the citizen and judicial reforms

THECITIZEN

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THECITIZEN

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IUDICIAL REFORMSUnder Indian Potity

Oniversql

Editor

Subhash C. Kashyap

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CONTENTS

Foreuortl

Tnble of Cases

PART I : INTRODUCTION

o Judiciary in Indian PolitySubhash C. Knslryap

PART II : JUDICIARY AND IUDICIAL REFORMS

. Why has Judiciary Failed?Shmti Bhushnn

r Judiciary and Judicial Reformsl.S. Vemw

. Some Aspects of fudiciaryRnjindar Sachar

o Judiciary and LegislatureBiplab Dasguptn

PART III: THE CITIZEN, TUSTICE AND TUDICIARY

o The Citizen and Judicial ReformsR.S. Pathak

The Citizen and the Performance of the IudiciarvShiuroj Pntil

Citizenship Values and Quality of fusticeShio Daval

Mechanism for Accountability and Making Justicemore Citizen-f riendly and lnexpensive

N.Vittal

Common Man and fudicial ReformsRandhir lailt

Fundamental Duties of Citizenship and Administration of lusticeK.V. Visltwanntlnn

PART IV: APPOINTMENT AND REMOVAL OFIUDGES

Quality of JudgesMurli C. Blnrnlnre

Appointment, Transfer and Removal of JudgesShynmlha Pappu

Vll

x

Jf,

69

IJ

81

6J

90

106

t25

IJU

147

LJZ

The Citizen and Judicial Reforms

Crlteria and Procedure for the Appointrnent of ]udgesMohendra P. Singh

Removal of Supreme Court and High Court JudgesSatya Praknsh Malaoiya

Independence of Judiciary, Appointment of Judgesand Rights of Citizens

Pinki Anand

Quality of JudgesS.S. Vishweshwaraiah

PART V: ADMINISTRATION OFIUSTICE

Probity in Administration of JusticeP.P. Rao

Pendency of CasesP.K. Dat;e

.

Technology and JusticeP,V. Indiresan '

Subordinate Courts - Their lndependence, Appointmentsand Conditions of Service

K.N. Bhat

e Criminal Justice Administration in Myth and RealityRnnbir Singh

o . Reforms in the Crirninal Justice SystemD.R. Knarthikeyan

o Impact of Judicial Activism on Personal Laws - A Case StudyK.M.H.Rayappa

PART VI : JUDICIAL ACCOUNTABILITY ANDCONTEMPT IURISDICTION

. Contempt Jurisdiction - Its ParametersMohd. Sardar Ali Khan

o Contempt of Court and Accountability of JudiciaryAnil Diwan

r Judicial Accountability - Removal of Judges and Contempt of Court

25b

159

176

189

179

226

193

195

t97

206

217

238

1AE

Prashant Bhushan

Subject Index

259

268

FOREWORD

"We the people of India" have completed more than half_a_cenfury of ourlife as a sovereign Republic. There have been scores of achievements of -hi"hwe can be proud most legitimately. On the political plane, our greatestsuccesses have been (i) maintenance of the unity and integrity of the nation andsecular character of the polity, and (ii) preservaiion of freidom and democracv.on the negative side, however, we have not been able to fulfil the vision and thedreams.of our founding fathers. we have failed to bring "justice - social,:cgnoTrc and political" to all our citizens and to assure ,,the dignity of theindividual" citizen promised in the preamble to the Constitution of Indii.

Indian polity today is passing through difficult times. euestion marks arebeing raised about the functioning of the three organs of the state - theExecutive, the Legislature and the Judiciary. people are fast losing faith in theguglity, integrity and efficiency of most governmental irutitufrons. Evenjudieiary which was the last bastion of hope in our polity has begun to faceserious erosion in its credibility. The prevailing scenatio is indeed ?isturbing.A great deal has been written and debated on the weaknesses of the working Jfour

. Legislaturesi,, our political leadership; and our system of puEfic

administration - all these requiring basic reforms. However, iudiciary has beengenerally treated as a holy cow in this debate. people have been mosi reluctantto appraise the working of the Judiciary for ensuiing its accountability to thepegqle. It is high time that questions'are asked on who will judge theludges;lld \9- can we bring justice to the common person in

" .rudibli ana peoite_

friendly manner.

The centre for Policy Research has been involved for a rong time inundertaking studies in the field of good govemance. Recently, as a fart of itslarger project on political reforms, it organized in collaboration

'with .the

citizenship Development society a specialiied conference on ,The citizen andJudicial Reforms under Indian polity'. several other conferences were recentlyorganized by this Centre in different parts of the country which had devoted asession to reforming the Judiciary. This volume is edited by Dr. subhash CJGshyap. Honorary Research professor at *re centre for poricy Research and

viii The Citizen and Judicial Reforms

eminent constifutional expert. It is based on the selected paPers Presented at the

conference on 'The Citizen and fudicial Reforms under Indian Polity' organizedby us during April 13-14,2002 and includes a few special papers on judiciarydiscussed at earlier conferences on Political Reforms.

Besides a very comprehensive and incisive inhoduction by the editor, thepresent sfudy contains valuable contributions from some of the most

distinguished leaders moulding Indian public opinion - parliamentarians -

former Lok Sabha Speaker, Governors and Cabinet Ministers - eminent Judgesincluding former Chief fustices of India; jurists; leading advocates; and senioradministrators; and the academics. The topics covered in this volume includesome of the most sensitive issues like the citizens' woes with special reference tothe costs and delays of justice; the quality and procedures for appointment andremoval of judges; flaws in the system of adminishation of justice;

accountability of the |udiciary and contempt jurisdiction.

We are delighted to present this wcirk before the interested citizens of Indiaand all other readers. We hope that it wlll be read with interest and will help togenerate a wide national debate. We also hope that the ensuing debate willresult in taking effective corrective policy measures for ensuring citizen-oriented

iudicial reforms.

Needless to add the caveat that the views expressed in this book are those

of the individual writers and should not be ascribed to their sponsoringorganizations.

The publishers - Universal * deserve our thanks and admiration for theircooperation in bringing out this book with such speed and with good quality ofproduction.

KB LALLPresident, CDS

CHARANWADHVAPresident, CPR

TABLE OF CASESAdvocate on Record Association zr. Union of India, 1993 (4) SCC 441

Ajit Singh II 2,. State of Punjab, (1999) 7 KC 209

Ashok Kumar's case, (1985) 4 SCC 417

Attomey General z'. Times News Papers Ltd., (1973) 1 All ER 815:(1974) AC273

B.R. Kapur zr. State of Tamil Nadu, (2001) 7 SCC 231

Balogh u. Crown Court at St. Albans, 1975 QB 73

Bandhua Mukti Morcha a. Union of India, AIR 1984 SC 803

Barada Kanta o. Registrar, Orissa High Court, AIF. 7974 SC 710

Bholanath zr. State of Uttar Pradesh. (1990) Supp SCC 151

Brahma Prakash Sharma u. State of Uttar Pradesh, AIR 1954 SC 10

C. Ravichandran Iyer ?,. Justice A.M. Bhattacharya. i995 (5) SCC 457

Chand Dhawan z. Jawaharlal Dhawan,1.993 Cr LJ 2930

Ct$etriya Samiti z'. State of Uttar Pradesh, (1991) I SCI 130

Chhetriya Pradushan u. State of Tamil Nadu, AIR 1991 SC 417

"Common Cause" a Registered Society u. Union of India, (1996) 6SCC775:AIR 1997 SCW 290

Common Cause o. Union of Indi a, (1996) 4 KC 33: AIR 7996 SCW 2279

Delhi Judicial Services Association z.r. State of Gujarat, (1991) 4 SCC 406

Denial Latifi a. Union of India, (2001) 4 LRI 36

Gaurav Jain o. Union of India, AIR 1990 SC 292

Hira Lal u. State of Uttar Pradesh, AIR 1954 SC 743

Indra Swaney, (1992) Supp 3 SCC 217

Johnson o. Grant, 1923 K. 789

K.C. Sarin u. C.B.I.,2001 (6) SCC 584

Kesavananda Bharati o. State of Kerala, 1973 Supp SCR 1

Kewal Chand Mimani u. S.K. Seru (2001) 6 SCC 512

M.C. Mehta a. Union of India, AlR1997 K7UM.S. Sharma u. Sri Krishna Sinha, AIR 1959 SC 395

Maharshi u. State of Uttar Pradesh, AIR 1990 All 52

Marbury o. Madison, 2 Led 60 (1803): 5 US 137

Mehta o. State of Tamil Nadu, AIR 1991 SC 417

Mohammed Ahmed Khan u. Shah Bano Begum.AIR 1985 SC 945

Morris u. The Crown Office,1970 (2) QB ll4O.P. Bhandari, 1986 (3) SCR 923

P.C. Sen (in re), A1R1972K.1821

P.V. Narsimha Rao o. State (CBI/SPE), AIR 1998 SC 2120

Parashuram Deteram Shamdasant u. King Emperor,1945 AC 264

155

209

207

245,252

208

249

15

247

16

251

r57

238

1.6

16

98

98

207

240

lb

El209

245

104

ZJJ

95, 103

L6

8

t5JO

t6239

z+J

157

251

10

249

The Citizen and ludicial Reforms

Perspective Publication u. State of Maharashtr4, AIR 1g7l K.221Presidential Reference (in reJ, AIR 1999 SC 1

R. u. Gray, (1900) 2 QB 36

Raj Deo Sharma u. State of Bihar, AIR 1998 SC 3281Rajasthan z'. Union of India, 1978 SCR 1 (80-81): gne) SCCS12Rugmani a. Achutha, AIR 1991 SC 983

S.P. Gupta zr. President of India, AIR t9B2 SC 149

S.P. Gupta a. Union of India, 1982 (2) SCR 365: AIR 19g2 SC 149

SCAOR zr. Union of India, AIR 1994 SC 268

State of Rajasthan u. Union of India, AIR 1977 $C 1361

Subhash u. State of Bihar, AIR 1991 SC 420

Supreih6 Court Advocates-on-Record Associatlon u. Union of India,AIR 1994 SC 268

T.C. Mathai zr. District Session Judge, (1999) 3 SCC 614Tehri Baandh z. State of Uttar pradesh, (1991) I UJSC 121Third Judges case, AIR 1999 SC 1

252,255

160

251,252

97

1.52,233

76

15

1.8,46,154,1,@

+o

11

1t 16

1.8,1.60,182

Vinay Chandra Mishra (jn re'), (1995\ 2 SCC fi4Vishal o. Union of India, (1990) 3 SCC 318Workers of Rohtas Industries Ltd. o. Rohtas Industries Ltd., AIR 1990 SC 491

102

15

767

207

l5

15

Part I

IrurnoDUCTroN

TUDICIARY IN INDIAN POLITYSubhash C. Kashyap*

Introihrction: Indian polity is under severe strain. Faith of the people in thequality, integrity and efficiency of govemmental institutions stands seriouslyeroded. They tum to the judiciary as the last bastion of hope. But, of late, evenhere things are getting increasingly disturbing and one is unfortunately no morein a position to say that all is well with the Jttdiciary.

Currently, various constitutional reforms are being talked about. There isconsiderable stress on suggestions directed towards bringing about probity inpublic life and in administratiory stability and accountabiiity of the executive,electoral and parliamentary reforms, better quality of legislation and conduct oflegislators etc. Unfortunately, there is tremendous reluctance to touch thejudiciary and consider reforming the system of judicial administration. On anobjective analysis, however the case for some far-reaching judicial reforms maybe found to be unassailable and at least deserving of as much importance andLrrgency as reforms in any other area.

There is every need to review the working of the judiciary during the lasthalf-a-century and more, to assess how far our justice delivery system has beenable to provide equal "Justice - social, economic arid political" to ail the peopieas ordained by the Preamble and the basic scheme of the Constitution. And, ifwe have faiied or there are shortcomings in the system, what can be done toremedy the situation.

This paper proposes to analyse the interrelationship of the differentorgans of the State and more particularly the position of the judiciary in Indian.polity. Questions pertaining to the independence and accountability of thdjudiciary, administration of justice, judicial delays, appointment and removal ofjudges, judicial review, contempt of court, hyper-activism of the judiciary, Public

* Hon. Professor Centre for Policy Research, was Member Nationai Commissionto Review the Working of the Constitution and Chairman of its Drafting andEditorial Committee, also former Secretary-General of Lok Sabha.

3

4 fhe Citizen and ludicial Reforms

Interest Litigation and high costs of judicial process have been raised andpossible remedies and reform options suggested. The focus throughout is on thecitizery on'We, the People' who gave to ourselves the Constifution.

Democtatic Polity anil the Constitution: In a democracy, sovereignty mustvest in the people and ideally the people should govern themselves. But, withthe growing complexities of governance and the size of the nation states, directdemocracy of the type of Greek city sthtes or the Indian village republics ofancient times, is nornore feasible. Aiso, except in a primordial or revolutionsitr.ration, sovereignty in the hands of the people is an abstraction. In order tobecome exercisable, this sovereignty has to be instifutionalised. The very firstand the most fundamental appiication of their sovereignty by the people is ingiving to themselves a Constitution.

The Constitution of India establishes the main organs of the State - the

, legislature, the executive and the judiciary - defines their powers, delimits theirjurisdictions, demarcates their responsibilities and regulates their relationshipswith each other and with the people. jUnlike the U.K., India has a writtenConstitution. The positions, powers and functions of each organ of the State,therefore, are only as ordained by the Constitution under its scheme of checksand balances. Each has to discharge its duties only within the domain assignedto it.

Ultimately, no institutiory however supreme, is above the people. Neitherof the three - executive, legislature and judiciary - can arrogate to itself a positionsuperior to the collective sovereign will of the people to which they are and mustat all times remain totally responsible and accountable for the discharge of theirduties. No power within or outside the dountry - not even the Supreme Court -can prevent the people of India from bringing about any desirable reforms if atany time, in exercise of their sovereign powers, they decide to do so. The onlyquestion will be of the mechanism for the expression of the popular will.

The High Courts and the Supreme Court set up by the Constitution asparts of an independent judiciary, form a single integrated judicial structurewith jurisdiction over all laws - Union, State, Civil, Criminal or constitutional.Unlike the U.S., we do not have separate iederal and State Court systems. Theentire judiciary is one hierarchy of courtF. It not only adjudicates disputes andacts as the custodian of individual rights and freedoms but may from time totime need to interpret the Constitution and review legislation to determine itsvites ais-a-ztis the Constitution. The word of the Supreme Court is the final law ofthe land binding on all lower courts unless its interpretation is reviewed orreversed by the supreme court itself or the 1aw or the Constifution is suitablyamended by Parliament. The Supreme Corrrt also functions as the arbiter of anydisputes in regard to jurisdiciion and distribution of powers befween the Unionand the States in the context of the federal structurl intur alh with powers oflegislation divided between the Union Par_liament and State Legislatuies.

In a parlramentary polity, executive also is a part of the legislature. Itcomes out of the legislafure, remains responsible to it and exercises powers ofgovernance only on its behalf. under the scheme of the constitution of India,

ludiciary in Indian Polity s

Parliament is not sovereign and the Supreme Court is not supreme except in itsown domain. The Parliament and the Judiciary come into contact with eachother in many ways. Their interface and inter-relationship, therefore, assumesgreater significance.

Parliament's Pozoer ois-a-ais Conrts: Parliament has the power to makelaws regulating the constitutiory organisation, jurisdiction and powers of thecourts. It was laid down in the Constitution that the number of judges otherthan the Chief Justice would not be more than seven. The Parliament was,however, empowered to prescribe a larger number of judges by law (article 124).Under this provision, it has been possible for Parliament to raise the number ofjudges to 25.

Parliament may by law:

i. extend the jurisdiction of a High Court to, or exclude the jurisdiction ofa High Court from, any Union tenitory;

ii. establish a common High Court for two or more States or for two ormore States and a Union territory and

iii. constitute a High Court for a Union territory or declare any Cowt in anysuch territory to be a High Court for all or any of the purposes of theConstitution (article 241).

Parliament may by law provide for the establishment of an administrativetribunal for the Union and a separate administrative tribunal for each State orfor two or more States. The law made under the provision may specify thejurisdiction and powers of the tribunals. Such law may exclude the jurisdictionof all courts, except the jurisdiction of the Supreme Court under article 136, withrespect of certain specified matters (articles 323A and 3238). Further, theConstifution empowers Parliament to create an all-krdia judicial service whichshall not include any post inferior to that of a district judge (articles 312(1) and(3)).

The validity of any proceedings in either House of Parliament cannot bequestioned before a court of law on the ground of any alleged irregularity ofprocedure (articles 722(7) and 212(l)). The presiding officer of each F{ouse orany other officer or Member of Parliament who is for the time being vested withthe powers to regulate procedure, or to enforce or carry out the decisions ofeither House of Parliament, is not subject to the jurisdiction of the courts inexercise of those powers (articles 122(2) and 105(3)).

No member of Parliament is liable to any proceedings in any court inrespect of anything said' or any vote given b1 him ih Farliament or anycommittee thereof. Also, publication of any report, paper, votes or proceedings ofPariiament by or under authority of a House of Parliament is protected againstany court proceedings (articies 105(2) and L9aQ).

luilicial Reoieu anil Due Process: In the British parliamentary system,Parliament is by tradition supposed to be supreme and sovereign. There are nolimitations on its powers, at least in theory. inasmuch as there is no written

6 The Citizen and ludicial Reforms

constitution and the Judiciary has no power of judicial review of legislation. In -

the U.S. system, the Supreme Court with its power of judicial review and ofinterpreting the Constitution has assumed supremacy; virfually no limits arerecognised on the scope of judicial review and judicial pronouncements on thelegality of legislation are final.

In India, the Constitution has atrived at a middle course and a

compromise between the British sovereignty of Parliament and Americanjudicial supremacy. We are govemed by the rule of law and judicial review ofadministrative action is an essential part of rule of law. Courts in India are alsoendowed with powers of judicial review of legislation. Incorporation of a

chapter on ftindamental rights in the Constitution of India makes judicialreview specially relevant. Article 12 guarantees fundamental rights against allState action. And, 'State' under this article has been defined to include theGovemment and Parliament of India and the Govemment and the Legislature ofeach of the States and all local or other authorities within the territory of India orunder the control of the Government. But, judicial review in India is conceivedby the founding fathers as limited. If an Act of Parliament is set aside by thejudiciary as ultra uires or violative of the Constifution, Parliament can re-enact itafter removing the defects for which it was set aside. Also, Parliament may,within the limits of its constituent powers, amend the Constitution in such a

manner that the law no longer remains ulrconstitutional. The U.S. Constitution(Constitutional Amendments) provides that a man may not be deprived of hisright to liberty and property except according to due process of law. The IndianConstitutiory however, lays down that a man may not be deprived of his rightsto liberty except according to the procedure established by law. The due processof law gives wide scope to the Supreme Court to grant protection to the rights ofits citizens. It can declare laws violative of these rights void not only onsubstantive grounds of being unlawful, but also on procedural grounds of beingunreasonable. Our Supreme Court, while determining the constitutionality of alaw, however is expected to examine only the substantive question, 1.e., whetherthe law is within the powers of the authority concerned or not. It is not expectedto go inio the question of its reasonableness, suitability or policy implications.

The Supreme Court pronounces its judgment on a specific case through aspecific petition. It does not give its opirxion or advice on a general reference.There should be an aggrieved person who petitions the court to challenge theconstitutionaiity of the statute which has qdversely affected his rights. He has toshow that he has sustained or is in immediate danger of sustaining some directinjury as a result of the enforcement of the statute, and thai the injurycomplained of is justiciable.

