“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.”

Advertisements

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

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

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

Related Articles

CJI Kapadia laments lawyers’ disinterest in law

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

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

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

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…)