  Since it has a tranquillising effect, patience is the best remedy for every affliction.  The Bible says that if patience or silence be good for the wise, how much the better for others – unwise or not so wise.  Sometimes we turn our anger upon the person responsible for hurting us; we are also likely to blame someone for any kind of mishap.  By learning to be patient, one can cultivate the art of reigning in bad temper and hasty decision-making.  Patience yields many good things.  It is also a necessary ingredient of genius.  Patience can solve problems, avert wars and disasters, and lead us to the path of truth.

The power of patience leads us to self-inspection, to the admission of errors and the capacity for forgiveness.  A learned man tells us  that misfortune can be turned into fortune through wisdom.  The acquisition of wisdom needs five steps.  The first is patience, the second is listening, the third is understanding, the fourth is pondering and the fifth is practice – all qualities needed in a judge.  To be patient one has to be humble.  To cultivate patience, anger management plays a crucial role.  “He who is slow to anger is better than the mighty and he that rules his spirit than he who takes a city.”  The world exists only because of self-restraint exercised by the mighty.  Power coupled with impatience can be very dangerous.  Leaders and Judges who are impulsive are greatly feared and are considered impractical.  Anger begets violence and cannot be easily repressed.  At times anger is provoked by misunderstanding and may actually have no basis in reason.  Anger can be subverted with forgiveness.

One of the ways to be patient is through tolerance.  Tolerance recognizes individuality and diversity; it removes divisiveness and diffuses tension created by ignorance.  Tolerance is an inner strength, which enables the individual to face and overcome misunderstandings and difficulties.  A tolerant person is like a tree with an abundance of fruits; even when pelted with sticks and stones, the tree gives its fruit in return.  Without tolerance, patience is not possible.  Tolerance is integral and essential to the realization of patience. [31]

Rational Utilisation of Time

On the day I was sworn in as a Judge of the High Court, Chief Justice (Retd.) G.G. Sohani, an illustrious Judge of the High Court of Madhya Pradesh, later the Chief Justice of Patna High Court very affectionately told me a few do’s and don’ts for any judge.  Amongst other things, he told me that working hours of the court are meant for discharging only judicial work.  No part of judicial working hours should be diverted to administrative work.  Full Court and Administrative Committee meetings should be invariably held on non-working days or, before or after court sitting hours.  The judges are not supposed to proceed on leave unless and until the absence is unavoidable.  The judges are also not supposed to participate in ceremonial functions like inaugurations or delivering lectures by abstaining themselves from the court.  All this does not tantamount to saying that a judge should neither relax nor rejuvenate himself.  Vacations are meant for rejuvenating the health of the judges so that they feel fit and also for reading so as to update their knowledge of law.  They must also spend a fixed time every day and in weekends with their family members so as to concentrate on judicial work during working hours.  I would treat this as a part of judicial ethics.

I am reminded of a Chief Justice, who speaking at a farewell function, marking the occasion of his demitting the office, made a witty remark ___ “After my retirement, I would like to interview the wives of the Judges and collect information from them as to what prevented them for not divorcing their husbands so far”.  Justice Devitt wrote in ‘Ten Commandments for the New Judge’ ___ “The greatest deterrent to a judge’s taking himself too seriously in any respect is a wise and observing wife who periodically will remark, ‘Darling! Don’t be so Judgey’ ”.[32]

EPILOGUE

An eminent jurist, Justice G.P. Singh, former Chief Justice and later Lokayukt of Madhya Pradesh, needs a mention here.  He believes that canons of ethics cannot be learnt simply by listening or be taught only by being told.  One must live by values to preach and emulating is the best way to learn.  His life as lived is full of examples and he has never delivered any precepts.  His brevity, lucidity and clarity in judgments is comparable with Privy Council decisions.  He has always believed in simple living and high thinking.  His principles of statutory interpretation (Nine Editions, published) and Law of Torts both of international standards, speak aloud of the height of his learning.