In the Constituent Assembly, there was considerable discussion on thedesirability or otherwise of incorporating 1n the Constitution the 'due process oflaw' clause. The founding fathers, after due deliberatiory decided againstadopting the American precedent and opted in favour of the formulation "inaccordance with procedure established by law." However, the Supreme Courtby its verdicts has practicaily brought the due process clause back into the

ludiciary in Indian Polity

Constitution. This goes against the basic scheme of the Constitution underwhich judiciary cannot make laws or amend the Constitution through anyinnovative or creative interpretation.

Anti-Defection Laza: The Constitution (52nd Amendment) Act, 19g5amended articles 101,102,190 and 191 of the Constitution regarding vacation ofseats and disqualification from membership of Parliament and the StateLegislatures and added a new schedule (10th Schedule) to the. Constitutionsetting out certain provisions as to disqualification of members on grounds ofdefection. The 10th schedule inter ali"a provided that all proceedings in relationto any question as to disqualification of a member of a House under theschedule would be deemed to be proceedings in Parliament within the meaningof article 1.22 or, as the case may be, proceedings in the legislature of a Statiwithin the meaning of article 722; and nofwithstanding anything in theConstitution, no court will have any jurisdiction in respect of any matterconnected with the disqualification of i member of a House.

The Anti-Defection Law, has been the subject matter of a controversy fromthe very beginning. It has been questioned on several grounds, oz. that it isviolative of the basic structure of the ConstitutiorL that it is beyond thecompetence of Parliament, and that it gives preference to expediency overprinciples. The paragraph which barred the iurisdiction of the courts was struckdown as being ultrn oires of thte Constitution by the l{igh Court of punjab andHaryana. When an appeal against this order was preferred, the Supreme Courtfound that there were legal infirmities in the passage of the Anti-Defection Lawinasmuch as the Constitution Amendment Bili had not been ratified by therequisite number of State Assemblies before being presented for the president,sassent. AIso, the Speaker's functions under the l0th Schedule called for ajudicial determination of issues under the law and process of determinine thequestion of disqualification could not be considered part of the proceedin"gs ofthe House and as such not amenable to iudicial review. The Suoreme Courtstruck down pata 7 of the Schedule barring the jurisdiction o? courts anddeclared that while operating under the Anti-Defection Law, the Speaker was inthe position of a tribunal and therefore his decisions like of all tiibunals weresubject to judicial review.

Two other areas in which the judiciary and the legislature have in recentyears come into close contact with each other have been the issue ofparliamentary privileges and the imposition of President's rule in the States.

Pa iamentary Priaileges: Article 105 of the Constitution provides for thepowers/ privileges etc. of the Houses of Parliament and of the members andcommittees thereof. The corresponding article for state Legislature is article 194.The more important of the privileges, namely, freedom of speech in parliamentand immuniiy of members from any proceedings in any court of law in respectof anything said or any vote given by them in Parliament, are specified in thisarticle. In other respects, powers and priviieges of each House, its Committeesand its members are, in effect, identical to the powers and privileges enjoyed bythe British House of Commons as on 26 January, 1950.


The basic law is that all citizens including members of Parliament shouldbe treated equally before the law. Member$ have the same rights and liberties as

ordinary citizens except when they perform their duties in Parliament. Theprivileges are available to the members only when and to the extent that they arefunctioning as representatives of the people in Parliament and discharging theirparliamentary responsibilities. The privileges do not, in any way, exempt themembers from their normal obligations to society which apply to them as muchand perhaps more closely in that capacity, as they apply to others. Also, thepurpose of granting to Members certain ptivileges is only to enable the latter toserve the people without any hindrance. Ideal1,v, these shouid never be allowedto degenerate into a conflict between the privileges of Members against therights of the citizens or against freedom of the press.

It has been held by the Supreme Court in the Searchlight case that thefreedom of speech conferred on member$ under article 105 is subject only tothose provisions of the Constitution which regulate the procedure of Parliamentand to the rules and standing orders of the House, but is free from anyrestrictions which may be imposed by any law made under article 19(2) uponthe freedom of speech of an ordinary citizen. Any investigation outsideParliament in respect of anything said or done by members in the discharge oftheir parliamentary duties would amourit to a serious interference with themembers' rights. Even though a speech dellvered by a member in the house mayamount to contempt of court, no action cart be taken against him in any court. Acourt being an outside authorify, does not have the power to investigate thematter.

The courts of law in India have recoghised that a House of Parliament or aState Legislature is the sole authority to jtrdge as to whether or not there hasbeen a breach of privilege in a particular case. It has also been held that thepower of the House to commit for contempt is identical with that of the House ofCommons and that a court of law would be incompetent to scrutinise theexercise of that power.

The immunity from external influence or interference, however, does notmean an unrestricted licence of speech within the walls of Parliament. It isimportant to remember that the privileges of the Houses and members andcommittees thereof are subject to other provisions of the Constitution beingconstrued harmoniously. Thus, for example, the privilege of freedom of speechin Parliament wiil be subject to rules of procedure framed by Houses ofParliament under article 118. Articie 121 forbids discussion in Parliament onthe conduct of jtrdgbs except on a motion for their removal (M.5. Shnrmav. SriKrishna Sinhn, AIR 1959 SC 395).

In 1965, the Supreme Court in its advisory opinion in Special ReferenceCase of 1964, (Keshaa Singh's case), observed as follows:

"lt would not be correct to read the mhjority decision in the Searchlight case tBlaying down a general proposition that whenezter there is a conflict between theproaisions of the latter part of article 194(3) and any of the proaisions of the

fundamental rights guaranteed by Part Ill, the latter must yield to the former.

ludiciary in Indian Polity 9

The majority decision, therefure, must be tnken to haae settled that article19(1)(a) ztould not apply, and article 21 would.

In dealing with the effect of the proaisions contained in ckruse (3) of nrticle794, wheneaer it appears that there is a conflict between the said prouisionsand the proaisians pertaining to fundamental rights, an attempt will haue to be

made to resolae the said conflict by the adoption of the rule of harmoniousconstruction."

The Allahabad High Court, in iheir judgment in Keshaa Slngh's case dated10 March, 1,965 (i.e. delivered after the advisory opinion of the Supreme Court),observed as follows:-

"i.

n.

In our opinion, both upon nuthority and upon a consideration of the releuantproztisions of the Constittttioil, it must be held that the Legislatiae Assemblyhas, by airtue of article 194(3), the satne pozler to commit for its contempt asthe House of Commons has.

In our opinion, the proaisions of article 22(2) of the Constitution cannot applyto n detention in pursuance of a conaiction and imposition of a sentence ofimprisonmrnt by competent authority.

Since we hazte already held that the Legislatiae Assembly has the power tocommit the petitioner for its contempt nnd since the Legislatiae Assembly has

framed rules for the procedure nnd conduct of its business under article 208(1),the commitment and dEriantion of the perconal liberty of the petitioner cannotbut be held to be according to the procedure laid down by law within themeaning of article 21 of the Conbtitution.

ia. Once we come to the conclusion that the Legislatiae Assembly has the powerand jurisdiction to commit for its contempt and to impose the sentence passedon the petitioner, Toe cannot go into the question of correctness, propriety orlegality of the commitment. This court cannot, in a petition under.article 226 ofthe Constitution, sit in appeal ooer the d.ecision of the Legislntiae Assemblycommitting the petitioner for its contempt. The Legislatizte Assembly is themaster of its own procedure and is the sole judge of the qttestion zahether itscontempt has been committed or not."

The Government, therefore; - decided that an amendment of theConstitution was not necessary. It was of the opinion that the Legislatures andthe Judiciary would develop their own conventions in the light of the opiniongiven by the Supreme Court and judgment pronounced by the Allahabad HighCourt. It may, therefore, be seen that the judgment of the Supreme Court in theSearchlight case is final till today insofar as matters of privitege are concerned.

Article 105(3) of the Constitution stipulates that, apart from the privilegesmentioned in the Constitution itself, Parliament may, from time to time, defineits privileges by law. No law, however, has so far been enacted by Parliament inplrrslrance of this provision to define the powers, privileges and immunities ofeach House and its members and the committees thereof. As far as theconstitutional stipulation "until defined by Parliament by law', and thequestion of defining or codifying the parliamentary privileges are concemed,

TII.

10 The Citizen and Judicinl Reforms

opinions are divided. It is, however, clear that the Constitution makers didenvisage codification of privileges by law and Parliament has been avoidingdoing so to avoid being subjected to judicial review and scrutiny. The Press andthe citizens would nahrrally like to have greater transparency and to know thatwhat precisely are the privileges. For this, earlier these are codified the betier.

The National Commission to Review the Working of the Constitution(NCRWC) has made the following observations and recommendations in regardto pa rliamentary privileges:-

"'Ihe prioileges of legislators should be defined and delimited for the free andindepmdmt functioning of Parliament and State Legislatures. lt should not be

necessary to run to the 1950 position in the House of Commons eoery time aquestion arises as to what kind of leg;4tl protection or immunity a Member has,rn relation to his or her work in the House."

"The law of immunity of members under the parliamentary priailege law was

tested in P.V. Narsimha Rao o. State (CBI/SPE), (AIR 1998 5C2120).Thesubstance of the charge was that certnin members of Parliament had conspiredto bribe certain other members to aote against a no-confidence motion inParliament, By a majority decision the cotrt arriaed at the conclusion thatwhile bribe-giaers, who were members of Parliament, could not claimimmunity under nrticle 105, the btibe-takers, also members of Parliament,could claim such immunity if they hnd actually spoken or uoted in the Housein the manner indicated by the bribe-giaers. It is obaious that thisinterpretation of the immunity of members of Parliament runs counter to allnotions of justice, fair play and good conduct expected ftom members ofParliament. Freedom of speech inside the House cannot be used by them tosolicit or to accept bribes, which is an offence under the criminal law of the

country. The decision of the court in the aforesaid cnse makes it necessary to

clarfu the true intent of the Constitution. To maintain the dignity, honour andrespect of Parliament and its members, it is essentinl to put it beyond doubt thatthe protection against legal action under article'l-05 does not extend to corruptacts.

A second bsue that was raised in this case concerned the authority competent to

sanction prosecution against a mentber in respect of nn oJfence inuolaingacceptance of a consideration for spenking or uoting in a particular manner or

for not aoting in either House of Parliament. A Member of Parlinment is notappointed by any authority. He is elected by his or her constituency or by the

State Assembly and takes his or har seat on taking onth prescribed by theConstitution. While functioning as a Member he or she is subject to thedisciplinary control of the presiding officer in respect of functions within theParliament or in its Committees. It would, therefore, stand to reason thatsnnction for proseaiion should be giaen by the Speaker or the Chairman, as

the case may be.

The Commission recommends thnt nrticle L05(2) may be amended to claifythat the immunity enjoyed by Members of Parliament under parliamentaryprioileges does not coaer corrupt acts committed by them in connectian with

f.Ldiciary in Indian Polity

their duties in the House or othenuise. Corrupt ncts would include acceptingmoney or any other ztaluable consideration to speak and/or aote in a pnrticularmanner. For such acts they would be liable for action under the ordinary law ofthe land. It may be further proaided that no court wiII take cognisance of anyffince arising out of a Member's action in the House without prior sanction ofthe Speaker or the Chairman, as the case may be. Artide 194{D may also iesimilarly amended in relation to the Members of the State kgislatures.,,

Imposition of President's Rzle: Under article 356. if the president issatisfied that Govemment of a State cannot be carried on in accordance with theConstitution, he may issue a Proclamation taking over any of the functions andpowers of the State Govemment. The powers of the State Legislatures may underthe Proclamation become exercisable by or on the authority of parliament. TheState Assembly may be dissolved or kept under suspended animation. ThePresident may take all other steps that may be necessary including suspensionof the operation of any constifutional provision relating to anybody or authorityin the State except the High Courts. Every Proclamation must cease to operate atthe expiry of two months unless approved by resoiution of the two Houses.After Parliament's approval also, a Proclamation may continue for not morethan six months at a time and not for more than a total of three vears. But.extension beyond one year is not possible even by a resolution of th" tuuoHouses of Parliament except during the operation of a Proclamation ofEmergency and when elections to the Assembly cannot be held (article 356(5)).

Article 356 has been one of the most criticised and controversialprovisions of the Constitution. Under this provision, State Govemments havebeen taken over on rnore than 100 occasions during the last 52 years l.e. on anaverage involving more than two States each year. Opposition members andcritics have said that the article has been misused, more often than not, forpolitical and partisan purposes by the party in power at the Union levefusually to dismiss State Governments of parties in oppositioni !n theConstituent Assembly, while replying to the critics of this prpvi3ion, Dr.Ambedkar had expressed the hope that it might remain a dead letter and mightnever be used except as a last resort, after everything else failed. In State ofRajnsthan v. Union of India (AIR 7977 SC 1361) the Supreme Court held that aProclamation under 356 depended on the subjective satisfaction of the Presidentand the Court could not substitute its own satisfaction for ihat of the Presidentnor could it, in view of article 74(2), enquire into the advice given to thePresident by the Council of Ministers. The court, however, significantly addedthat if the satisfaction of the President was mala fide, based on extraneous orirrelevant considerations or no satisfaction at all it could interfere. Thus,exercise of President's power under article 3!6 was brought under iudicialreview to that extent.

In the Bommai case, the Supreme Court stressed the desirability of thequestion of the majority support of the govemment being settted on the floor ofthe House. This had also been emphasised by the Sarkaria Commission. Aninteresting case in this matter to go before the courts was that of the ,,fresh,,

11

1.2 The Citizen and ludicial Reforms

proclamation of 17 October, 1996 "reimposing" President's rule over U.P. TheDivision Bench of the Allahabad High Court in their judgment of 19 December,1996 even after taking note of the fact that proclamation had been approved bythe two Houses of the Parliament quashed it as ultra ulres the Constitution.

Much before the judgment came, thre present writer had written that sinceone year of President's rule was cdmpleted on 17 October, 1.996, nop{otlamation of emergency was in operafion and elections had just been held, itwhs constitutionally impermissible to extend President's rule further withoutamending the Constitution for the purpose. What even Parliament was barredfrom doing, couid certalnly not be done by the Government by giving it a

different name of "reimposition" or of "fresh" promulgation of President's ruleunder article 356. The court upheld this position.

As Justice Lal put it, whatever the subterfuge of a so-called new situationhaving arisen to justify reimposition of President's rule, the fact was thatPresident's rule was being continued illegaliy and "thus what cannot be doneeven by the Parliament (continuance beyond one year) has in effect been done byHis Excellency Hon'ble the President of India in the form of a freshProclamation. For no fraction of time there was a break. The State of UttarPradesh continues to be under President's rule with effect from 18.10.1995 tilldate without any break. hr substance and effect, it is continuation of earlierProclamation... Impugned Proclamation was not capable of being considered bythe Parliament because even the Parliament could not have passed a resolutionin the absence of two conditions enumerated in clause (5) of article 356.... inform there may be two separate Proclamations but in substance it wascontinuation of the President's rule bevorrd one vear which is expresslv barredand prohibited under clause (5) of arHie 356 itseif."

Secondly, the present writer had expressed the view that since theConstihrtion provides that there "shall" be a Council of Ministers, under articles163 and 164, it was the Governor's constitutional obligation to constitute apopular Government after the completion of the electoral process and theGovernment so appointed would have been responsible to the Assembly andnot to the Governor. If the Govemor found it difficult to decide on whom to callto form the Govemment, he could take regourse to article 175 (2), send a messageto the House to elect its ieader who could then be appointed as the ChiefMinister. This was also the very categorical pronouncement of their Lordshipsof the Allahabad High Court.

Justice Lal said that the term 'Government' used in article 356 (1\ " rcfers"to elected govemment and, not the President's rule". Clause (1) of Article 163uses the word 'shall'. "The word 'shalf indicates mandatory sense. Therefore, itis not the discretion of the Govemor to appoint or not to appoint a ChiefMinister. Constitutionally he is bound to appoint a Chief Minister. Here hisdiscretion is limited to choose the Chief Minister if no party has clear majority.But it is not open for the Govemor to say that he will not appoint a ChiefMinister... political justice can only be extended at this juncture to the electoratethrough their representatives by adhering to the provisions of articles 174 & 175

ludiciary in lndian Polity t3

of the Constitution". His lordship bemoaned how the great patriotic people ofUttar Pradesh had been "unconstitutionally deprived of their right of forming a

democratic Govemment." He saw no reason why the Govemor could not invokearticles 174 & 175 and ask the members of the Legislative Assembly to indicatethe name of the leader in whom they had confidence so that the same personcould be appointed Chief Minister.

Justice Kumar also forcefully asserted the view that there was nothingwrong in the Govemor asking the elected members to choose on the floor of theHouse a person to lead them as the Chief Minister. In fact, he said this would bemost democratic and constitutional.

The third judge on the Bench, Justice Ka$u observed that "it is settled lawthat a constitutional authority cannot do indirectly what it is not permitted to dodirectly". His Lordship went a step further when he held that in the prevailingsituation in U.P., the Legislative Assembly not only could meet but also had tomeet to decide in whom it had confidence. He added: "the Governor did have anoption, that is, to summon the House under article 174 and to send a message toit under article 175(2) informing the House that he was unable to find someonewho in his opinion, was likeiy to have the confidence of the House, andtherefore the House itself should inform him about the person in whom it hasconfidence. On receiving information from the House, he should haveappointed such a person."

These developments are being recounted for their possible relevance towhat happened in U.P. recently when after the last general elections to the U.P.Assembly, Governor Shastri, instead of appointing a Chief Minister,recommended President's rule which remained in operation until bargainingbetween parties culminated in a BJP - BSP coalition arrangement.

In this connectiory the Nationai Commission to Review the Working of the

Constitution has made the following significant recommendation:

"ln the considered ztiew of the Commission, it should be possible without anyconstittrtional amntdment to prouide for the election of the kader of the House(Lok Sabha/State Assembly) along with the election of the Speaker and in likemanner under the rules of Procedure. The person so elected may be appointedthe Prime Minister /Chief Mitrister."

So far as article 356 is concerned, there is another matter in which enoughattention does not seem to have been paid either by the Govemment or by the

Judiciary and that concerns its reading with other relevant articles of theConstitution. As stated by the present writer elsewhere (Our Constitution, S'd Ed.2001,p.278):

"It is importani that.article 356 is read with articles 355,256,257,353 and

365. This is usually not done. Insofar as nrticle 355 speak of the duty of the

Union to ensure that goaernment of eoery state is carried on in accordance utiththe prouisions of the Constitution, it is obaious that article 356 is not the onlyone to take care of n situation of failure of constitutional machinery. The Unioncan also act under article 355 i.e. without imposing President's rule in matter

t4 The Citizen and ludicial Reforms

of 'external aggression' or 'internal disturbance' . Article 355 can stand on itsown. Also, Union Goaernment cnn islue certain directions under articles 255.257 and 353.

It is true that article 356 clearly authorises the President to issue aproclamation imposing President's r*le ooer a State if he is satisfted that asituation has arisen in which the Goaernment of the State cannot be canied onin accordance with the proaisions of this Constitution but a question may beasked when can the President Inu:fully hold that such a situation has actuallyarisen. A uery specific and categorical answu is contained in article J6S whenit says that where a State fails to comply with Union directions (under nrticles256, 257 ard others) "it shall be Inwful for the president to hold thnt asituation has arisen in which the Goaernment of the State cannot be carried onin accordance with the proaisions of this Constitution" . h is unfortunate thatbefore rushing to issue a proclamation under article 356, no ffirt appeared tohaae been made to ensure that (i) the Union had done nll that it could indischarge of its dLlty under article 355 and (ii) that the State had ,,failed

tocomply with, or gioe efect to" those directions. It seems in many cases recourseto 356 has been taken without keeping other prouisions in uiew."

The National Commission to Review the Working of the Constitution fullyendores this position and in fact substantially reproduces the above formulationonly (para 8.15.2).

Independence of the luiliciary: Among the noble aims and objectives of theConstitution, the Preamble accords the higfrest place to Justice. All the organs ofthe State are enjoined to secure to ail citiiens "Justice - sociai, economic andpolitical". In a representative democracy, adminislration of justice assumesspecial significance in view of the rights of individuals which need protectionagainst executive or iegislative interference. This protection is given by makingthe judiciary independent of the other trwo organs of the government andsupreme in its own sphere. The Constifution attaches great value to theindependence of the judiciary which is essential to rule of law andconstitutionalism and for the effective functioning of judicial administration. Anindependent judiciary is also an essential requisite of a federal polity, whereinthere is a constitutional division of powers between the federal government and

ernments of the constituent units and a functional division of powerseen the executive, legislature and judiciary. Also, an independent and

judiciary is an essential requisite for ensuring human rights androtectint democracy. Only an independent judiciary can act effectively as theuardian of the rights of the individual and that of the Constitution. There are

y devices in the Indian Constitution which ensure the independence of thefor example, the constitutional provisions in.regard to the appointmentnoval of iudges, securitv of tenure, salaries and service conditions_removal of judges, security of , salaries and service conditions,and allowances of judges being a charge on the Consolidated Fund,

uitment and appointment of their own staff by the Supreme Court, debarringjudges of the Supreme Court from practising before any Court in India after

t, the power to punish for contenirpt etc. But, even judiciary has to actits constitutionally ordained domain and within the limits of its

ludiciary in lndian Polity 15

jurisdiction' Judges also are not above the law. Rule of law and laws of the landapply to them as to any other citizen. If anything they have addedresponsibilities because of the position they occupy and they are also fullyaccountabie to the people for what they do or do not do.

ludicial Actioism and P.I.L,: \4/hat came to be called ,,Judiciat Activism,,was bom as a corrective to inaction or failure of the executive and the leeislatureto provide clean, competent and citizen-friendly governance. In the historicjudgment in the Judges' Transfer case, the seven-judge Consdfution Bench of thesupreme Court held that any member of the public even if not directly involvedbut having "sufficient interest" can approach the High Court under article 226,or in case of breach of fundamental rights the supreme court, for redressal of thegrievances of the persons who cannot move the court because of ,,poverty,helplessness or disability or socially or economically disadvai.rtaged position,.The court can be approached even through a letter in such a case (S.p Gupta v.President of lndia, AIR 1982 SC 149). After this judgment, it has been open topublic-minded individual citizens or social organizations to seek judicial reliefin the interest of the general public.

In Bandhun Mukti Morchn v. Union of Indin, AIR 1984 SC 803, anorganisation dedicated to the cause of release of bonded labourers informed theSupreme Court through a letter that they conducted a survey of the stonequarries situated in Faridabad District of Haryana and found that there were alarge number of labourers working in such quarries under ,,inhuman andintolerable conditions" and many of them were bonded labourers. Thepetitioners entreated that a writ be issued for proper implementaiion of thevarious provisions of the Constitution and Statutes with a view to ending themisery, suffering and helplessness of those labourers. The court treated the letteras a writ petition and appointed a Commission consisting of two advocates tovisit these stone quarries, make an enquiry and report to the court on the matter.

ln htkshmi Knnt Pandey a. Union of India, a writ petition was filed on thebasis of a letter complaining malpractices indulged in by social organisationsand voluntary agencies engaged in the work of offering Indian children toforeign parents. It was alleged that in the guise of adoptiory children of tenderage were not only being exposed to a long dreadful joumey to distant countriesat great risk to their lives but also to uncertainty as to their shelter and future.Chief Justice P.N. Bhagwati laid down certain principles and norms to ensurethe welfare of the children and directed the Government and various agenciesdealing with the matter to follow them (1987) ISCC 667.

In recent years, the Supreme Court has issued directions to controlpollutiory to check the evil of child prostitutiory to revive a sick company toprotect the livelihood of 10,000 employees, to look into the danger to safety inbuilding a dam, to segregate the children of prostitutes from their motheri, toprovide insurance to workers in match factories, to protect the Tai Mahal fromenvironmenral pollution etc. (Subhash v. State of Bihai, AIR 1991 SC 420; V ishal v.Union of lndia, (1990) 3 SCC 318; Workers of Rohtas lndustries Ltd. v. RohtagIndustries Ltd., AIR 1990 SC 491;TehriBaandiv. State of Llttar pradesh, (1991) 1-


UJSC 121; Gaurnrslainv.lfnionof lndia,,A.IR1990 5C292;Mehtav.Stateof Tamil

Nndn, AIR 1991 SC 417; M.C. Mehta v. IJnion of lndia, AIR 1997 SC 734)'

However, it has been held that non-jtrsticiable political matters cannot be

brought before the court under the guise of public interest lltigation (Maharshi v.

State of Llttar Pradesh, AIR 1990 All 52). I;ocus standi to file a petition depends onthe facts as they exist. Even a journalist may file a writ petition if the case falls inthe category of public interest litigation. On the other hand, if personal interestlitigation is sought to be fought as public interest litigation, person institutingsuch litigation may be made to pay the costs. The court should not allow an

unscrupulous person to vindicate his personal grudge in the gatb of publicinterest. (Rugmani v. Achutha, AIR 1991 SC 983; Bholanath v. State of Uttar Pradesh,

(1990) Supp SCC 151; Subhash v. State of Bihar, AIR 1991 SC 420; Chhetriya

Pradushan v. State of Tamil Nadu, AIR 1991 SC 4I7; Chhetriya Samiti v. State ofUttar Pradesh, (1991) I SCI 130).

Thus, the irrnovative judicial aPproach to "Public Interest LitiSation" came

handy in case of acute social injustice, economic exploitation, denial of humanrights, corruption and other offences against public interest. Even hyper-activism of judiciary was justified under the powers of judicial review. It drewits strength, relevance and legitimacy from the support it elicited from the peoplebecause of their total disenchantment with the other organs of the State run bythe politicians and the bureaucrats. But, the scenario has since changed. Peopleare beginning to lose faith in the Judicialy as well. Judiciary also can no more besaid to be entirely free from maladies of corruptiory inefficiency and misuse ofauthority that afflict other organs of the $tate. Recently, the Chief justice of Indiahimself publicly stated that upto 20 per cent of the judges in the country werecorrupt and brought the entire judiciary into disrepute.

It has come to be believed widely that in the name of public interest,judiciary has begun to invade the exclusive legislative and executive domains,to exceed its legitimate jurisdictional limits and arrogate to itself more Powersthan what the founding fathers gave. Questions are sometimes raised about thepractical viability, feasibility and implerlrentability of some of the court verdicts.Fears are expressed of the courts befurg misused for vested political groupinterests and of the courts giving in to populism , ctaze for publicity andhogging headlines, overstepping the lirnits of judicial discretiory not exercisingthe essential judicial restraint and causing judicial excesses.

Reading into the Constitution whht is non est and in effect legislating oreven making the Constitution e.g. in thE matter of the appointment of judges,misinterpreting parliamentary privileges and immunities in the JMM briberycase and allowing protection to MPs taklng bribe of crores for casfing their vote,holding even truth not to be a defence in contempt of court cases, laying downpublic policy or issuing executive ordels to public bodies and State authoritiesin different areas. ln any case, judicial activism cannot be a solution of ourproblems. At best it can act as a te lporary measure ormedication inasmuch as the Judiciary cannot take over thethe executive or the legislature.

as an emerSencyfunctions of either

Judiciary in Indian Polity L7

The judiciary would do well to. remember that in the ultimate analysisorders of the couits have also to be given effect to only by the administralionwhich functions under the political executive. fudiciaryhas to be very cautiousand must ensure that a situation is not reached where its orders or directives areno more ftrlly respected or obeyed or are found to be just unimplementable. Thecourts must also see that in the name of public interest litigatiory false, frivolous,fraudulent or private interest motivated issues are not entertained.

Contewpt of Cozrf; A sensitive and controversial issue is that of the powerof the courts to punish for their contempt. Articles I29 and 215 ;f fteConstitution provide for the supreme Court and the High Courts being courts ofrecord and having all the powers of such courts including the power to punishfor their own contempt. The Contempt of Courts Act, I97I has codified ihe la*in the matter. Contempt may be defined to mean wilful disobedience of the court,in any manner lowering the authority of the court or interfering with orobstructing the administration of justice. It does not inhibit genuine and weil-intentioned criticism of courts or their functioning. Also, fair and reasonablecriticism of a judicial act in the interest of public good cannot constitutecontempt.

However, the law as it has emerged from judicial decisions does not alloweven truth to be a valid defence against charge of contempi of court. Also, thecourts have sought to make a distinction between criticism made by a formerjudge and law minister which may be permissible and criticism by othercitizens which must be "checked". This is anti-democratic and violativb of thefreedom of expressiory right to equality and non-discrimination clauses. It isnecessary that the contempt law and more particularly the exercise of powersunder it are reviewed objectively and in an ordinary-citizen-fiiendlypercpective.

The Constitution Commission (NCRWC) has suggested that it may be laiddown by constitutional amendment that "it shall open to the court onsatisfaction of the bona fdes of the plea and of the requirements of public interestto permit a defence of justification by truth." The Commission has alsosuggested that no court other than the Supreme Court and the High Courtsshould be allowed to exercise any power to punish for contempt of itself.

Appoifltffient of judges: Arbilrary power in any hands is bad. Some checksand balances are therefore embedded in the scheme and text of the Constitution.As stated earlier, there are serious limitations on the legislative powers ofParliament as well as on the Supreme Court's power of judiciil review.Unchecked by the other, either of them may go wrong. After alf the judges comefrom the same social milieu as ministers and legislators. They too are human,all-too-human. Also, it needs to be remembered that the Constitution is what itis. It is not what the Parliament or the Supreme Court may say from time to timeit is or what either of them may wish it to be. parliament, within certainparameters, has the power to amend the Constifution. But, as the Supreme Courthas held, the amending power under article 368 is essentially a limited poweronly to amend and carurot extend to abrogating or annulling tire Constituiion or


to violating its basic structure or featurres. Similarly, whenever it becomes

necessary to adjudicate in any dispute before it or when its advice is soughtunder Article 143 of the Constitution, the Supreme Court has the power tointerpret the Constitution. But, the power to interpret also has naturallimitations. It is power only to interpret. It cannot extend to changing oramending the Constitution. In the garb of interpreting the provisions of theConstitution, it cannot rewrite the Constitution. The effort would appear to bemore glaring if it concerns the court itself or matters like the appointment ofjudges themselves.

Under article 124(2), the Supreme Court judges were to be appointed by thePresident "after consultation with such of the judges of the Supreme Court andof the High Courts as the President ma)4 deem necessary." The proviso to thearticle said that "in the case of appointment of a judge other than the ChiefJustice, the Chief Justice of India shall always be consulted." The only obligationfor the Govemment was to consult the Chief Justice and other judges.

Significantly, the appointment was not required to be made "in consultation"but only "after consultation". In actual practice, after receiving the opinion ofthe Chief Justice, the Cabinet deliberated on the matter and advised thePresident in regard to persons to be appointed. The President acted on theadvice. In case of the Chief Justice, the senior-most judge was usually appointed.The convention, however, was ignored when in the '70s, a couple of ChiefJustices were appointed superseding their more senior colleagues. In the S.P.

Cuptav. Union of India case, (1982) the court held that the consultation must beeffective and involve exchange of views and examination of merits but it did notmean concurrence and ultimately the executive had the last word in the matter.

It is known that when the executive enjoyed a decislve voice in the matterof appointment of judges, the system worked most satisfactorily for severaldecades. However, later some appointments were made on considerations otherthan merit and seniority. Political, partisan and other extraneous factors weresaid to have determined some selections. The question was considered by anine-judge Bench in Supreme Court Aduecates-on-Record Associntion v. Unian ofIndk, (1993). Gupta's case was overruled. Mr. justice Verma, delivering themajority judgment, stressed the constitutional purpose of selecting the bestavailable persons as judges. The result of the landmark judgment was that thewings of the political executive were clipped and its powers curbed. Theappointments had still to be made by the President on the advice of the Councilof Ministers. But the Chief Justice, in consultation with other senior judges wassupposed to be in the best position to decide upon the best persons to don theBench. \ /hile the executive could exercise the necessary check before forwardingthe advice to the President, it was not elpected to substitute its own judgmentfor that of the CJ in regard to the suitability of those to be appointed. Thus, theSupreme Court practically took over the power of appointment of judges in itsown hands, nohvithstanding the clear words in article 124(2) of theConstitution. As a safeguard, it mandated the Chief Justice associating two ofhis senior-most colleagues in the selection process. The procedure forappointment was revised in the light of this judgment in 1994 to the effect that


the decisive view in the matter of the appointment of judges shall be that of theChief Justice of India and in case of a vicancy in the oific;f the Chief Justice ofIndia, the.senior-most judge shall be appoinied unless the retiring Chilf Justicereported that he was unfit.

. P"t then, the pendulum of misuse of discretionary powers could swing tothe other extreme. The Chief Justice could recommend naires without consulinghis senior brother judges. when there was intense lobbying on who *e.e thEmost deserving to be appointed and certain names were suggested whichseemed to violate the norms set by the supreme court itself in regard to seniorityand merit of the recommendees and the need to consult senior brother judges,the executive,had to step in again. Instead of clearing the names of pers'onsrecommended for appointment, the President (as advised by the council ofMinisters) made a reference to the supreme Court under artiile 143 to seek itsopinion. The reference did not question the Verma judgment. The nine-judgeadvisory opinion of 28 october, 1998 only reaffirmed the basic guidelines givJnthere. some clarifications and safeguards were provided. The Chief Justice hadto consult four senior most judges of the supreme court and if two of the fourdisagreed on some name, it could not be recommended. kr effect, decisions wereto be taken by consensus whereunder the chief Justice and at least three of theother four must agree.

In the meantime, one Chief Justice retired and another .took over. Freshrecommendations were made and accepted. While clearing the latestrecommendations for the appointment of four judges, the piesident wasreported to have suggested giving "due consideration,, to ,,persons belonging tothe weaker sections of society like the SCs and STs,, and ,,*o-e.,,,. Hereportedly added that "eligible persons from the SC/ST categories areavailable." This unleashed a media furore. All sorts of hidden meanings weresought to be given to the President's remarks. A serious conflict oi viewsbetween the Council of Ministers and the President or between the Chief Justiceand the President was talked about and some went so far as to allege that thePresident was insisting on a quota 9r reservation for the SCs/STs in theappointment of judges and for that reason appointments were being delayed.

It would be seen that the President was saying nothing contrary to theConstitution or the Supreme Court's own judgments. In fact, it was also inconsonance with the actual practice generally followed in the process ofappointments to the High Courts and the apex court. In the 1993 Judgment, Mr.Justice Verma himself categoricaliy spoke of the need for giving representationto "aII sections of the people and ftom all parts of the country" in keeping with thenorms of seniority and merit. The President echoed the same principles..when hesaid at a seminar that "it is a matter of importance that all themajoi regioru andsections of society are represented" in the judiciary ,,consistent with therequirements of merit. "

The fact is that so far neither the Executive nor the iudiciarv have come outof the controversies entireiy above reproach and free from blemish ofindiscretion and worse. whether the final say was left with the Executive orwith the Judiciary, neither has succeeded fully.

20 The Citizen and Judicial Reforms

So far as appointrnent of judges to the Supreme Court and the High Courts

are concerned, the present arrangement iS definitely not satisfactoly. There are

many who argue - and not entirely withoirt justification - that the selection and

appointment of judges should have continued to remain an executive act

without any involvement of the Chief Jusfice or other judges beyond the right tobe consulted.

Controversies in matters connectedl with the appointment of judges are

fraught with grave consequences for the health of a polity that prides itself inbeing founded on constitutionalism, the mle of law and the independence of the

judiciary. Also, insiitutions like the Presidency and the Supreme Court and highfunctionaries such as the President and the Chief Justice of the Supreme Courtideally should always remain above conflictual and confrontational discoursesand disputes. That independence of the jrtrdiciary and people's faith therein are

not allowed to be eroded in any way is as much the responsibility of thePresident and the Council of Ministers als of the Chief Justice of the SupremeCourt and other judges. Also, it is in the self-interest of both the executive andthe judiciary to zealously guard and preserve the estabiished norms.

To resolve problems in the area of appointment of judges, some personsincluding the present writer, have been suggesting for several years the device ofa National Judicial Commission. But, its success and credibility wouldinevitably depend upon its composition and upon the judiciary giving up theunbecoming scramble for primacy and supremacy in the matter of selection andappointment of judges.

In the matter of appointment of judges, it should be possible to draw thebest from the Bar to the Bench. If necegsary, it may be made obligatory onmembers of the Bar not to refuse a judicial appointment. Before taking office, allappointees to judicial office need to be provided with intensive training andorientation for the job. Also, later in their career, periodic orientation andintensive training camps and refreshel courses would be most desirable.Incidentally, the lawyers also need periodic professional reorientation, trainingand refresher programmes.

The Constitution Commission (NCRWC) Report submitted to theGovernment on 31 March this year has a chapter on judiciary. As a Noteappended to the Report by the present wdter in his capacity as a Member of theCommission and as Chairman of its Drafting and Editorial Comrnittee states:

"This chapter particularly is seriously flawed and distorted. The much needed

ludicial Reform issues haoe not been eaen touched or these got deleted in the

final draft. ln matters like appointrnent of judges, the approach in the finalchapter is henaily and unconstitulionally weighed in faaour of the judgesthemselztes selecting their own colleagues thereby striking at the legitimatepowers of the Executiue and the Parl:iament and dbturbing the delicate balance

in the polity."

The Report of the Drafting and Editorial Committee which wasunanimous in all matters, inter alin, contai,rred the following useful observations:

Ittdiciary in Indian Polity Z:l

"The Commission took into account the consultation paper, the responsestheleto and the oiats of eminent persons like the former president of lndia andsome of the former Chief Justices of India including the one who diliaered themajority judgment in the second judges case. When the matter came to bediscusscd before the commission, diaergent ztiews were adaanced nnd cited.According to one former C.ll. (lustice E.S. Venkntaramaiah), in theinterpretation placed by the majority of judges on article 124, the "text of theConstitution seems to haoe been departed from. ........ The interpretation nowgitten neutralises the position of the president and mnkes article 74 whichrequires the President to act on the aid and adaice of the Council of Ministersirreleztant. . . . . . .. The construction now placed by thb court makes the SupremeCourt and the High Courts totnlly undemocratic. While in a parliamintarydemocracy the President may be a mere constitutional head when the power isexercised by him on the adaice of the Council of Ministers he cannot be asked toplay the same limited role where the Chief lustice of India who is not an electedrepresentatiue adztises him. One cannot ignore that this may lend on a futureoccasion to tyranny in another unexpected place... The new meaning given bythe Supreme Court appears to be beyond the scope of mere interpretation an'dairtually amounts to re-writing the releannt constitutionnl proztisions. . . . . .', .*" Obaiously there has been some rethinking on the subject. A former C.l.l.(lustice ].5. Vermn) seemed to haae reaised his opinion and faaoured "areaiew" in the light of the experience after the aerdict in ifte Second Judges,case inasmuch he came to adaocate that the intent of the Constitution was not toac,cord "primacy to either" the judiciary or the executioe, the ,,responsibility,,

of both was " to find the most suitable person for appointment" and this couldbest be done by a "National ludicial Commission, representing aII wings,headed by the Vice President/ Prime Ministei Chief lustice $ India' ."""The ludicinry, the Legislature and the Executiae are the teatures of theConstitution and it is the Constitution, uthich is supreme. The Constitution iswhat it says and there should not be any attempt to alter it b! an interpretatizteprocess by any of the limbs of the stnte. power to interpret or declare the lawdoes not include any power to change or make the law. It is a fortiori when aquestion arises as to in which of the limbs, the Constitutian has oested thepower of appointmant. When it inoolaes questions as to whether thz power is inthe Judiciary or Legislature or Executiae, the Supreme Court's approach has tobe in the following manner as obseroed by the Supreme Court ln Re SpecialReference 1 ol 1,964 t1965(1) SCR 413 at 4461 "... Legislators, Miiistersand Judges aII take oath of allegiance to the Constitution for it is by thereleoant proaisians of the Constitution that they deriae their authorifu andjurisdiction and it is to the proaisions of the Constitution that they owe

E.S. Venkataramaih, The Working of Indian Democratic polity - An Appraisal, Dr.Zakir Hussain Educational & cultural Foundation and Indian Institute of publicAdministration, New Delhi.