Great persons live great lives and leave behind indelible imprints on the sand of time.  The imprints are not faded though several foot-steps have crossed them.  A very inspiring anecdote has been narrated by Fali S. Nariman, Senior Advocate.[33]

A Chief Justice of the New York State Court of Appeals on his first appointment as Chief Judge proudly showed his wife the chair in the court-room of his illustrious predecessor-in-office of nearly half a century ago Chief Justice Benjamin Cardozo (a legend amongst Judges of the United States).  And he said to his wife in a reverential whisper – “See – this is Cardozo’s chair and this is where I will sit”.  His wife responded not very reverentially: “Yes – and after fifty years and five more Chief Justices it will still be Cardozo’s chair”!

The times would run through and yet Motilal Setalvad would be remembered as Motilal Setalvad with none who could surpass him.

*********


[1] P.B. VACHHA, Famous Judges, Lawyers and Cases of Bombay, p. 153

 

[2] Source – SOLI J. SORABJEE, Senior Advocate and Former Attorney General for India

[3] Source – T.R. ANDHYARUJINA, Senior Advocate, Supreme Court and Former Solicitor  General of India.

[4] The Indian Advocate, Vol.XIII, 1991, p.72

[5] Source __ J.M. MUKHI, Bar-at-law

[6] G.L. SANGHI Remembering M.C. Setalvad, The Indian Advocate, Volume XXIII, 1991 Part II

[7] The Bombay Incorporated Law Society, Centenary, Volume 1894-1994, pp. 270-271

[8] E.C. GERHART, Quote It,  p.300

[9] M. Rama Jois, Trivarga Siddhanta, p.85.

[10] Nyay Diary, 1976

[11] E.C. GERHART, Quote It, p.289

[12] E.C. GERHART, Quote It, pp 297-298

[13] Gita, XII.18-19.

[14] K.S. Ram, ‘The World’s a Stage: We’re Mere Players’, The Speaking Tree, The Times of India

[15] Amrita Pritam, Fifty Fragments of Innerself, quoted in Sacred Space, The Times of India

[16] S.P. Gupta v.  Union of India, 1981 Supp. SCC 87, para 27.

[17] S.C. Advocates-on-Record Association & Ors. v.  Union of India, (1993) 4 SCC 441, para 273, per Ahmadi, J..

[18] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee & Ors., (1995)  5 SCC 457, para 41, per K. Ramaswamy, J.

[19] Anonymous

[20] University of New Brunswick Law Journal, Vol. 45, 1999, p.81.

[21] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee & Ors., (1995) 5 SCC 457, para 23, per K. Ramaswamy, J..

[22] Union of India v.  S.H. Sheth, (1977) 4 SCC 193, quoted in K. Veeraswami v.  Union of India & Ors.,  (1991)  3 SCC 655, para

[23] K. Veeraswami v.  Union of India & Ors., (1991)  3 SCC 655, para 79, 80, per Sharma, J.

[24] P.B. Gajendragadkar, To The Best of My Memory, p.138.

[25] ibid p.137.

[26] ibid pp.137-138

[27] V.R. Krishna Iyer, A Living Legend, p.130

[28]ibid p.138

[29] Edmund Heward, Lord Denning, A Biography, 2nd Edn., pp.35-36.

[30] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee & Ors., (1995)  5 SCC 457, para 21, per K. Ramaswamy, J.

[31] Ezekiel Malekar, Lessons on Patience and Tolerance, The Speaking Tree, The Times of India.

[32] E.C. GERHART, Quote It, p.290

[33] First Nani A. Palkhivala Memorial Lecture, 16th January, 2004

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CJI goes slow on judicial accountability

Posted in CJI SPEECHES, CONSTITUTION, JUDICIARY by NNLRJ INDIA on August 25, 2009

Manoj Mitta, TNN 25 August 2009, 01:11am IST

NEW DELHI: Chief Justice of India K G Balakrishnan’s dismissal of a conscientious objector in the judiciary as a “publicity seeker” is the  latest in a series of attempts by him in recent months to play down or cover up serious issues concerning judicial accountability.