J.S. Verma, The Judiciary and Judicial Reform s in political Reforms: Asserting CioicSoaereignty, Konark, New Delhi 2001. pp.i45-180.


allegiance.........". AIso, it was noted that thete is no country whose

constitution proaides for ztesting the power of aryointment of judges ofntperior courts in the judiciary itself. In this context, there was a general

consensus in the Commission on tlv desirability of suggesting the mechanism

of the Natianal Judicinl Commission to msure that the power of aryointuent ofjudges was not exercised arbitrarily either by the executizte or the iudicinry."

Attention is also invited to the decision taken by the Commission at its14th Meeting held on 14-18 December,2001. Para 16 of the minutes recordsthat-

"There shall be a National ludicial Commission for making recommendation

as to the appointment of a ludge of the Supreme Court (other than the Chief

Justice of lndiil, a Chief lustice of a High Court nnd n ludge of any HighCourt."

"The composition of the National ludicinl C.ommission would be as under:

(a) The Vice-President of Indin

(b) The Chief lustice of lndin

(c) Two senior-most ludges of the Suprane Conrt, next to the Chief lustice(d) The Unian Minister for l-aw I lustice.""The National ludicial Commission shall meet as a round table. While meeting

for making recommendation as to the appointment of a ludge of a High Court,the Chief lustice of the concern d HiCh Court shnll also be associated as aMember of the Commission."

" Proposals for appointment of ludgu should originate either ftom the Chief

lustice of lndin or the Chief lustice of a High Court, as the case may be."

"The retirement age of High Court and Supreme Court ludges should be

uniform and it can be 65 years."

"The retired judges should not be nppointed to any paid appointment underthe Goaernment. Howmer, eom for post-retiremmt non-paid assignments, it isrecommended thnt, to eliminate roorn for irreleuant considerations, it would be

approprinte to proaide ns n matter of law that where a retired ludge is sought tobe appointed to n Tribunal/Commission or similar other body, suchappointment should be made in consultation with the concerned Chief lustice.ln the case of appointment of a retired ludge/Chief lustice of the SupremeCourt, the Chief lustice of India will be consulted and in the case ofappointment of a judge/Chi{ Iustice of the High Court, the Chief lustice ofthat Court should be mnsulted. $uch a course would help in eliminatingirreleuant considerations and utould also facilitnte appointment of approprintepersons to these bodies."

"As regards the transfer of ludges, it should be as a matter of policy and thepower under article 222 and its exercise in approprinte cases should remainuntouched. The President would trnnsfer a Judge from one High Court to anyother High Court after consultation with a committee comprising the Chieflustice of Indin and the hao senior-rtuost ]udges of the Supreme Court."

ludicinry in Indian Polity 23

_ Many of these recommendations unanimously agreed by the Commissionafter due deliberation and incorporated in the again unanimous report of theDrafting and Editorial committee were at the rastitage someho* re.riewed andeither diluted or dropped e.g. in the matter of pos-t-retirement paid jobs forjudges, age of retirement for the H.C. and s.c. Judges and the composition of theNa tional J ud icial Commission

Remooal of ludges; Every judge of the supreme Court hords office until theage of 65 years. A judge may be removed from his office only by an order of thePresident passed after an address by each House of parliarneni for his removal"on the ground of misbehaviour or incapacity,, supported by a majority of thetotal membership of that House and by a majority of not less-than two-tirirds ofthe members present and voting is presented to him in the same session. Theprocedure may be regulated by parliament by law (article r24). ln the case ofJustice Ramaswamy, motion for presenting an address to the president for hisremoval had failed to get the required majority in Lok Sabha.

Contrary to the common belief, there is no proaision in our Constitution for theimpeachment of n judge. The impeachment is proaided for the president and none else.Also, there is a fundamental difference between removal procedure andimpeachment procedure and between the impact of the adoptionof a motion forimpeachment and the passing of a motion for presenting an address to thePresident seeking orders for the removal of a judge. The grounds for theimpeachment of the President have to concern 'violition of tI-re Constitution,while an address for removal of a judge has to be on the ground of"misbehaviour or incapacity". In case of impeachment, the moment lhe motionis passed by the two Houses, the President forthwith ceases to be the president.But in case of the motion for removal, it is for the president to consider issuingnecessary orders or advise reconsideration etc.

- The Report of the Constitution Commission (NCRWC) suggests a new

mechanism to.examine complaints of deviant behaviour of Ji kinds andcomplaints of misbehaviour and incapacity against judges of the supreme Courtand the High Courts. [see Annexure, para-21.-

Identification of other problem Areas: Many of our laws, judicialprocedures and processes, practices and rifuals are too old, antiquated andoutright colonial hangovers to be relevant or effective today. Thus, we continueto address

-the judges as "your Lordship,, and the lower courts as ,,your

!onoyr". The long summer vacations which enabled the British judges to visittheir homes in u.K., still continue. As stated by the Law Minister in Far[amenti::"."try, the Supreme Court remained closed tor 222 days in a year and theHigh courts for 21'0 days. Thus, for more than seven months each vear thej"9g:.r

"1"_.9i holidays, the leave admissible on various counts being in

addition. Mild attempts to modify or restrict the holidays and increase woriingdays for courts have failed. while the govemments seem to favour the changJthe courts are opposed.

. In addition to _long holidays that cause delays in dispensation of quick

and smooth justice, frivolous litigation and the frequent striies by the lawyers


also disrupt the work of courts and calrse harassment to the law-abiding

citizens.

Citizens who ever had the misforfune of coming into contact with courts of

law to seek justice invariably have many tales of diverse woes and worries.

Things have come to such a pass that the ordinary law abiding citizens are

afraid of approaching the police and the courts for seeking justice'

A matter causin! the greatest concem is that of judicial delays'

Expeditions, efficient and inexpensive justice rarely, if ever, reaches the ordinarycitlens. Besides cases of custodial death$ and other instances of human rights

violations of undertrial prisoners, it was appalling to find many accused

persons having spent in jails longer years than the maximum jail sentence

prescribed for ihe offence they are alleged to have colnmitted. Millions of cases

iemain pending for years in courts at various levels. It is not unusual to findcourts dealing with cases filed more than 25 years ago. In many a case one or

the other party dies before the case is decided.

There is another side to judicial delays. No one who is anyone gets

punished for corruption or other heinous crimes like murder, rape, kidnappingiobbery and smuggling etc. Several criminal cases involving former Prime

Ministers, Union Ministers, Chief Ministers and other senior politicians keep

pending for years. These get adjournment again and again, year after year. Nobody is anxious for their speedy disposal. In the meantime, the accused are often

allowed to continue to occupy high eiective offices as Ministers, Chief Ministersetc. The public perception is that ultimately they always go scotfree. Police are

often miiused. There is interference in investigation. Delays dre engineered to

ensure that witnesses lose interest. Police can be relied upon to help the accused

by leaving some legal loopholes making the charges unsustainable. Witnesses

may be bought or bribed and may turn hostile or get liquidated. Sometimes a

deal may be struck with the public probecutor or the lawyer of the oppositeparty. Finally, some courts themselves may not be above being manipulated.When it comes to prosecuting any politician, there is a special comradeship orbirndari feel]rr:rg among the politicians of all parties. The V.I.P. accused are

protected by the state secudty aPParatus at public exPense' They defend each

other. No wonder, public faith in the judicial processes is getting eroded veryfast.

The key players in the judicial prbcess are the litigants, the police andother investigating agencies, the lawyerb and the judges. Rightly or wrongly,lawyers as a class have always been taken to be an unscrupulous lot nottroubled by ethical and like considerations. Thanks to the ready assistance ofcrafty lawyers, it is not uncommon for the police and the courts being misused

for harassing and blackmailing ordinary citizens under the pressure ofinfluential ooliticians or dadas of the underwotld. Members of the bar seem tohave vested interest in keeping cases gping for as long as possible. Lawyersrarely counsel their clients to go in for out of court settlement or to avoidIitigation even when they know that the facts and law are against their client.

ludiciary in lnclian Polity 25

Costs of seeking justice are high and ordinary citizens can hardly afford it.The lawyers are also guilty of charging urueasonably high fees - many partly incash - and having little interest in early disposal of cases. Not all lawyersconform to any professional ethics. On one pretext or the other, the advocatesrepresenting the parties keep asking for repeated adjoumments and judgesgladly oblige.

The ftindamental problem with the entire system of administration ofjustice is its preoccupation with the interests and dignity of judges and lawyerswith concerns of ordinary citizens being the lowest priority, if any. There is asteep deterioration in the quality of judicial officers, judges and lawyers at alllevels. The best or even the second best are not known to be going to theprofession of 1aw.

Possible Remedies and Reform Options: Looked at from the angle andperception of the judges and lawyers, what needs to be done is (i) to fitl up allthe existing vacancies of judges, (ii) increase the number of judges and otherjudicial officers at various levels, (iii) provide higher salaries, better perks andstatus and raise the retirement age for judicial officers at all levels, and (iv)ensure to the judiciary greater independence including financial autonomy.

While there may be some merit in some of these suggestions, the realproblems may lie elsewhere and may call for more fundamental remedies forensuring clearl corruption free, swift and inexpensive justice to all citizensequally. Some of the reform suggestions which have been made call for inquiryand examination.

l. Intensive training and orientation programmes should be organized forthe members of the Judiciary at all levels at the time of their entry. Thereshould be refresher courses for upgradation of training and orientationprogrammes at regular intervals during the service for judicial officersfrom the lowest to the highest courts. Similar training camps need to beorganized for the lawyers for improving their professional skills andresponsibilities.

The recemmendations made by the National Judicial Pay Commissionfor subordinate judiciary could be considered for application equally toHigh Courts and the Supreme Court. The latter, in fact, should becomerole model for all other courrs.

Yearly declaration of assets and liabilities to be made by all judges -lowest to the highest, from the Munsifs to the C.J.I.

Right to speedy, time bound affordable justice equally available to allcitizens to be enshrined as an enforceable fundamental right under theConstitution.

Improving the quality of legal education and training; attracting betterraw material to the Bar and the Bench.

Informal Interaction Sessions between judges, advocates, heads'ofinvestigative agencies and litigants, the philosophy of judicialaloofness no more valid.

ll,

l1l.

lV.

vi.

zo The Citizen and Judicial Reforms

Case management at all levels to be modernised by use of the latestprinciples and mechanisms of frformation technology, computerisationetc.

Need to simplify procedures and court practices, amending Cr. P.C.,LP.C., Evidence law etc.; providing full security and protection towitnesses.

Greater recourse to parallel and altemative dispute resolution (ADR)mechanisms like Lok Adalats, Nyaya Panchayats at village, block anddistrict levels; reviving the systeor of Honorary Magistrates for tryingpetty offences; system of pre bargaining and palment of compensation.

Retirement age for all the judges of the High Courts and the SupremeCourt may be raised to 70 years but they should be strictly barred fromany office of profit or employment thereafter, not even Govemorship orpaid Chairmanship of any Committee or Commission. Also they shouldbe ineligible to make private earning from law through chamberpractice, opinion giving, arbitration etc.

Advocates who are offered judgeship must be obliged to accept it.

Need to restrict the number of appeals; frequent adjouinments not beallowed; firm time limits for final disposal of cases; allowingsubmission of written arguments; time limits for delivery of judgmentafter conclusion of hearing.

Judgments to be short, precise and to the point, not like Ph.D. theses fullof evidence of scholarship through quotations from foreign jurists,judges and judgments; only one agreed judgment in each case, noseparate or dissenting judgments which only confuse the people. Ifbrother judges cannot convince each other or agree among themselves,how can the people be certain about the law and its correctinterpretation.

xiv. The colonial and feudal hangover of the luxury of long summer andother vacations must come to an end. Judges may be required to workfor at least 220 or 230 days in a year with longer daily working hours.In cases of shortage of court rooms, courts may sit in shifts particularlywhere arrears accumulate. For clearing the existing arrears, a timebound programme may be devised and announced.

xv. A dispassionate study may be made of Supreme Court judgmentswhich may need immediate review.

It should be part of the training, orientation and professional ethics ofadvocates not to take up the defeirce of persons who are known to themto be guilty of the crime they are accused of. Also, where the advocate isconvinced that his client has really no case, he should be advised not towaste money'and time - his own and corrrt's. He can advise his clientto seek out of court compromise or seftlement.

Advocates may be categorised as A, B, C & D and their fees regulated bylaw; payments to be strictly by cheques only.

ix.

xl.

xii.

xv9.

ItLdiciary in lndian Polity 27

Many of these suggestions were made at the Constitution Commission(NCRwc) as mentioned in its minutes of the 11th meeting [see Vol. II of theReportl.

For the recommendations regarding the judiciary made by the NCRWC,see Annexure.

Conclusion: If freedom and democracy have to endure and faith in thesystem restored, urgent judicial reforms are a high priority categoricalimperative. These are at least as necessary as reforms in anv other sector, \ /hileit is of the utmost importance that people's faith in the Judiciary remainsinviolate, it is also true that problems in the judiciary are part of ihe largernational malaise and that judicial reforms cannot be viewed in isolation nor Lnthese be the panacea for all the maladies that afflict Indian polity todav. Anintegrated approach to reforms agenda is called for. Judicial .efot-i themselvescan succeed only when accompanied by other essential reforrns. It would benecessary, for example, that the Legislature and the Executive are made todischarge their responsibilities, that the quality of legislation andadministration improves, that there is greater probity in pubtic life andadministration and that the citizens themselvei reaiise tlieir democratic

. obligations and build the necessary pressure to ensure that the Judiciary, theExecutive-_and the Legislature all function in the interests of the people andremain fully accountable to them under the Constitution and rule of law.

Annexure

Recommendations on the ludiciary made lry the National commission to Reztiewthe Working of the Constitution (31 March, 2002)

CHAPTER 7: THE JUDICIARY(1) In the matter of appointment of Judges of the Supreme Court, it would

be worthwhile to have a participatory mode with the participation of both theexecutive and the judiciary in making recommendations. The iomposition of thecollegium gives due importance to and provides for the effective participation ofboth the executive and the judicial wings of the state as an integrated scireme forthe machinery for appointment of judges. A National ludicial Commission underthe Constitution should be established.

The National Judicial Commission for appointment of judges of theSupreme Court shall comprise of:

(1) The Chief Justice of India : Chairman(2) Two senior-most judges of the Supreme Court : Member(3) The Union Minister for Law and Justice : Member(4) One eminent person nominated by the presidenr

after consulting the Chief Justice of India : MemberThe establishment of a National Judicial commission and its composition

are to be treated as integral in view of the need to preserve the independence ofthe judiciary.

[para7.3.7]

The Citizen and ludicial Morms

(2) A committee comprising the Chief Justice of India and two senior-most

Judges of the Supreme Court will corrlprise the committee of the National

Judicial Commission exclusively empowdred to examine complaints of deviantbehaviour of all kinds and complaints o{ misbehaviour and incapacity against

judges of the supreme court and the High Courts. If the committee finds that the

maiter is seriou; enough to call for a fuller investigation or inquiry, it shall refer

the matter for a full inquiry to the committee [constituted under the Judges'(Inquiry) Act, 19681. The committee under the Judges Inquiry Act shall be a

Dermanent committee with a fixed tenure with composition indicated in the said

Act and not one constifuted ad hoc for a particular case or from case to case, as is

the present position under section 3(2i of the Act. The tenure of the inquirycommittee shali be for a period of four years and to be re-constituted every four

years. The inquiry committee shall be constituted by the Presirtent in

consultation with the chief Justice of India. The inquiry committee shall inquire

into and report on the allegation agailrst the Judge in accordance with the

procedure piescribed by the said Act, l.e. in accordance with the sub-sections (3)

io (8) of section 3 and sub-section (1) of section 4 of the said Act and submit their

report to the Chief justice of India, who shall place before a committee of seven

senior-most judges of the Supreme Court. The Committee of seven judges shall

take a decision as to - whether (a) findings of the inquiry committee are proper

and (b) any charge or charges are established against the judge and if so,

whether the charges held proved are so serious as to call for his removal (1.e.

proved misbehaviour) or whether it should be sufficient to administer a

waming to him and/or make other directions with respect to allotment of workto him by the concemed Chief Justice or to fransfer him to some other court (i'e'

deviant behaviour not amountin8 to miEbehaviour)' If the decision of the said

committee of judges recommends the removal of the Judge, it shall be a

convention that the judge promptly demits office himself. If he fails to do so, the

matter will be ptocessed for being placed before Parliament in accordance witharticles 1 24(4) ind 217 (1) proviso (b) . Thts procedure shall equally apply in case

of fudges of the Supreme Court and the High Courts except that in the case of a

Supreme Court Judge the judge against whom complaint is received or inquiryis ordered, shall not participate in any proceeding affecting him.

In appropriate cases the Chief Justice of the High Court or the Chief Justiceof India, may withhold judicial work from the judge concemed after the inquirycommittee records a finding against the judge. [Para 7'3'8]

(3) Article 124(3) contemplates appointment of Judges of Supreme Courtfrom three sources. However, in the last fifty years not a single distinguished

iurist has been appointed. From the Bar also, less than half a dozen |udges have'been

appointed. It is time that suitably meritorious persons from these sources

ur" uppoittt"d. lPara7.3.9l

(4) The retirement age of the judges of the High Court should be increased

to 65 years and that of the Judges of the supreme Court should be increased to

68 yeirs. [Para 7'3.10]

ludiciary in lndian Polity 29

(5) In the matter of transfer of judges, it should be as a matter of policy andthe power under article 222 and its exercise in appropriate cases should remainuntouched. The President would transfer a Judge from one High Court to anyother High Court after consultation with a committee comprising the ChiefJustice of India and the two senior-most fudges of the Supreme Court.[Para7.3.1l]

(6) A proviso should be inserted in article 129 so as to provide that thepower of court to punish for contempt of itself inherent only in the SupremeCourt and the High Courts and is available as part of the privilege of Parliamentand State Legislatures, and no other court, tribunal or authority should have orbe conferred with a power to punish for contempt of itself. lPara7.4.7l

(7) A suitable provision may be inserted in the Constitution so as toprovide that except the Supreme Court and the High Courts no other court,tribunal or authority shall exercise any jurisdiction to adjudicate on the validityor declare an Act of Parliament or State Legislature as being unconstitutional orbeyond legislative competence and so ultra aires. Such a provision may be madeas clause (5) of article 226. [Para 7.5]

(8) A 'Judicial Council' at the apex level and Judicial Councils at eachState at the level of the High Court should be set up. There should be anAdministrative Office to assist the National Judicial Council and separateAdministrative Offices attached to Judicial Councils in States. These bodiesmust be created under a statute made by Parliament. The Judicial Councilsshould be in charge of the preparation of plans, both short-term and long-term,and for preparing the proposals for annual budget. lParaT.71

(9) The budget proposals in each State must emanate from the State

Judicial Council, in regard to the needs of the subordinate judiciary in that State,and will have to be subrnitted to the State Executive. Once the budget is sofinalised between the State Iudicial Council and the State Executive, it should bepresented in the State Legislature. [Para 7.8.1]

(10) The entire burden of establishing subordinate courts and maintainingsubordinate judiciary should not be on the State Governments. There is a

concurrent obligation on the Union Govemment to meet the expenditure forsubordinate courts. Therefore, the Planning Commission and the FinanceCommission must allocate sufficient funds from national resources to meet thedemands of the State iudiciary in each of the States. lPara 7.8.21

(11) The presiding officers in courts should be adequately trained. Toensure competence, there should be a proPer selection, freedom of action,training, motivation and experience. To maintain their competence it is

necessary to have continuing education for the judges. Some national judicialinstitutions have to be properly strucfured to give such training. There shouldbe a proper monitoring of moving the judges where work demands suchmovement from places where there are no arrears of work. There has to besystematic assessment of training needs of judicial personnel at different levels.

lPara 7.10.21


(12) The Govemment should ensurte basic infua-structure needed to allcourts and arrange to ensure that courts ane not handicapped for want of infra-structural facilities. Govemments, both at the Centre and in the States, shouldconstifute committee of secretaries to review govemment litigation with a viewto avoid adjudication, wherever possible, give priority in filing of writtenstatements, wherever required, and instruct govemment advocates to seek earlydecision on govemment Litiga tion. [Para7.1,0.4]

(13) In the Supreme Court and the High Courts, judgments shouldordinarily be delivered not later than nirrrety days from the conciusion of thecase. If a judgment is not rendered within such time - it is possible that thecomplexities of the case and the effect the decision may have on another similarsituation might compel greater and larger judicial consideration andcontemplation - the case must be listed before the court immediately on theexpiry of ninety days for the court to fix a specific date for the pronouncement ofthe judgment. IPara 7.10.5]

(14) An award of exemplary costs should be given in appropriate cases ofabuse of process of law. [Para7.ltl

(15) The recommendations of the Law Commission of India in regard tothe Nagar Nyayalayas, Conciliation Courts, ADR systems of urban litigation,evidence recording by Commissioners, etc. as incorporated in the Code of CivilProcedure (Amendment) Act, 2000 should be brought into force with suchmodifications as would take care of a few gerious obiectlons. [Para 7.13.3]

(16) The provisions relating to ionciliation in the Arbitration andConciliation Act, L996 should suitably be amended to provide for obligatoryrecourse to conciliation or mediation in relation to cases pending in courts.Further, the scope and functions of the Legal Services Authorities constitutedunder the Legal Services Authorities Act, tr987 should be enlarged and extendedto enable the Authorities to set up conciliation and mediation fora and toconduct, in collaboration of other instifutions wherever necessary, trainingcourses for conciliators and mediators. [Para7.13.4l

(17) Each High Court should, in cOnsultation with the judicial councilsreferred to in para 7.7, prepate a strategic plan for time-bound clearance ofarrears in courts under its jurisdiction. Tlrre plan may prescribe annual targetsand dishict-wise performance targets. Higlr Courts should establish monitoringmechanisms for progress evaluation. The purpose is to achieve the position thatno court within the High Court's jurisdiction has any case pending for morethan one year. This should be achieved witlhin a period of five years or earlier.

IPara 7.13.5]

(18) The criminal investigation sb/stem needs higher standards ofprofessionalised action and it should be provided adequate logistic andtechnologicai support. Serious offences should be classified for purpose ofspecialized investigation by specially selected, trained and experiencedinvestigators. They should not be burdened with other duties like security,maintenance of law and order etc., and dhould be entrusted exclusively withinvestigation of serious offences. lParaT.14.21


(19) The number of Forensic science Institutions with modem technoloeiessuch as DNA fingerprinting technology should be enhanced . fpara7.7[3]

_ (20) The system of plea-bargaining (as recommended by the Lawcommission of India in its Report) should be introduced as part of the processof decriminalisation. [paraZ.I4.4]

(21) In order that citizen's confidence in the police administration isenhanced, the police administration in the districts should periodicallv reviewthe statistics of all the arrests made by the police in the distiict as to how manvof the cases in which arrests were made culrninated in the filing of charge-sheeisin the court and how many of the arrests ultimately turned out to beunnecessary. This review will check the tendency of unnecessary arrests.

[Pan7.145](22) The legal services authorities in the States should set up committees

with the participation of civil society for bringing the accused and the victimstogether to work out compounding of offences. [para 7.14.6]

(23) Statements of wihresses during investigation of serious cases shouldbe recorded before a magistrate under Section 164 of the Code of CriminalProcedure, 1973. [para7.I4.7]

(24) The case for a viable, social justice-oriented and effective scheme forcompensation victims is now widely felt. The Govemment at the Union leveland in the States are well advised under the directive principles as well asunder International Human Rights obligations to legislate on the subl'ect of aneffective scheme of compensation for victims of crime without further delay.

[Para 7.15.3]

(25) The tremendous support which the criminal justice might derive fromthe people once the compensation scheme is introduced even in a modest scale,and the possibilities of advancing the crying need for social justice in a very realsense/ are attractive enough for the State to find money to float the schemeimmediately. [para7.Ii.4l

(26) The National Informatics Centre in collaboration with or with theassistance of the Indian Law Institute and the Government Law Der:artmentsshould set up a Digital Legal Information System in the country io that allcourts, legal departments, law schools would be able to access and retrieveinformation from the data bank of the important law libraries in the counhy.

lPara7.17.21(27) Progressively the hierarchy of the subordinate courts in the country

should be brought down to a two-tier of subordinate judiciary under the HighCourt. Further, strict selection criteria and adequate training facilities for thepresiding officers of such courts should be provided. In orde"r to cope up withthe workload of cases at the lower level and also to curtail arrears and delay, theStates should appoint honorary judicial magistrates selected from experiencedlawyers on the criminal side to try and dispose less serious and petty cases on

{:4,r:l'I ''i' _ i

i'i+r -'

part-time basis on tJre pattern of Recorders and Assis

Liare.,. ",, *"-,,.,*. .


could set for, say, 100 days in a year and hold court later in the evenings afterregular court hours. This would relieve the load on the regrrlar magistracy.

[Para 7.18]

(28) Since the issues relating to human rights, more particularly relating tounlawful detention, have now occupied a center-stage, both nationally andintemationally, it shall be desirable that the Protection of Human Rights Act,1993 rrray be suitably amended to provide that, in addition to the powersgenerally vested in that Court, such courts shall have the power to issue

directions of th€ nature of a habeas corpus as was available to the High Courtsunder section 491 of the Code of Crir4inal Procedure, 1898. Vesting of suchpower will go a long way in providing help to the indigent and vulnerablesections of the society in view of the proximity and easy accessibility of the

Court of Session. lParaT .1"9.31

(,6B)

Part IIjuolcIARY AND

|uolcIAL RsronMS

WHY HAS TUDICIARY FAILED?Shanti Bhushan*

Although it is more than 50 years back that India constituted itself into arepublic, the message of the republic did not quite sink in either among thecitizens or among those who govern us. Still, the mentality which was presentduring the period that we were being ruled by England continues to persist.People thought that there was only a change of rulers, that instead of the Britishmlers, Indian elected rulers had taken their place. The equation between therulers and the people who are supposed tobe governed did not undergo achange. The common people including the educated do not even today reilisethat sovereignty resides in them, it does not reside in the parliament, it does notreside in the Supreme Court. Real sovereignty resides with the people. Everyinstitution of governance really functions for and on behalf of the peoplewhether it be the Parliament or it be the judiciary, all of them are appointedpeople, on behalf of the people to serve the people. And this rrressage of therepublic has not fully sunk in. Ultimately, all decisions concerning the countrywill have to be taken at the level of the people at large, informed public opinionwill have to emerge, it will have to be created all over brdia and people will haveto be guided to come to certain conclusions. A strong public opinion when it isformed and when it is expressed, it will have to be followed by the so-calledrepresentatives of the people. We need not depend upon the two-third majorityarnong Members of Parliament. They may have their own agenda. They arecertainly elected by the people in a serue but unless there is a very strong publicopinion created on matters which touch the people, it will be difficult to activatethem to adopt measures - whether they be by constihrtional amendments or byway of judicial reforms - to do the needful.

What is the situation today so far as judicial reforms are concemed?Judiciary is one of the institutions of governance and it govems for the people.So, people must feel satisfied. People are entitled to express their distresl, their

* Senior Advocate, Supreme Court, Former Union Minister of Law, Justice andCompanv Affairs.

36 Tlrc Citizen and lttdicial Reforms

dissatisfaction and those who man the judiciary should not take such criticismamiss. They should not mind such criticisms even when these are harsh

because many a time, they represent a reality as eroding the confidence amongthe judiciary and, therefore, not permlssible in a republic where the totalsovereignty resides in the people. People are entitled to discuss every institution,come to their conclusion because it is only when faults are found, ascertained,only then there can be an effort to do away with those faults and to reform theprocess. What is the situation of the administration of justice today, more than50 years af ter we established the republic and adopted our Constitution? If youask members of the litigant public, potential wibnesses, victims of policebrutality, accused persons, complainants or any section of society, uniformly the

answer would be that people are thoroughly dissatisfied with the way in whichjustice had been administered during the last 50 years. And they are entitled topose this question, who has been responsible for this state of affairs which the

people find today to their distress. Somebody has to be made accountable.Somebody at least will have to be criticised. It has been the joint responsibility ofthe Parliament, the Government as well as the judiciary, more so the judiciarybecause judiciary was made responsible for administration of justice. If theywere not receiving any cooperation from the other wings of the Governmenteither the Parliament or the Executive which they felt was absoiutely necessary,it was for them to have raised their voice, brought those issues in the publicdomain and got public opinion created which would exert a pressure on theexecutive to do the needful. But it has not entirely been the fault of the executive.A major part of the responsibility will have to be borne by the judiciary.

Why has the judiciary failed? The whole system was based on the premisethat the jr.rdiciary would be manned at every leve1, from the lowest level to thehighest level by the best or comparatirvely the best brains available in thecountry. Unforttinately, it did not happen. We had the best of brains and someof the ablest people in the jr.rdiciary in 1950 - there are still some very brilliantpeople in the judiciary - but if we look at the judiciary at iarge collectively, thepercentage of excellent people who can be regarded as ideal judges hasdiminished. It was very much higher in 1950 and it is very small today. Whatare the reasons? Sornehow we have not been able to get the best people in thejudiciary. Why? Particularly because the recruiting ground of judiciary atdifferent levels has been the bar, namely. lawyers. As everyone knows, the legalprofession for a very long time has been the profession of a last resort by thestudents. In fact, if we go to the marriage market which is a true barometer ofwhat people think about different professions, we find that when a personthink6"of marrying his daughter to somebody, he first thinks of the members ofthe lAS, if IAS is not available, IPS would do, then they think of engineers, juniorengineers and then even more minor official clerks. If they cannot get any ofthese, then they think of some lawyer.

After a person did his graduation and thought of what he should dothereafter, he would think of various courses. If he failed to secure admission inengineering or in any other thing he would think of LL.B. Unfortunately^ thelawyer class over the years has failed tp attract the best talent in the country

Why has Judiciary Failed?

barring some exceptions. Now if we have that kind of class, namely, those whowere essentially failures and if the recruiting had to be done only from amongstthem, then barring a few exceptions that we sometimes got very good judges etc.,but the general level was not the kind of level that we needed. Therefore,something needs to be done in that direction. And perhaps, one of the measureswhich is being considered, was always there in the scheme of things, namely,All-India Judicial Service. If we confine the recruitment to the All-India JudicialtService to persons who are lawyers, who have already done law, we will not beable to get that kind of talent which we might get if we do not make thepossession of a LLB degree a condition. We must get the best brains, after thatwe can give them legal training, what they learn during LLB can be taught tothem after they have been recruited. We should give them at least the same payscales which.are given to IAS and in fact a little better pay scales than the IASbecause adr#nistLtion of jusfice is a very important thing.

The life of the common man particularly in a country where we have therule of law has got to be govemed by law. Everything, even the progress ofsociety will have to be through laws. Laws will have to be administered and thejudges will play a very important role in that. But today new kinds of issues arearising, even in matters before law courts. Earlier in 1950 or prior to 1950;simple questions used to come up, namely, offences under the penal code so faras criminal law was concerned. Under civii law, some property disputes, mot'reydisputes, money lending disputes and other kinds of disputes and so on. Buttodap the nature of the disputes have undergone a great change. The powers ofthe courts have been very much increased after the Constitution. When theConstitution provides for judicial review of every administrative action,obviously before they administer justice the judges will have to understand allthose compiex issues to be able to take an informed decision. They mdst bepossessed of that high level of intelligence which God alone gives. Therefore, wewill have to think in many directions as to how to have an adrninistration ofjustice in this country which will be equal to the task, will not suffer from manydefects from which the adminishation of justice is suffering today.

During the last 50 years, there have been any number of committees ofjudges to go into the question of arrears. They have recommended all kinds ofsolutions. Why have those solutions not produced any results? On the otherhand, the problem has kept on muliiplying. A multidirectional approach willbe necessary to solve this problem. Sometimes, it has been suggested that currentcases are very important. They should be dealt with very fast. Recehtly, we sawin United States in regard to the election of the President, namely, some legalcontroversies had arisen and the legal controversies were first going to a lowercourt, then going to the Supreme Court of that State and finally landing up withthis Supreme Court of the United States. And the speed with which decisionswere being givery and appeals were taken, namely, in the matter of days andweeks, so many decisions were given, appeals decided and finally the SupremeCourt decided it. And it is not only in America, sometimes when the SupremeCourt of India also feels that there is an issue which needs to be resolved withina few days, it is able to.do it. Only when it thinks that the issue needs to be


decided quickly, it is able to do it. Now what should be the time frame in whicha case should be decided because after all decision of a case is not a matter ofluxury. It has a certain prlrpose. The most important purpose is that if we giverelief to a person against whom some wtrong has been done by another personand he gets prompt ielief, the other 100 persons will be deterred fromcommitting that wrong. Today wrongs are committed in the belief that nothingcan be done against the wrong doer. He will go to a court, court will take 20

years, then there would be appeals, they will take another ten years. So, the manwill get tired.

Only very recently, a couple of rhonths back, there was a case in theSupreme Court which arose among the members of a very rich Hindu family ofKarnataka, a partition suit which was filed by ten brothers who wanted todivide their properties so that they and their wives cease fighting with eachother. So, they filed a suit for partition in 1948. Suit for partition involves firstpassing a preliminary decree, namely, declaring the shares of the differentmembers of the family and then dividing the properties according to thoseshares and then passing a final decree and handing over possession of thoseseparate shares to different persons. It is incredible and hard to believe that thefinal decree in the partition sr.rit which was filed in 1948 is yet to be passed bythe Supreme Court. Hopefully, when they deliver judgment and in that case,judgment has been reserved, but thereafter executiory namely, handing overpossession etc., would still remain. If this is the pace at which the judicialproceedings progress, then no wonder if people have lost faith in theadministration of justice altogether.

In a criminal case, if a person commits a crime, one of the most importantobjects of criminal jurisprudence is that prompt punishment be given to theperson who has committed an offence $o as to deter others from committingsimilar offences. Similar also is the case with civil cases. Namely, if a landlordhas a right to evict a tenant and promptly he gets eviqted ttuough the machineryof law and also not only gets evicted but also takes two or tfuee months for theproceedings to get decided, he also getS penalty, namely, penal rent from thetenant, then no tenant knowing that yes, the law does not give me protectiory Iam bound to be evicted, he will not compel the landlord to go to the court whichhe will find counter productive because he will feel that within three months, Iam going to be evicted and for my contirtrued occupation for three months also,maybe, the five times rent that I have been paying, the penal rent would be thedecree against me. So, what is the use, wtry should I not vacate myself. So, themain purpose of the law is to make peqple act according to law, both in civilmatters and criminal matters. But both these objects have failed today onaccor.rnt of the slower and tardy movement of the couts of justice and, therefore,something needs to be done. In a criminal case, after the investigation iscomplete and the police have filed a charge-sheet or the private person has fileda complaint, what is required is only witrfresses. Witnesses have to be produced,they have to be cross-examined, charges framed and thereafter arguments heardand judgments delivered. By and large except in a very complex case of someconspiracy etc., the whole thing can be done in one month. In one month we can

Why has ludicinry Failed? gg

certainly get the witnesses produced, cross-examined, arguments heard,judgments delivered. Once the trial court has delivered judgment, how muchtime should it take for the appeal because everything is ready, counsel alreadyknow as to what is the case for both the parties. Only some time has to be givento the appellant to draft his grounds of appeal, he could do it in a week oi twoand, thereafter, the court is available. The case can be put down for hearing inanother three days and within two or three days the arguments could- becompleted and within one month of the judgment of the trial court, the appellatecourt would decide the matter. So, it should not take more than a month oi so foran appeal to get decided. Even if there was further appeal to the Supreme Court,another month.

ln 1,971,, on behalf of the Indian Council of World Affairs, a delegationwent to study the judicial systems of some European countries includingEngland and some Middle East countries. We were pleasantly surprised to findthe situation in Iraq. Iraq is a small country. The entire Supreme Court mattersare discussed and we found that they have a three tier system, trial court both incivil and criminal, one appeal on fact and law both a.rd- finally a revision to theSupreme Court of Iraq on questions of law only. In every case, all the threestages are over within one year. If Iraq can organise its judicial system in thismarmer, why can India with a culture of 5000 years, not organise things in sucha manner that we would be able to dispense with final justice within at the mostone year, all the tiers included. So, evidently, there has been a seriousnegligence, failure on the part of somebody and the people of this country areentitled to know who have been responsible for this and make them accountablein some manner, at least, for having failed us. One of the suggestions has beenthat the judges in every court deal with the current cases promptly and in theminimum time so that every case is heard, without delay. Sometimes, of course,service of notice on the other party giving time to file a reply etc., may requiretwo weeks and a couple of months may be needed for a court to decide the case,but it should not exceed that. For clearing the old cases which have beengathering dust, retired judges of every court could be invited. There is provisionin the Constitution for ad hoc judges and particularly today when pensions havebeen made fairly handsorne, retired judges may be prepared to come anddispose of old cases because after retirement, what do they do. They are wastingtheir time and their health deteriorates, their respect in society diminishes. Eventhis factor is quite enough to activate them, namely, even if they are not paid anyother remuneration, it will be in the interest of their health, it will be in theinterest of the respect whicH they get from society. If an appeal was made to theretired judges without promising any additional remuneration, they will behappy with their pensions but the respect that they will get and the day-to-dayworking, the pleasure which a work gives to a person, there is no higherpleasure which a person gets than out of work particularly if the work he findsinteresting. Of course, the society would like to pay them so that they do nothave to spend their own thing in discharging the duties. So, old cases they canhear, experienced people and lawyers will argue. We need not be so fetish aboutaccommodation etc. In the Allahabad High Court, if a single judge matter was

40 The Citizen antl ludicial Refotms

heard in the chamber because for some reason, the judge was not been able tocome up to the court, there was no problem because the quality of justice does

not depend upon ttre quality of the building in which the judge sits. It depends

upor, ti-e quality of theludges and the quality of the members of ihe bar who are

assisting. So, even if we had a court room, in fact, in Board of Revenue, duringthe winter in A'llahabad, some ICS judges felt that under a tent, it was muchwarmer. So, they used to shift their court rooms under that tent and the cases

were very well argued by both sides. .Always the most eminent judges haveretained their humility for all time. The abler the judge, the humbler he feels.

There used to be Justice Niyamatullah in the Allahabad High Court long before.He was such an eminent judge but whenever even the junior most lawyerwould start arguing before him, his derneanour would show as if some veryprofound things were going to emerge from that junior counsel. That was the

time given. And so far as great judges and able judges are concemed/ they donot depend upon any arrogance or any assertion of authority for getting respect'It is their ability, it is their integrity, it is the quality of their mind which in itselfgets instant respect from everybody. Today, unfortunately, the arrogance has

crept into the thinking of judges, they feel that this is the prerogative which has

been given .to them. They are called "My Lords", to lord over everybody and,therefore, they must deal with people like this. They must summon everybody tocourt for contempt or otherwise to explain things. kr fact, they feel sometimes alot of pleasure if a very high officer can be called to be made to stand before themand then they would make some comment on the dress in which he has

appeared in the court, not knowing themselves horv to dress for appearance inthe court. These are all signs of inferiority complex. Great judges do not act inthis rnanner. So, a lot needs to be done.