Rather than addressing the public-interest arguments given by Karnataka high court judge D V Shylendra Kumar in favour of putting the declarations of assets by judges in the public domain, Justice Balakrishnan made a personal attack on him saying, “He wants publicity and such a thing is not good for a judge. Judges should not be publicity crazy.”

The CJI made no bones of his displeasure at Justice Kumar’s attempt at transparency even as he belatedly clarified, in damage-control mode, that judges were free to make public the details of their assets despite the institutional reservation maintained by him.
Such ambivalence has been a recurring feature in Justice Balakrishnan’s handling on the administrative side of other judicial accountability matters as well.

* The RTI application, which triggered the assets controversy, only sought to know whether judges had been filing declarations of their assets before the CJI in terms of a resolution adopted by all the judges of the Supreme Court on May 7, 1997. Since the resolution stipulated that the declarations would be held in confidence, the application filed by activist Subhash Chandra Agrawal did not ask for the details of any of the declared assets.

Yet, Justice Balakrishnan refused to answer under the RTI even the limited question whether the judges still complied with the 1997 resolution. The silence was mainly to buttress his claim that the CJI’s office was beyond the scrutiny of RTI and so no information lying there would ever be disclosed under that law.

CJI using different yardsticks for different judges?

* The in-house procedure of inquiry to deal with complaints against judges came into existence because of another resolution that had been adopted by the Supreme Court judges in 1997 on the very day they had resolved to file declarations of assets. Although some judges have since been probed and even punished under the in-house procedure, Justice Balakrishnan repeatedly said that the 1997 resolution relating to assets was purely “voluntary” and that judges would be willing to make their declarations public if a law required them to do so.

But the Bill that was introduced in the last session of Parliament in consultation with the CJI turned out to be a blatant attempt to keep the declarations of assets behind a veil of secrecy. The outrage over the opacity clause forced law minister Veerappa Moily to withdraw the Bill within minutes, in a major blow to the credibility of the judiciary.

When Justice Soumitra Sen of the Calcutta high court refused to resign despite his indictment by the in-house procedure, Justice Balakrishnan asked the government to initiate impeachment proceedings against him. But when it came to Justice Nirmal Yadav of the Punjab and Haryana high court in the cash-for-judge scam, the CJI made no such recommendation against her despite an even more severe indictment by the in-house procedure.

Instead, he allowed the CBI to drop the corruption case against Justice Yadav on the opinion of the attorney general. The inaction lent credence to Justice Yadav’s counter-allegation that other judges were involved in the scam.

When Justice R Reghupathy of the Madras high court made the sensational charge that a Union minister had tried to influence him in a pending case through a telephone call, Justice Balakrishnan’s initial reaction was to deplore the interference with the administration of justice.

Yet, the matter was allowed to die simply because it was found that a lawyer visiting Justice Reghupathy’s chamber had made the call to the minister and the judge had displayed enough alacrity not to take the mobile phone from him. Thanks to the quick burial of the scandal, there was no inquiry into the role of the lawyer concerned and his possible link with the minister.

In a glaring instance of double standards, Justice Balakrishnan has so far not invoked the in-house procedure of inquiry on the wealth of evidence submitted over a year ago by the Punjab vigilance bureau suggesting that touts were involving in fixing cases and judicial appointments. The CJI’s apathy has raised a stink because the bureau reports, accompanied by transcripts of intercepted telephone conversations, point to the complicity of two high court judges.

http://timesofindia.indiatimes.com/news/india/CJI-goes-slow-on-judicial-accountability/articleshow/4930668.cms

STATEMENT OF THE CJI IN THE CHIEF JUSTICES PROGRAMME

CONFERENCE OF THE CHIEF MINISTERS OF STATES AND

CHIEF JUSTICES OF THE HIGH COURTS

(New Delhi – August 16, 2009)

Speech by Hon’ble Mr. K.G. Balakrishnan,

Chief Justice of India

————————————————————————————-

Dr. Manmohan Singh (Hon’ble Prime Minister)

Dr. Veerappa Moily (Union Minister for Law and Justice)

Hon’ble Chief Ministers,

Esteemed colleagues from the Supreme Court,

Chief Justices of the High Courts,

And Ladies and Gentlemen,

This annual conference is a vital opportunity for all of us to take stock of the changes that are taking place in the judicial system. More importantly it is a meeting ground for all us to air our views and arrive at a consensus on how to tackle the multiple challenges faced by our justice-delivery system. In our routine deliberations as well as in the public discourse,there is a  onsistent emphasis on the arrears of cases pendingbefore the courts at various levels. For instance as per figuresavailable for June 30, 2009 – there were a total of 52,592 (Fifty Two Thousand Five Hundred and Ninety Two) cases pending before the Supreme Court, an aggregate of 40,17,956 (Forty Lakh Seventeen Thousand Nine Hundred and Fifty Six) cases pending before the High Courts and 2,71,19,092 (Two Crore Seventy One Lakhs Nineteen Thousand and Ninety-Two) cases pending before all the subordinate courts put together.1 In spite of these daunting numbers, it is important for us to concentrate our attention on  devising solutions rather than dwelling on the extent of the problems. In recent times, I have repeatedly urged the need for expanding our judicial system by ensuring the expeditious filling up of vacancies as well as the sanctioning of more positions for judicial officers. There has undoubtedly been a chronic shortage of judicial officers, especially at the subordinate level and there are also some structural obstacles which discourage talented law graduates from joining the judicial services. In 1987, the 124th Report of the Law Commission had indicated that our judicial system needed to be expanded by atleast five times in order to meet the ‘judge to population’ ratio of developed nations. That is of course a very ambitious target which may take years to attain, but we must take gradual and firm steps in that direction.

It has been heartening to note that a considerable number of vacancies at the subordinate level have been filled in recent months. As per figures available for June 30, 2009 – there were 2,783 (Two Thousand Seven Hundred and Eighty Three) vacancies out of 16,946 (Sixteen Thousand Nine Hundred and Forty Six) sanctioned posts. There is, of course, a compelling need for the respective State Public Service Commissions and the various High Courts to work in close coordination for filling up the remaining vacancies. In this respect, I urge all the State Governments to ensure that all of the sanctioned positions are filled up in a time-bound manner.

The Union Government has also been very responsive to our demands for the establishment of more CBI Courts and FamilyCourts – with some concrete steps being taken in that direction. However, I would like to briefly draw your attention to the proposed Gram Nyayalayas scheme which would bring about a substantial change to the reach and quality of our justice-delivery system.

The Gram Nyayalayas Act which was passed by the Parliamentin December 2008 – envisages the creation of courts at the level of Intermediate Panchayats or a group of contiguous Gram Panchayats. These village-level courts would be manned by judicial officers of a rank equivalent to a Civil Judge (Jr. Dv.) or a Judicial Magistrate First Class (JMFC) and they will be known as ‘Nyaya-Adhikaris’. It has been estimated that nearly 3,000 judicial officers will be needed in order to implement this scheme. There is tremendous potential in the Gram Nyayalayas scheme since the intention is to reduce the costs borne by litigants in approaching courts located at district-centres.

The underlying philosophy is of course to bring justice to thedoorsteps of rural citizens. However, we must deliberate upon some of the practical concerns, namely the financial commitments needed for the establishment of the Gram Nyayalayas as well as the serviceconditions of the judicial officers. It is important to create sufficient incentives for practicing lawyers who are talented and motivated to take up these positions.2