Coming to the Bar Council, the independence of the Bar is the slogan.Earlier judges used to regulate the bar. If there was a professional misconductcommitted by a member of the Bar, the power to deal with that professionalconduct was with the judges. But this was an era of independence of everyprofession. And, therefore, lndian Advocates Act which was enacted in 1961

said that it is only the people elected by the Bar which must administer theirlaw. Lawyers are doing all kinds of things and we need to be punished verystrongly for that. But unfortunately the system of self-governance has notsucceeded in India. Whichever profession you take, expectation was that everyprofession will be responsible enough to govern itself by itself in a responsiblemanner to curb the evils which rlrere growing in its profession. Butunfortunately whether you take mediqal professiory legal profession or anyother professiory self'governance has failed. And, therefore, the system needs tobe changed, namely, it must be administered not merely by the representatives ofthe profession but also including the representatives of who are to be served,namely, consumers of justice. On the lines of the position of patients in the case

of medical profession so the system of those who wield the authority under theAdvocates Act will have to be chqnged. Maybe, 50 per cent lawyers'representatives (elected persons), and fifty per cent some other way who couldrepresent the litigant public because it i9 a joint entelprise. Therefore, they mustsee that no wront systems creep in the legal profession.

Why has ludiciary Fniled? 41

There has been considerable debate regarding the National Judicialcommission' Even the Nafional commissiop io Review the working of theconstitution, has referred to this National judicial Commission. ThIv havemade their recommendations and people win be deliberating on thor"recommendations. The Lawyers Judicial Accountability Committee had alsoconsidered this.matter several years ago. It had drafted ; biil and sent it severalyears back. The National Judicial Commission which must be given the ultimatepower of selecting the proper judges who will man our higher iourts, must be sodesigned because it needs various kinds of inputs. Of couise, the inputs namely,who are competent lawyers or competent subordinate judges, that input is mostlikely to_ come from the judiciary because they alone are inl position io examinethe professional worth of a lawyer or the professional worlh of a subordinatejudge. But there are other inputs also. It is not,merely the technical corripetencewhich is material,, what kind of philosophy does he have. In USA people areselected to become judges of higher courts on various considerations. Dbes hislegal philosophy accord with the national philosophy contained in theConstitution? These are also very important inputs.

't robably, these inputs

might not come from the judiciary. These inputs perhaps might come fromrepresentatives of Parliament because they are supposed to be more in touchwith the national ethos. They might come more from some other source. But atthe same time, the past experience has shown that since parliament is controlledby the executive, whichever has the maiority, so the Govemment acts on behalfof the Parliament. The Govemment, unfortunately. past experience has shown,attaches more importance to its own political agenda than io the welfare of thepeople or the national cause and so on. That is what the experience has shown.Therefore, there is an effort for the Govemment of the day to put its own men incrucial positions of judiciary etc. That effort is not good for the people of thecountry. While qome kind of an input from the parliament may be permissible, acontrolling voice cannot be conceded to it. At the same time, a controlling voicealso cannot be conceded from the ludiciary. So, the National lidi.iulcommission will have to be so balanied tha[ neither the executive or theParliament can control it by having majority representation, nor the judiciarycan control it by having a majoriiy representation. The Committee on JudicialAccountability had suggested a five-member commissiory Chairman to benominated by the Chief Justice of India and the other Judges of the SupremeCourt sitting together as a collegium. One member also to be nominatei by acollegium of all the Chief Justices of the various High Courts. So, out of five, twopersons wouid be representatives of the iudiciary, one person to be nominatedby the Union Corrncil of Ministers, namely, tire ruling party which is therepresentative of the Parliament and one member to be nominated by the leaderof the Opposition because it is not merely the ruling.party but the oppositionalso in consultation with the leader of other opposition groups in ih" t"oHonses of Parliament and the fifth member could represent the Bir where eitherthe all-India Bar council could select or a collegium of Attomey General,solicitor General and all the Advocates General oi states could seiect such aperson. So, the position would be two persons to represent the parliament, one


through the ruling party and one throrrrgh the opposition, two persons to

repre;nt the judiciary, tl.e Supreme Court and the High Courts and another

peison the fifih persoo this together will take the final decision in regard to

which persons ire to be appointed to the judiciary. More important than

appointment is disciplining the judiciary, Everyone knows about it. Recently,

tne Cnief Justice of India declared at sorne place that about 20 per cent of the

Indian judiciary is corrupt. He was maki4g some speech in Kerala. Others have

also said it in the past. But he was very fqrthright' He also said that there is no

system by which we can, after the failure of the impeachment, what has been

.illed i*peu.hment. I do not find any fault with the expression ofimpeachment. Impeachment is one method of getting rid of a person. You may

call it impeachment, you may call it a motion for removal etc. That is a

technicality. But in any case, that system had failed in Justice V' Ramaswami

case because it was found that the Members of the Parliament politicalised it.And, therefore, one political party, all the MPs refused to even vote one way orthe other. This was almost a iudicial fut'tction to decide whether a person hadbeen found guilty or not. And those who had to decide, they said, why shouldwe apply our mind and the result was that even though the resolution was

unanimous in favour of removal, it did not pass because it required an absolute

majority of the total membership of Parliament. This was adverted to by the

Chief Justice of India and he said the system had failed and there is no othersystem in place. Of course, those element$, the corrupt elements of the judiciarywere very happy. \a/hy should they need a system in place to curb them' But the

people of India need a system in place to come here and to keep them. Now itwas suggested by the committee on jlrdiciai accountability that this veryNational fudicial Commission may also be given the power to discipline the

ludges, namely, to go into this questiory take a decision and direct removal of thejudges as used to be done under the Government of India Act. Even this systemwill succeed only if, because what has been suggested by the Law Commissionis, all right, Chief Justice of lndia, two judges of the Supreme Court and LawMinister and one person to be nominated by the President possibly on the

advice of the Council of Ministers. But do they have the time? They are busywith their own work. These are very impprtant matters. Whichever is the body,they must be assisted by a permanent body, namely permanent body which has

the power to entertain complaints, enquiie into them, collect evidence and thenpresent the findings to the National Commission. Unless you have a body,complaints can come from any source, cotrnplaints may be false, complaints maybe true but unless there is a body with statutory powers of investigation like the

police, they can lay a trap. They can collect any other evidence. A common marleven a member of the Bar who knows that a particular judge is corrupt has no

means of proving it because he cannot collect evidence. Only a statutoryauthority will be in a position having the power to collect must collect evidence.So, this must be assisted by a body which must have its own independentmachinery for investigating matters and it should investigate and come out withevidence and then only any Process can be activated. This is the most importantfor doing away with black sheep.

Why has ludicinry Failed?

- wl,'ut does independence of judiciary exactly mean? Because there hasalways been a danger in the matter of appointments, the elevation as ChiefJustice etc., the ftrnctiory to some extent, wiswith the Government haditionally.Therefore, the idea is the tendency among judges would be to keep those happywho will count so far as his promotion and advancement is concemed aniindependence of judiciary means, you must be devoted only to what is vour real

\ job.and not looking left or right, not bothered about your prospects. \,ve should'be happy about what we have got and reave it to God wheiher we go to a highercourt or not. But what is more important is, we must eam the etemal gratituJe ofthe society in doing our job properly. Now this is the independence Jtpdi"iary.But many things which are said in order to make the judiciary independent,they_must have the right to decide in regard to their pay scales, perks and so orythat has nothing to do with the independence of judiciary.

Revival of the institution of honorary magistrates may be suggested.Lawyers tend to make things look very complex and very complicate-d. Butthings are fairly simple, namely, if somebody has stolen so-ibody,i property orsomebody has hit another person and., therefore, committed att oifer,ce of

"iin"ttheft or causing hurt, it does not require too much of expertise, namely toexamine the witnesses and come to a conclusion as to whether these witnessesare speaking the truth or not. Therefore, if there is plenty of retired armv officers

. they are very intelligent and national minded ieop6 - if we are dispensingjustice even in small matters, it is a matter of very great respect. we will get a lotof respect from the society particularly if we are doing things in a good mannir.There is lot of reservoir of lay people we should depend more on liy people likeex-army officers, ex-public servants and other people, may be retired pdgis alsqnamely, lawyers who have called it a day, this is too much trouble, too muchtension to go to court and listen to what judges have tb say but we would like toserve the society even as honorary magistrates. It wilI be, small cases may be, butwe will certainly eam the respect of society. so, lot can be done but loi will bedone only if we have etemally vigilant public opinion and organisations toharness that public opiniory create that public opinior; and for that publicopinion to assert itself.

(,6&)

TUDICIARY AND TUDICIAL REFORMS

J.S. Vetma*

The Preamble to the Constitution of India begins with the words 'We, the

people of India', and ends with 'do hereby adopt, enact and give to ourselvesthis Constifution'. These words indicate the source of ultimate power under the

Constitution. The distribution of powgrs by the specific provisions of theConstitution to different wings/ institutions established by the Constitution is,

therefore, by the political sovereign - the people, and the powers must invariablybe exercised for the public good. The polilty envisaged is a Democratic Republic,which emphasises this aspect. Aristotlels Politics emphasised the role of thecitizen, and it said: 'The greatest of all the means. ..for ensuring the stability ofConstitution - but which is nowadays generally neglected - is the education ofcitizens in the spirit of the Constitution... It consists in doing the actions bywhich a democracy will be enabled to survive. ..' The citizens must, therefore, be

vigilant to ensure that all institutiorrrs are people-friendly and becomeinstruments of society, not remain merely instruments of power. The justicedelivery system must also satisfy this demand.

Broadly, the constitutional scheme is of distribution of powers between the

three main wings of govemance - the Legisiature, Executive and the Judiciary.To the judiciary is assigned the role interpretation of the Constihrtion and thelaws and to ensure that each wing keeps within the limits delineated for it. The

added responsibility for the judiciary is to keep itself in check by the practice ofself-restraint. In this sense, the pre-eminent role of enforcement of the Rule ofLaw is the primary concem of the judiciary. The Rule of Law is a part of the

basic structure and Judicial Review, including independence of the judiciary, isa basic feature which carrnot be abrogated in exercise of the amending power ofParliament under article 368 of the Congtitution. The functioning of the justicedelivery system and the need for Judicial Reforms have to be viewed in thisperspective.

* Former Chief Justice of India and curnently Chairman, National Human Rights

Commission. The present paPer was Part of the larger CPR study on Political

44Reforms.

Ittdiciary and ludicial Reforms 45

* Jh" constitutional promise in the preamble envisages justice, Liberty,Equality and Fraternity assuring the dignity of the individual and unity andintegrity of the nation. These are the core values of the hdian polity. The systemof administration of justice must ensure realisation of this promise of a people-friendly welfare state. It must be conceded that the promise is vet to be realiied.

. even though efforts are being made to move in that direction. #e must, therefore.identify the areas of deficiency and devise suitable pragmatic ways ofelimina ting the defects.

The system must ensure equal justice to every citizen and the equaloperation of laws against each. Even though speedy justice is read within theambit of article 21, yet the phenomenal ,Law,s Delays, continue to be anightmare and can be said to be the biggest slur on the justice delivery system.Access to justice for all is another requirement for providing equal jusfice. Inspite of the provision for legal aid, and the enactment of article 39A and UreLegal services Act, as well as the procedure of pIL with libe ration of locus standi,'the goal is far to reach'. Except in Public Interest Litigation (pIL) matters,exorbitant costs and lawyers' fees deny justice to the needy in many cases.Procedural delays and several tiers of litigation are frustrating many genuinecases while encouraging frivoious litigation adding to docket explosion andfurther delay in conclusion of cases. Unless suitable checks arJ devised tocontrol these negative factors, Law's Delays cannot be checked. There is need forradical reforms in this area.

Justice is a divine function and we, human beings, in attempting todispense justice may be seen to be partaking in a divine exercise. This ii anissue of the highest priority and significance. The need, therefore, is for everyjudge to develop the haits essential for the discharge of this function, as best asis humanly possible.

Appointment and Quality of JudgesAnother important area is the constitution of the judiciary with the best

available personnel at every level. The people are expoied to, and are affectedmost by the performance at the grass roots level. The composition of thejudiciary at the lower levels needs considerable improvement. Unless the lowerlevel's performance improves, the desired result cinnot be achieved. Irutead ofimprovement at the lower levels, there appears to be an increasing deteriorationat the higher levels. The process of composition of the judiciary at all levels byproper selection/appointment and enforcement of accountability witirimprovement of the stock needs serious and urgent consideration. The quality ofperformance depends on ttre qualify of personnel who operate the system.

^ The provision for appointment of judges in the Supreme Court and HighCourt, contained in articles 724 and 217, rcmarns the same as originaiyenacted, but the need for a change is being debated primarily on account of themanner in which the provision is seen to be worked. In the first 25 years of theConstitution, there was no serious comment made in any responsible quarter onthe manner of exercise of the power of appointment. A convention haddeveloped that without express use of such language, the opinion of the ChiefJustice of Lrdia, formed in consultation with the executive, was given primacy.

46 The Citizen and ludicial Refotms

However, in the seventies, the ertecutive began to claim primacy in the

matter of appointments and transfers which led to the First Judges case [S.P'

Gupta v. Union of lndin, AIR 1982 SC 1491 wherein the Supreme Court itselfupheld the executive's claim of primacy. That led to the executive's supremacyin the matter of appointment as of right which threatened the independence of

the judiciary.

Dissatisfaction with the working of the process led to the Second ludgescase [SCAOR v . Llnion of India, AIR 1994 SC 268] wherein primacy of the opinionof the judiciary, expressed tfuough the Chief Justice of India, came to be

established, emphasising that the role of the executive and the judiciary was

participatory, the exercise being joint in which both have a role to play'However, some dissatisfaction with this led to the presidential reference and the

Third ludges case [Special Reference No. 1 of P9g, D98(5) Scale 629] whichreaffirmed the law laid down in the Second Judges case

As it is, the power given to both the wings by the constitutional provisionsis not to be treated as personal empowerment but imposition of a responsibilityto find the most suitable person for appointment. Only the correct perception ofthe purpose for which the power is given can avoid confrontation. The absence

of express provision of primacy to either appears to have been to emphasise thatit is the joint responsibility of both the wings to work together to make the bestpossible selection which really is the object of enactment of the provision.Perhaps, the present situation warranto a review in the light of the experiencegained so far to indicate clearly what was implicit throughout in these

provisions which were so enacted to avoid the possibility of strict Posturesbeing adopted by either side with a view to Promote a spirit of moderation ineach to appreciate the value of the other's opinion.

There is no doubt that the proportion of judges to the number of people forwhom the courts cater is quite low and a study of the comparative figures inother jurisdictions reveals that the judge strength needs to be increased five-fold'Increase in the number of judges is necessary on account of the populationexplosion as also the growing awareness which is increasing litigation. But anincrease made at one time will dilute the quality of the personnel. The desiredincrease should be in phases so that there is no compromise on quality in fillingthese offices.

It is also to be remembered that a person not of the desired merit will addto the problem by entertaining cases with no worth and rendering judgmentswhich require correction at the higher levels which would be counter-productive. Care must be taken to ensure that there is no comprgmise on thequality of the personnel recruited to the judiciary at any level.

It is also necessary to improve the conditiors of service to attract bettertalent even at the level of subordinate judiciary so that the workload at thehigher levels automatically reduces. The recent trend of disinclination ofsuccessful members of the Bar to accept judgeship is a serious matter which can

no longer be ignored. Irnprovement of the conditions of service ofjudges at everylevel is necessary so that the deservirlg members df the Bar with a sense ofprofessionalism do not find it very unlucrative to become judges.

ludiciary and Judicial Reforms

It carurot be seriously doubted that for quite sometime now, the best talentin the legal profession is not available for the appointment of judges. Theproblem is more acute in the subordinate judiciary where selection has to bemade only from the residue after the brighter persons have chosen otherprofessions and those in the Bar prefer not to leave it. The quality of justiceadministered ultimately depends on the quality of personnel manning thecourts. As the significance of the justice delivery system is paramount in a

democracy, it is essential to ensure that its personnel are at least as qualifiedand competent as that of any other branch. Apart from this being the needbecause of the nature of its function, it is also necessary for retaining credibilityof the system in the public mind. Urgent steps are, therefore, needed to ensureappointments from the best available material and enforcement ofaccountability by methods in keeping with the dignity of the office.

The neeci is to improve the quality of personnel at every level. This can beachieved by making the office at least as prestigious as the best in any othervocation. The specific areas needing attention relate to selection/appointment,conditions of service, independence, including accountability in the judiciary.In this connectiory the corutihrtion of an All-India Judicial Service (AIIS) Iike theIAS etc. is necessary to attract some of the best talent at the threshold. In duecourse this would be a significant source of supply for the constitution of thehigher Judicial Service. With conditions of service at par with IAS, more youngtalent would be attracted. Recruitment from AIJS & the Bar to constifute a

subordinate judiciary will provide a better base for recruitment to the HighCourt and then the Supreme Court. It must be remembered that the People areaffected most by the working in the subordinate judiciary and if the quality theredeteriorates, public faith shakes and the workload of the higher courtsincreases. It has a direct impact on the work in the higher courts where also thequality suffers because of the greater workload.

A database containing profiles of all judges to provide an objective basisfor selection from amongst them is needed. A National Judicial Commissioryrepresenting all wings, headed by the Vice President/ Prime Minister/ChiefJustice of India to make the selections/ appointments to the Supreme Court andthe High Courts, transfer of High Court judges and their removal whennecessary is being debated. However, the quality of the persons who constituteit and the need for adjudication of the alleged misconduct or misdemeanour bythe judiciary to preserve its independence and to prevent misuse require to beseriously thought of.

Judicial Accountability

In respect of the judiciary there is yet another area needing review. Thispertains to the mode of enforcement of judicial accountability of the higherjudiciary for which the only existing procedure for the removal of a judge has

been found wanting. The sole instance of an attempt to remove a Supreme Courtjudge did not work in spite of a finding of guilt recorded by the judges' Tribunalconstituted under the Judges Enquiry AcL, 1968, enacted by Parliament underarticle 124 of the Constitution. It cannot be disputed that in a democratic


republic wherein political sovereignty ve$ts in the people and equality is a corevalue, there cannot be any class of persons who are not accountable to thepeople, or are above the law. Moreover, jddicial accountability is only a facet ofthe independence of the judiciary and not inconsistent with it. Judicialaccountability also ensures the immunity of judges from intemal infirmitieswith total independence. Judicial accountability again is in consonance withthe constitutional scheme because of the enactment of article 235 in the originalConstitution which empowers the High Court to exercise 'control' over thesubordinate judiciary.

Everyone who pays income tax, makes a declaration and discloses theassets to the Income Tax Department. V/hy should there not be any declarationof assets by everyone of the judges. Objectlon to it is something which is difficultto understand. Many people say they have taken an oath of office. If oath ofoffice were enough why is it that many others who take the oath of office aremade accountable under the laws while some are not. Strangely enough adistrict judge up to the time he is a district judge is governed by certain servicerules and he has to make a declaration of his assets every year but the momenthe becomes a High Court judge he is relieved of that requirement. lndependenceof the judiciary is equally essential for judicial officers and judges at every levelright from a munsif to the Chief Justice of trndia. If declaration of assets and somemethod of controlling an aberration over subordinate judges is provided in theConstitution in article 235 and that is not consistent with independence ofjudiciary why should then a procedure cqnsistent with the dignity of superiorjudges for enforcement of judicial accountability be unacceptable? Now it is timethat this type of debate gathers momentum because there should be no areawhich should be immune from accountability because ultimately suchimmunity would be anti-democratic.