The higher pendency figures do not necessarily mean that the Courts are becoming more accessible to all sections of society. Some academic studies also seem to confirm the thesis that the increasing caseload does not necessarily bear a correlation to improvements in access to justice for under-privileged anddisadvantaged sections. In other words even as we dwell on the size of ‘court-dockets’, there is a very real danger that many segments of our citizenry are being increasingly alienated from our judicial system.It is in this sense that our main worry should not be confined to the size of the case-load before the courts. Instead, our collective efforts should be directed towards devising and streamlining measures for ensuring that most of our citizens should have the ability as well as the incentive to take their disputes to the judicial system. Another worrying factor is the increasing disparity between the volume of civil and criminal cases pending before our subordinate courts. For instance, as per the figures available for June 30, 2009 – there were approximately 1.94 crore criminal cases pending as opposed to approximately 76 Lakh civil cases. There could be several explanations for this disparity. One possible reason is that more criminal cases are being filed since the Parliament has passed legislations in recent years which have created effective criminal remedies for disputes arising out of dishonour of cheques, cruelty in marriage and numerous offences under special legislations. It is quite reasonable to assume that stronger criminal remedies encourage more parties to move the criminal law machinery, which translates into more criminal cases being filed before the Courts. However, there seems to be an opposite trend in the civil justice system. One could very well argue that there is a comparatively lesser number of civil cases being filed since parties are wary of the undue delay and complications associated with civil litigation. This aspect deserves a lot of attention since the problems of the civil justice system are not given the same kind of media attention that is reserved for sensational criminal cases.While expanding the size of the judicial system is an importantobjective, I must also highlight the importance of pursuing several other strategies to streamline the administration of justice. All of you are conversant with the benefits of resorting to Alternative Dispute Resolution (ADR) methods, especially since civil judges are now empowered to refer disputes for resolution through Permanent Lok Adalats, Mediation and Negotiated settlements. Most of the High Courts and numerous District Courts have established ‘Mediation’ centres for the twin purpose of resolving disputes as well as trainingjudicial officers and lawyers in these methods. For many categories of cases filed before the courts – such as those relating to traffic offences and petty property disputes, methods such as conciliation and negotiation are far more appropriate than the traditional model of adversarial litigation. While the Legal Services Authorities have been increasingly organising Lok Adalats for many categories of disputes, it is also important to inform the general public about the utility ofthese methods. On account of incomplete information about the various options, an aggrieved party often chooses to proceed with lengthy-adversarial litigation instead of choosing more conciliatory methods. Even the Code of Criminal Procedure was amended in 2006 to include provisions for ‘plea-bargaining’ but public awareness about the same is quite limited.

It goes without saying that all of us need to think about and promote solutions that need not always be ‘Court-centric’. However, there is also another worrying factor that demands our attention on a ‘war-footing’. It is evident that more and more parties are approaching the Courts with the passage of time and the same is reflected in the fact that the rate of institution of newer proceedings has consistently outpaced the rate of disposal of cases.

In spite of all these structural problems, there have been somedecisive changes for the better. Of particular note, is the implementation of the E -Courts project under which thousands of judicial officers have been equipped with computer facilities. Information Technology (IT) tools are being progressively used in the administration of justice – especially for purposes such as notification of cause-lists as well as the publication of orders and judgments on court websites. Efforts are underway to devise comprehensive programmes which will help advocates, litigants and the general public to track the progress of ongoing cases. The National Judicial Academy (NJA) at Bhopal regularly organises programmes for judicial officers where they are imparted training in case-managementtechniques as well as knowledge about emerging areas of legalpractice and policy-changes. Special emphasis is placed on how a judge should be sensitive to the needs of litigants belonging to disadvantaged sections and must account for complications linked to social barriers such as those of caste, gender, class and religion among others. Most of the states have also established their own State Judicial Academies (SJA’s) which have intensified the training programmes for sitting judicial officers.

There are of course many other issues which call for our careful attention and deliberation in today’s programme. I hope that all of us can address the problems faced by our justice-delivery system in an environment of mutual understanding and cooperation. Thank You!

1 Pendency figures cited from Court News, April-June 2009 and material supplied by Supreme Court Registry

2 The Central Government is bearing the non-recurring expenditure of Rs. 18.00 lakhs per Nyayalaya, i.e., Rs. 912 crores. 50% of recurring expenditure Rs. 6.40 lakhs per Gram Nyayalaya, i.e., Rs. 486 crores (i.e. Rs. 1398 crores i.e. Rs. 1400 crores)

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