A method for enforcement of accourttability on the lines already acceptedby the Supreme Court on 7 May, 1997, Ior High Court and Supreme Cturtjudggs, should be adopted to the independence of the judiciary as envisaged inthe Constitution.

Right to Speedy Justice'Justice delayed is justice denied' is a well-known adage. It is not a mere

cliche but the general impression of the current state of the lndian judicialsystem. This was the ground taken in a U.S. court to have the Bhopal case triedthere and is often used to oppose extradition to India of those wanted to facetrial here. In international trade there has been reluctance bordering onopposition to India as the forum for arbitration of disputes, for this reason.

Speedy justice is not merely an ingredient of the 'right to life with dignity,guaranteed in article 21 of the Constitution of India but is also related to,accessto justice', a basic right of every individual and 'equal justice, promised as afundamental principle of governance in article 39A of the Constitution. Thelaw's delays which have come to be identified with the Indian iudicial systemcall for urgent effective remedies to retain public confidence. Unleis thesituation is remedied soory people will lose faith in the system and resort more

lutliciary and ludicial Reforms 49

to extra legal remedies, a trend which has already begun in some areas. Thistendency has grown considerably in rent disputes in big cities where there isgreater par.rcity of accommodation and in money suits. The tendency of growingarbitrariness in public authorities is also promoted by the perception that theaggrieved person is more likely to submit to injustice rather than suffer thetravails of the slow justice delivery system. Corruption is the bane of the cotntryand the deterrent effect of a quick judicial system is no longer available as aneffective check to curb that menace. Recourse to extra-legal remedies wouldspread soon to other areas which would be a bane of the rule of law. Thereby the

democratic form of governance would receive a setback. It is, therefore,necessary that everyone addresses himself to this important issue and suitableremedies are devised at the earliest with the commitment for faithfulimplementation.

Notwithstanding the interpretation of article 21 to include speedy justice

as a part of the guarantee thereirl it remains confined, as yet, only to the theorywith its translation into rea-lity, a future hope. The mere fact that delay in the

decision of matters in the court has contributed to the evolution of the iuristicprinciple that inordinate delay in conclusion of the criminal trial is a sufficientground to quash the trial, is a matter of serious concem.

A co-ordinated approach to the criminal justice system is really the need ofthe hour. It is the need of all times and even when things are better, forpreventive action; to ensure that the implementation of rule of Law is properand thereby a functional democracy not merely survives, but has a vibrantfunctioning. Merely construing article 21, to include, right to speedy justice isnot the end of the matter. This rlght has been found in the context of the person

who is being tried. This is merely an individual right, there is a higher right inthe people, the higher purpose to be served which must be treated as included inarticle 21. The expeditious trial has a public interest for the purpose ofacquitting a man if he is not found to be guilty and for punishing him if he isfound to be guilty. It serves a higher constitutional purpose which is in the

public interest.

An expeditious tdal takes care of both kinds of rights, the individual rightsof the criminal or the offender and public interest. Pubiic memory very often on

certain matters is short. When the trial commences there may be euphoria, but ifit drags ory people are bound to lose interest in it. By lapse of time, the interest ofthe witnesses also may slacken, some of them may also not be available and the

net result is that a fair trial is not possible because the evidence availableagainst a man, even if he is guilty, may not remain available. Ultimately aperson whom a society believes and knows is an offender who has committed a

crime, is not punished. This is not conducive to the system of administration ofjustice. It also does not have the required deterrent effect on persons who are likeminded. So, it further weakens the prevention measures' In an expeditious trial,the person who is really guitty is punished. The message goes to the entiresociety and has a deterrent effect. The credibility of the judicial process which is

very essential is maintained. On the other hand, if the person is not found

50 The Citizen and ltrdicial Reforms

guilty, he is acquitted, and is not exposed to that ignominy for a duration longerthan is necessary. This requires a co-ordinated approach by all agencies whichare involved in the trial.

Delays are dishrrbing in the trial oi even civil matters but in criminal trials,the adverse effect is greater because a cfime is the concem of society as a wholeand not merely of private parties as in the case of civil litigation. Delay in thetrial of a civil matter adversely affects the right of the party which ultimatelysucceeds and it may not be a matter of any consequence to the others. However,in a criminal trial, it is in the society's irlterest that the trial concludes early andif the accused is not guiity, an early conclusion is necessary to reduce the ordealof the trial and vindicate the accusedas honour as soon as possible. Speedycriminal trial is, therefore, necessary in the interest of both the accused and thesociety. Delay frustrates this obiective and is detrimental to the interest ofeveryone. Delay is the enemy of justice. The object of punishing the guilty at theearliest also has a chastening effect on others. Delay in the trial frustrates thisobjective even where the prosecution is justified because of the waning interestof not merely society but also of the witnesses with the passage of time whichultimately dilutes the prosecution evidence and facilitates the acquittal of theguilty. It is not uncommon that the usual delay in the conclusion of a trialreduces the fear and subconsciouslv prOmotes crime because of the fair chanceof avoiding punishment.

Frivolous Litigation

One of the direct consequences of delay in the dispensation of justice isalso the increase of frivolous litigation" Experience has shown that wheneverthe dispensation of justice is quick, lhe inflow of frivolous litigation getsarrested because the expense involved in frivolous litigation is not productive.On the contrary the law's delays promote frivolous litigation and it is quite oftenused as a means of harassment of the opposite party to compel him to succumbto some unreasonable and unjust demand. The net result of all theseconsequences is the erosion of the people's faith in the judicial system andsubversion of the rule of law. This is a brief purview of the working of the Indianjudicial system, particularly in the subordinate courts and now for sometimeeven in the High Courts. Statistics are urnecessary because the general pictureis so eloquent that reference to figures ig meaningless. Figures have value onlyfor the record and to assess the magnifude of the task.

Concocted Cases

Of late, we find a very disturbing kind of criminal cases, that is, offencescommitted in relation to narcotics and psychotropic drugs. The experience isthat quite a large number of cases which are put up mainly for statisticalpurposes/ are really false cases. It is not unusual to find a commorlstory. Sometime back I found that in one particular state the standard story in so manycases was that a woman was found walking with a bag on her heid. When shlwas stopped, and the bag was opened, what was found was that she wascarrying charas leaves. It is too much of a coincidence that so many women oneafter the other continued to follow the same pattern of crime. Statistically it may

Judiciary and Judicial Reforms 51

be al1 right, there are so many more cases. These cases are bound to end inacquittal. This is an area which requires to be seen and examined by seniorpolice officers to ensure that proper personnel are entmsted with the detection,investigation and prosecution of these cases.

Cases relating to gender justice are throwing up a very disturbing trend.There are frequently serious complaints of harassment by the police force itselfwhich is supposed to be the protector. That is how the image suffers in a bigway. Experience shows many of these cases to be false. Such cases leave a verydishrrbing thought in the mind. They do not merely erode the credibility of thejudicial process, but also harass people. This also has an impact on the arrearsin court and delays.

Remedies to Reduce the Laws Delays

The meaning and content of articles 14 and 21 have been expanded byiudicial construction to promote the constitutional purpose. Article 14 has beenconstrued to cover State activity, including the contrachral sphere. It has beenheld, that non-consideration of a legitirnate expectation, may render the decisionarbitrary, unless supported by the consideration of public interest. Similarly, therequirement of procedural faimess in permissible deprivation of life andpersonal liberty has been read into article 21 and the right therein has been heldto be, the right to live with human dignity. The right io speedy trial has been

. held to be an essential ingredieni of just and fair procedure guaranteed byarticle 21.

The right to approach the Supreme Court of India under article 32 forenforcement of 'Fundamental Rights' was described by Dr. Ambedkar as thesoul of the Constitution. It has been held by the Supreme Court of krdia that theremedy under article 32 in the Supreme Court and the corresponding article 226

in the High Courts, is a remedy in public law, for enforcement of thefundamental rights, distinct from, and in addition to, the other private lawremedies available on the same cause of action, apart from liability forpunishment under criminal law of the individual violators of those rights forthe resulting offences; and, that the doctrine of sovereign immunity available as

a likely defence under private law, is inapplicable to the public law remedy,based on strict liability for enforcement of fundamental rights. The expansivehorizon of judicial review, limiting the operation of the 'political questiondoctrine' within strict political thicket, with judicial review forming a part of thebasic tenet of rule of law, has its own impact on the mind of the people of India.

Proper court management by adopting methods of advanced technology isnow in vogue. Computerisation has already shown positive results in theSupreme Court and the facility is being extended in a phased mannerthroughout the country. Clubbing of like cases and listing them together is aregular feature. Streamlining the existing legal process to reduce case-liIe is aserious method already adopted in the courts. A fixed time-frame for hearing ofcases and adherence to it is also found helpful. Greater emphasis on pre-trialprocedure provision to reduce the number of cases for trial is also desirable.


The setting up of the National Judicial Academy for pre-service and in-service training of judicial officers is a step in this direction. A proper scheme forcontinuing legal education of members of the Bar is under contemplation.

ln addition to the above, emphasis has to be laid on certain lastingremedies to help at the base level. Improvement of legal education to have bettertrained lawyers and to ensure a minimum level of quality at the entry point ofthe Bar is already on the anvil. Necessary steps in that direction are being taken.Curbing frivolous litigation and strictness to ensure admission of only propercases in courts is a duty which has to be performed jointly by the Bench and theBar with great vigilance. This will ensure utilisation of the court's time only forthose cases which need to come to the court.

These are some of the remedies to improve the justice delivery system andto make the rule of law effective and meaningful as envisaged in theConstitution. Dedicated effort by every member of the legal fratemity responsiblefor proper administration of justiceis a prime need and the surest remedial stepto reduce Law's Delays. This is necessary to retain the abiding faith of thepeople in the working of the legal system and to prevent them from resorting toextra judicial remedies for redressal gf grievances and resolution of .their

disputes which results in erosion of the Rule of Law. In the ultimate analysis itis the quality of men who work the\ legal system, and their devotion to thl taskwhich will determine the end result. Every person has to undertake the task inthe spirit of a winner.

There can be no doubt that several improvements in the system arenecessary but our emphasis should be firore on the working of the system andnot merely its mechanism. Irrespective of the mechanism, unless thecommitment and efficiency of those who work the mechanism improves, a bettermechanism alone will not help solve the problem. The need, therefore, is nodoubt to improve the mechanism wherever necessary but more than that toimprove the work culture at several levels so that optimum benefit is obtained.

Supreme Court Experience

The recent experience during the nineties (1990's) of the working of theSupreme Court is eloquent proof of the correctness of this belief. At thebegrnning of the nineties, the arrears in the Supreme Court exceeded 1,20,000cases. There has been considerable reduction in the backlog with the aid ofbetter court management techniques and advanced technology. In the SupremeCourt, the total pendency as on l January, 7992 was 1,04,936 and on 1 January,1993 it was 97,536 according to the hyphenated numbers in vogue till then. Thiscame down to 58,794 as on 1 January,1994 with the introduction of a system ofstatistics according to actual cases. Computerisation was also introduced alongwith clubbing of similar cases, involving the same point for decision so that theycould be heard together and the comdron point disposed of by a commonjudgment. Thereafter, variation on facls in different cases merely requiredapplication of the settled law on the porrrt which reduced the time of hearingand also the possibility of any confiichirg decision. A large number of casescould be disposed of together in this manner which also resulted in certainty of

ludiciary and lud.icial Reforms

the law for application not only by the supreme court itself but thereafter incases on the same point in the High Courts, and in the subordinate courts.Continuance of the same bench without frequent changes therein with a timeframe for arguments of counsel also enabled reduction in the time taken forhearing of cases and introduced greater certainty. The figure of pendency wasfurther reduced to 54,993 as on 1 Novemb er, 1994 as a result of improvedcourtrnanagement techniques. As on 1 january, 1995 it was reduced further to 52,950and on 1 January, 1996 it was 37,168.The figure of pendency as on 6 September,7996 was only 26,673 out of which admission matters were 8,569 and regularmatters 18,104. This reduction had been made in spite of the total institutions in1994 being 42,046 and in 1995 being 51,443 which is nearly twice the averageanmrai institutions in the preceding years. Full utilisation of the court workinghours and the commitment to reduce the arrears with the existing strength o1judges facilitated by cooperation of the Bar and the existing infrashuctureexcept for the computeiisation in the Registry, brought down the pendency to atotal of approximately 19,000 on 1.1.1998. That progress continues io bemaintained. The fact that the strength of judges in the court was not always fuIl,did not impede the progress. It is significant that the annual filing in theSupreme Court during these years averaged approximately 35,000 going up to49,000 at one time which indicates that the pendency now is much less than oneyear's filing. If this could be done in the Supreme Court, there is no reason whyit cannot be done in the High Courts and the subordinate courts. No one canreasonably claim that quality of work in any other court is as high as that in theSupreme Court to require greater time for hearing and disposal of cases.

If a similar beneficial result has not been achieved in anv other court, theblame cannot be on the process. The fault perhaps lies in its exercise. properfunctioning of the PIL cell in the court and listing only of genuine casesaccording to directions of the chief justice of the court is the need to rationaliseand channelise the process. Streamlining the procedure to ensure properfunctioning is imperative.

High Courts

The High Courts are pivotal to the Indian judicial system. It is the HighCourt which is conferred with the power of control over the sub-judiciary byarticle 235 of the Constitution. The clear indication is that the High Courts havenot only to manage their own affairs but have also to guide and supervise thesubordinate courts in the performance of their duty. There is no method moreeffective for exercising control than self-practice. The first remedy of the existingsifuation is for the High Courts to follow the example of the Supreme Court andtransmit that message to the subordinate courts for sincere emulation. The HighCourts have, therefore, to play a very significant role in this direction.

A uniform method of court management in all courts at different levelsthroughout the country is necessary. Docket management in the Supreme Courtwhich has achieved salutary results should be an incentive to the courts below.Unless the High Courts function properly and effectively, they cannot dischargeeffectively their power of control over subordinate courts. There is need to

54 The Citizen and ludicial Refotms

streamline the functioning of High Courts and to coitrol the docket explosion'Mere addition in the number of judges is not the complete answer' It is time toensure that the available strength of the judges delivers what is expected ofthem. In short, High Courts should set an example to subordinate courts, ofwhat the expectation is. Constitution of joint committees of judges and lawyersfor better court management through active cooperation of the Bar may achievebetter results. The mechanism should notibe left to the ad ftoc measures adoptedin different courts, but should be part of art organised programme.

Proper court management with the rlse of advanced technology and activeparticipation of the Bar with its fulI involvement would be an effective steptowards reducing Law's Delays. The judges must become role models and lead

by example.

Full utilisation of court working hours by everyone and absence on aworking day only for unavoidable reasons must be guiding rule. Disciplinerequires that vacations be utilised for clearing pending work and that everycourt ensures that there is no case pendurg for delivery of judgment when the

court reopens. There is need to empower the Chief Justice,/Principle Iudge of the

court to enforce this discipline. Increase in working hours and reduction ofholidavs / vacations is needed.

Casual leave taken according to conventiory without any provision in therules, should not be availed of for leaving the station or attending to a pre-planned activity, and should be confined only to unavoidable and urgent localneeds. Authority in the hands of the Chief Justice to enforce the discipline iscalled for.

There are the steps directly related to some of the causes of Law's Delays,and are, therefore, matters of public concem which cannot be left to the sweetwill of individuals thus reducing the court working hours considepably.

There are increasing instances of delayed judgments, delivered long afterconclusion of the hearing. There are instances of some judges not deliveringjudgment till retirement, after keeping it reserved for an unduly long period.Such cases require rehearing before another bench resulting in greater delaysand further costs. The sifuation has not improved, in spite of resolutions madein the Chief Justices' Conference. Some enforceable rule to tackle this sihration is

called for.

Most of the above problems were meant to be kept in check in the superiorcourts by self-regulation and intemal discipline. That method does not appearto be effective any more. The chief justlces who have no direct authority toenforce control are helpless as the conventions are no longer being respected. Itis, therefore, necessary to think of dewising suitable methods for enforcing muchneeded discipline, in keeping with the dignity of the high office of the suPeriorjudges. After all, any new provision made to achieve the desired result willoperate only upon someone who chooses to ignore the salutary conventions anddiscipline implicit in the high office. Such a move, therefore, need not trouble thejudges as a class, most of whom practice self-discipline.

ludiciary and ludicial Reforms 55

, A number of simple and easily implementable steps can go a long way inreducing the current backlog of pending criminal cases and facilitate therealisation of the constitutional right to speedy and fair trial.

It has been the experience of h.rdia that around 30-40 per cent of allpending cases could be disposed of with a little initiative. These iases constitutewhat may be called "artificial arrears". In most such cases, the need andcompulsion for a fuil trial and conviction may have been exhausted for variousreasons. Moreover, in many such cases the accused may have already sufferedenough punishment as an undertrial prisoner; in fact, sometimes morepunishment than what would have been due if he were convicted.

Experienced lawyers can be appointed on short-term engagements to lookinto long pending cases concerning petty or minor offences and takeappropriate steps. Such public service by senior lawyers, even voluntary wouldbe readily offered and diligently carried out.

For statisticai purposes, every case has the same value irrespective of itsimportance. Cases relating to petty offences and those which are compoundablehave the same numerical value. There is dire need of early disposal of thesecases. Methods which enable the performance of this exercise are long overdue.Such cases couid be classified, separated and entrusted for disposal to thespecial magistrates appointed only for this purpose. Some experienced membersof the Bar could be invited for a fixed term and a specified number of cases couldbe allotted to them for disposal within a stipulaled time. Thrs wouid free theregular courts to deal with more serious matters which require greater attention.This would also reduce the existing workload on the current strength of judges.Encouraging the compounding of offences permissible in law wouid also helpwhere the offence is more private in nature. Award of compensation to thevictim may be treated as sufficient punishment to the offender in many cases.Decriminalizing of minor offences shouid also be considered.

A classification of cases based on their nature and separation of theostensible frivolous iitigation would itself reduce the pendency by nearly half.In addition to members of the Bar, retired judges could also be invited to disposeof long pending and petty matters so that regular courts are left free to deal withfresh cases.

The time has come when archaic laws and those which have ceased to beeither effective or to service the purpose for which they were enacted arescrapped. This will automatically reduce the number of cases relating to thoselaws.

Procedural laws need to be looked at closely to simplify the procedureretaining essentials of natural justice.

The Alternative Dispute Resolution (ADR) mechanism needs to bestrengthened. The experiment of Lok Adalat to decide certain categories of caseshas been very useful.

Petty cases which do not involve adjudication of law points have beendisposed of in Lok Adalaf; accident claim cases and land acquisition cases have


also been disposed of in large numbers tn l-ok Adalats; matrimonial causes and

other family disputes in which conciliation is possible have been settled in Lok

Adalats; thi successful experimint of Ink Adalats has now been given stahltolyform.

Conciliation, mediation and arbihation also needs to be encouraged' Strict

enforcement of pre-trial procedure in CPC would reduce the time of trial and

extra work at laier sta$es. The cumulative effect of all such methods would be

considerable.

A number of concrete measures could be introduced such as:

. Amendment of the Criminal Procedure Code to facilitate appointment of'special' or 'honorary' magistrates on a short-term basis for trying pettycriminal matters which clog up the cfiminal justice system;

o Introduction of a system of 'plea bargaining' in certain cases;

e Compensation for victims of crirnes;

o Decriminalization of some offertrces;

o Fostering more and effective collaboration beLween NGOs andgovernmental agencies and promoting the work of NGOs by providingmeans, assistance and infrastructure;

o Introduction of new techniques for better case-management, includingincreased use of computer and other information technology devices;

. Stricter regime for allowing remand;

. Protection of witnesses;

. A direction for completion of ctiminal cases in six months.

Judicial Activism and its Impact on the Criminal Justice System

The expression justice delivery system, embraces within its fold not merelythe judges of the court, but also everyone who is involved in the process ofimplementation of the law. The role of the judiciary, of course, is primarily toensure the most effective and proper implementation of rule of law. This process

or this activity of the judiciary is merelya facet of judicial review. Judicial reviewwas first conceived, in the United States by Chief Justice Marshall of the U.S.

Supreme Court in 1803 in Marbury v. Madison, but really the seed of that was

sown two centuries earlier in 1608 by Lord Coke tn Boilham's case' The corlcept

was introduced at that time and it started growing while some treated it as

sacrilege. There was a similar or, may be, a greater hue and cry than what wehear today about the judiciary's role. Judicial review which was supposed to be

something beyond the scope of judicial functions, has come to be accepted as an

essential function of the judiciary, so much so that it is now treated as a basicfeature - a part of the basic structure of our Constitution.

"Judicial activism" is a facet of judicial review' If implementation of rule oflaw which is the bedrock of democracy, is the basic responsibility of the

judiciary, then it is the obligation of the judiciary to see that every aspect whichis essential for proper irnplementation of rule of law ought to be taken care of'

Judiciary and ludicial Reforms

The Constitution itself approves it. The obligation of the judiciary is to ensurethat not only the judiciary does its work, but also that every agency orinstrumentality which is involved in the implementation of law, functionseffectively. Aberrations must be corrected. If it is not functioning, then it must bemade to function. Judicial activism must necessarily meary "the active processof implementation of the rule of law, essential for the preservation of afunctional democracy, not merely a tottering democracy, but a functionaldemocracy". Since the administration of justice is entrusted by the Constitutionto the judiciary it is the primary obligation of the judiciary to ensure that thishappens. To put it differently, it must mean an active justice delivery system, i.e.,active functioning of the process of law, to its logical conclusion - the processthroughout being the obligation of the judiciary to manage. This alone cansatisfy the requirement of the rule of law.

Now, if this is judicial activism, then it is not difficult to see that everyagency, which is involved in the proper functioning of the criminal justicesystem, is to be involved; in what is called judicial activism. Every case whichcomes uirder the criminal justice system, has an essential element of publicinterest, because crimes are against society and the state. This is so,distinguished from private wrongs which may be involved in civil limitation.Even in some constitutional matters, the infringement may be of a fundamentalright only of an individual, but when there is a violatiory or infringement of thefundamental rights of a section of the people or a large section of the people orthe nation as a whoie, the element of public interest involved therein is fargreater and, therefore, the significance is naturally bound to be far greater. If thatis the significance, then the need to stop it and the obligation of the judiciary toensure that the proper thing happens is even greater. It is for this requirementthat the judiciary riltimately has been given very wide powers by theConstitution itself.

The obligation of the judiciary for the implementation of the rule of lawbegins from the stage of detection of the crime itself. The next stage isinvestigation, and then the prosecution of the offender and thereafter onlycomes the court when the trial takes places. Therefore, the period from the timeof detection of crime till conclusion of the trial, is covered within the ambit ofimplementation of rule of law. Every agency which is involved at any stage ofthis process must, therefore, partake its responsibility of performing actively soas to provide active implementation of the Rule of Law, without which therecannot be a functioning democracy. At the initial stage, therefore, at the verythreshold comes in the police force. The role of the subordinate judiciary comesin much later only when the investigation is complete and the case is brought tothe court. Unless the case comes to the court, the judiciary does not come into thepicture at all. If in the performance of its task of detection, investigation andprosecution of the offender, the agency malfunctions or fails to function, then, irthere no remedy under the Constitution and the scheme of the law? Thejudiciary cannot say that they are helpless and there is nothing they can do till acase is actually brought before them. This is not a proper and ftlll appreciationof the role of the judiciary. As the obligation for implementation of the Rule of

58 The Citizen and ludicinl Reforms

Law is essentially that of the judiciary, the judiciary cannot remain a silentspectator, particularly when the concept of locus standi has been widened andliberalised. If there is a gross violatiory or infringement of fundamental rights ofa section of the people or violation or is so great, that it affects the

order which is just in the cause. The obligation of the judiciary is wide enoughunder article 32 read with article'l-42 of the Constitution to ensure full, effectiveand proper implementation of the Rule of Law in every sphere so as to ensurepreservation of a functional democracy, in greater public interest. It is notoptional, but obligatory because article 32 itself is a fundamental right.Therefore, the doubting Thomases who dntertain the thought that the judiciaryis overstepping its boundaries, may bhush up their understanding of theconstitutional scheme by which the judiciary is empowered to make the erringagencies or non-functioning agencies function for the purpose of properimplementation of the rule of law.

Ambit of Mandamus

To illustrate, if there is a crime, the magnitude of which is such that itaffects a large section of the people and often not merely a large section of thepeople, but the nation as a whole which is going to ultirnately adversely affectthe Indian polity itself, then is the judiciary powerless to correct this aberrationand make that agency work, whose duty is to perform this function? The

iudiciary can give directions of any type to suit the situation by virtue of article .

142 of the Constitution - directions in the nature of mandamus or any othersuiiable direction which is necessary to tnake the agency work well. After all,mandnmus is a direction to a person or agency to perform its legal obligation. Apublic officer who holds a public office or has a public duty to perform, and failsto perform his duty, can be compelled to do so by issuance of a mandamus.

Let us assume there is commission of a crime of some magnitude and thereis at the very first step a default in the detection of the cdme or even if it has beendetected, then in the investigation thereof and in its logical prosecution. If oninvestigation, adequate material has been found to justify prosecution, and ifthat is not done by that agency, then by a mandamus the judiciary would compelthat agency to perform this task and take it to its iogical conciusiory so that if ona proper investigation a case is made ouU it must be put up before the court andthen commences that part of the judiciall process in court which has to punishthe accused if he is found guilty and acquit him, if sufficient legal evidence isnot found to establish the charge. The presumption of innocence is continuing,but this process has to be completed, whenever there is reasonable suspicion.Ordinarily, in a proceeding for mandannus, the direction is issued, and thedirection is to compel performance of the duty. That is the ordinary nature ofmandamus. But if the situation arises, as is the public perception in recent times,

entire nation - the whole of the Indian polity, then it can be said that everycitizen of the country is not involved in it and he does not have the necessarylocus to bring the matter to the court. Access to justice is a guaranteedfundamental right under article 32 of the Constitution and the Supreme Court isfurther emr:owered bv the framers of the Consti tution bv article 142 to make anv

ludiciary and Judicial Reforms

then even during the course of performance of this function, the judiciary mayhave to monitor without entering into the merits of the case so that the on-goingprocess is performed objectively, honestly and fairly.

The judiciary is empowered to ensure without going into the merits thatthe performance of the task of investigating the crime is done'honestly andfairly. To illustrate, it is something like combining in one proceeding, theprocess of trial of a suit and execution of the decree which may be passed at theend of the trial. It is not that the law merely requires adjudication and passing ofa decree and then forgetting all about it. If the decree is not executed, then thenext proceeding which is called the execution proceeding is started to ensurethat the decree is satisfied and the court's obligation remains till it sees asuccessful execution of the decree. Why can't these two proceedings becombined? Instead of two proceedings we may have one, to ensure properfunctioning and, therefore, ultimately it is a co-ordinated approach of theInvestigating Agency, the Prosecuting Agency and the Trying Agency, whichbrings about the end result. One must bear in mind that one of the basic tenets ofour legal system is the benefit of the presumption of innocence of the accused tillfound guilly at the end of a fair trial on legal evidbnce. So, this entire process,part of it directly and the rest of it indirectly, is within the domain of the justicedelivery system and in it are included, not merely the judges who sit in thecourt, but everyone involved in the process till the matter comes to the court andeven thereafter with sentencing and heatment of the convicted offender. All thisis part of the integrated process and in the end after conviction, some of therights available to a common man are taken away, but that does not mean heceases to be a human being. Even a convict has basic human rights. Only thoserights which need to be restricted because of his incarceration are affected, butthe remaining are not curtailed by any process of law.

Prevention of Crime

Every individual constitutes a part of the human resources of a nation. Aperson may have committed a crime for various reasons, but then he should notbe written off. The effort to correct him should be on, so that he can continue tobe a useful member of society. Therefore, he needs to be rehabilitated, so that hecan contribute to the augmentatiory growth of the national wealth in the form ofhuman resources. All this ultimately, is a part of the process of implementationof the rule of law. This last part has significance in the area of prevention ofcrime. Ultimately, the maintenance of law and order, the state of the society,depends on the kind of law and order which prevails in the society. A reformedcriminal even after his conviction is'orie criminal less in the society which helpsin prevention of crime. Prevention is significant not only in the area of medicine.The old adage, "Prevention is better than cure" is equally applicable in crimecontrol in society. If we reduce the number of criminals, it has a ripple effect in alarge area. There is one person less to guard thereafter, one person more tocontribute to society. Let us hope some day when the law and order sihrationimproves, a large police force would not be required for security arrangement. Ifsuch a force is not required in that strength to provide securibl to the protected


persons, then they would be available mpre for doing that for which they areprimarily meant. We were used to see police ordinarily identify bad charactersin a locality and keep an eye on them. At that point of time individuals did notneed to be protected. The bad characters or the criminal elements had to beidentified and watched; that itself was enough. Now it is the other way around.It may not be possibie to keep an eye or identify every person of that category. So

the shift is to identify people who in people's perception, or in the perception ofthe state must be protected at all cost and thus to protect them. One hopes that aday will come, when every person who iS supposed to be needing protection isable to walk freely and policemen are left to do the iob they are primary meant to

The last part of the criminal justice system, which deals with the heatment,rehabilitation and reformation of the offender is closely connected with thisaspect, so that what is needed is an integrated effort, after the formulation of anintegrated policy, covering every facet which yields results.

The criminal justice system is not donfined merely to the apprehension,trial and punishment of the offender but also covers the area of prevention ofcrime to the extent possible. The three main instruments of the criminal justiceadministration are the police, the judiciary, and the prison and othercorrectional institutions.

As for specifics, the three main areas of focus in terms of penal reform inthe region ought to be:

. Independence of the police.

o Reduction of the backlog of pendirrg cases.

o Reform of prison management and conditions.

In the U.K. the power of the judiciary is not as great as it is in our.constitutional scheme. In the U.K. Parliament is supreme but in our country theConstitution is supreme. Here the ultimate sovereignty vests in the people. LordDenning, while dealing with the powers of the Commissioner of Police inrespect of investigation into the crime and putting up an offender for trial,indicated \ow much insulation is required for a police officer' from anyextraneous influence including the influence of the person who may be thedepartmental head in the form of even a minister and pointed out, "I have no.hesitation, however, in holding that like every Constable is the Secretary of theState, I hold it to be the duty of the Commissioner of Police as it is of every ChiefConstable to enforce the law of the land; He must take steps so as to post hismen that crimes may be detected and that the honest citizens may go about theiraffairs in peace. He must decide whether or not suspected persons are to beprosecuted and if need be, bring the prosecution or see that it is brought, but inall these things he is not the servant of any one, save of law itself. No Minister ofthe Crown can tell him that he must not keep observatiOn on this place or that,or that he must, or must not prosecute this man or that mary nor can any policeauthority tell him so... A question may be raised as to the machinery by whichhe could be compelled to do his duty. On principle, it seems to me that once the

Irrdiciary and ludicial Reforms 61

duty exists, there should be a means of enforcing it. This duty can be enforced Ithink either by action at the suit of the Attorney General or by the prerogativeorder of the mandamus". These are not new thoughts. This was the position inEngland. Under our constitutional scheme the requirement cannot be any less

and the authority of the police for the implementation of rule of law can be noless. This is a fair indication of why what the police force does, what the

prosecuting agency does, for detection, investigation and prosecution, is as

much part of the judicial process and, therefore, included within the expression

iudicial activism. Unless there is active discharge of this role by each one of us,not merely the courts, it would be incorrect to say that there is judicial activismin the true sense^

It is incorrect to say that judges are persons who are wholly unconnectedwith everything else. Of course, a degree of aloofness which one stronglyadvocates is required by the judges, for obvious reasons. It is incorrect to thinkthat judges alone matter for the purpose of implementation of the rule of law' Orthat independence is requireil only for judges and not for others. The policeforce plays a complementary role. There can be no reason why a police officer isnot required to be, or is not expected to be as fiercely independent as any one ofthe judges. The need is equal, because ultimateiy if it does not detect the crime,does not investigate it properly, the stage where the judges come in won't arrive.

That is the kind of role of the poiice force. So serious thought is required toexamine, why it is that the image is not matching. Well, there may be faults ofsociety, but then we must identify the area and the causes which contribute to a

different image. In this connection a little closer look at the true role of the police

force may be required. The policemen perform a statutory function and are

governed in all their actions by the provisions of law. According to the Code ofCriminal Procedure, the formation of opinion as to whether or not a person

should be prosecuted, is that of the officers conducting the investigation. Thisprocess is required to be done objectively, fairly and honestly as the conduct ofthe trial itself by the judge. This independence of the investigating officer is also

precedented and judicialiy recognised.

There is need to act with conviction and without further delay upon the

recommendations contained in the Report of Police Reforms Commission,which as long back as 7979 proposed a number of critically needed remedialmeasures, to prevent interference with and misuse of the police by illegal orimproper order, or Pressure from political, executive or other extraneous

sources.

The Supreme Court made an indepth study of this matter in connectionwith the functioning of the,Ceniral Bureau of Investigation and has issued

certain directives to insulate the Central Bureau of Investigation from anypolitical or other extraneous influence. There does not apPear to be any wiliingacceptance of the same. Moreover, recent exPerience has shown that even the

CBI is so used to the existing culture that the insulation provided to it by the

Supreme Curt did not yield practical results. The need, therefore, is not merely toimprove the system but also to improve the work culture of the police force and


its mindset. Attiiudinal change is necessary. The National Human RightsCommission also has made recommendabions in the form of guidelines and theyneed to be observed by ttre police force faithfully.Human Rights and Penal Reforms

The inculcation of human rights and the role of the National HumanRights Commission are other essential components for anv measure of oenalreform. Penal reform cannot be undertaken in isolation irom the norms ofhuman rights. Manv of the intemational human rights instruments have notbeen incorporated into our domestic laws by suitable enactments and this needsto be done without delay. Judiciai pronouncements have incorporated some ofthese international human rights instruments, but instead of such indirectmethods appropriate legislation is the need of the time.

There is a need for Human Rights Commission in every State and Counhyin the region. The Indian experience has already established its importance anipre-eminence in co-ordinating the recognisable and commendable work beingdone by NGOs in areas concerning human rights. The National Human RightiCommission works in conjunction with the existing judicial structures. In cisesof importance the supreme Court frequently makes a reference for investigationto the Commission.

Thus, the National Human Right$ Commission can and does play animportant role by co-ordinaiing and monitoring efforts of both civil and pirblicbodies and agencies. secondly, by facilitating some aspects of the judicial work,the Commission can augment access to jr.istice and offer remedies for violationsof rights.

Finally, in addition to using the existing formal machinery, the NGOsshould be fully involved in penal reform and given govemmental support fortheir work.

There is need to give the NHRC and SHRCs a constitutional statusintegrating the institution in the constitutional scheme. The correlation betweenthem should be as of the judiciary that is, NHRC,s role akin to that of thesupreme Court and of the sHRC as that of the High Courts. NHRC should bethe apex body under the umbrella of wllich should be al] other commissions,such as sHRCs, NMC and NCW etc. The exact mechanism is a matter of detail.It is also necessary to reflect the complimerrtarity between the roles of the NHRCand the judiciary.

Role of Government

The statistics show that there are at present more than 30 million casespending in the Indian courts out of which approximately 20 million are civilcases and 10 million criminal cases. The expenditure on the judiciary in India isonly 0.2 per cent of GNP compared to 4.3 per cent in countries fike niitain whichshows the govemment's apathy towards the administration of justice. The roleof the govemment can be easily assessed from the fact that the government is aparty to most of the criminal cases as also in the large number of civil cases. Thegovernment can, therefore, contribute greatly to the solution of the problem. It is

ludiciary and Judicial Reforms 63

common experience that a large number of cases with no merit are taken to thehigher courts in appeal or revision by the govemment and this is donemechanically without proper scrutiny whenever the govemment suffers anadverse decision.

It is also a matter of common experience that the machinery of thegovernment for the conduct of these cases at every level is often not the bestwhich it can have but is below average. Appointment of lawyers to representgovemment is based quite often on extraneous or political considerations andnot on merit. The phenomenon is all pervasive and repeated comments by thecourts have had no impact on those who are responsible for making theseappolntmen ts.

In short, there is no accountability for anyone in government whofacilitates the continuance of this situation. This area also requires seriousattention. Closer scrutiny made objectively of the performance of the peopleresponsible for conduct of the cases on behalf of govemment with some methodof enforcing the accountability of those responsible for lapses can no longer bedeferred.

Role of the Bar

The Bar also has a significant role to play in the judicial system. Equalcommitment of every member of the Bar is necessary. The first requirement is toensure that every member of the Bar is well equipped to discharge his dutieseffectively. The requirement, therefore, is of proper legal educaLion so that entryto the Bar is only of those who have the requisite academic background forpractice. The necessary-practical training on entry into the Bar to apprise themof the practical aspects and train them to function in the courts is necessary. Anintegrated programme of legal education of this kind will automaticallyeliminate casual entrance into the Bar and confine its membership to thoseserious in the practice of the legal profession. No other profession permits acasual entry without the minimum required expertise. This is a duty owed alsoto the litigants who must be assured of a minimum level of legal expertise in themembers of the Bar from amongst whom they choose their co"unsel. A right stepin this direction has been taken by the Bar Council of India. There is asimultaneous need for closing down law colleges which do not fulfil thenecessary standards for imparting desired level of legal education. This actionitself would ensure greater cohesion and credibility of the Bar as a whole.

Effective measures by the Bar Council to inculcate ethical standards in thepractice of the profession by each member and continuing legal education in theform of refresher courses would help members of the Bar to update theirknowledge and keep abreast of the advancement in law. Greaterprofessionalism practised by the members of the Bar would automatically bringin greater order in the functioning of the Bar and thereby of the courts. This alme.can ensure that each member of the Bar rightly qualifies to be an officer of thecourt with as much responsibility in the administration of justice as the judgehimself.

64 The Citizen nnd Judicial Reforms

The trend of lawyers' strikes resulting in closure of the courts and denialof access to justice to litigants is disturbing. Even assuming the demand oflawyers at a given time to be legitimate, it is necessary to devise some othermode of protest instead of closure of the ctourts. A news item tn The Times of India

dated 20 December, 1994 under the headlng "Court closures take a heavy toll ofcases" gave statistics relating to the subordinate courts of Delhi. The closure ofsubordinate courts in Delhi then for one day out of every four days during the

preceding four years resulted in 10,000 cases being pushed back by at least fourmonths on each day so that the strike frot'n 13-16 December, 1994 resulted in theadjoumment of over 35,000 cases. Withouit making any comment in the matter ofstrikes by lawyers and assuming for the present Purpose that their grievancesmay be legitimate, one can easily visualize the setback in the functioning of thesubordinate courts and the High Court during the strike periods. To say theleast, the adverse impact on the iitigants who suffer for no faults of theirs, isstartling. The result, when the pendency is already considerable, is certainly not .

one which even lawyers would like. But that is the reality.

It is, therefore, time that the Bar addresses itself more seriously to this issueand devises some bettbr means of ventilating its grievances. The Supreme Courtin a public interest litigation has addressed itself to this issue and made certainorders which need serious consideration and compliance by the Bar. Any actionof the Bar which results in denial to the litigants of access to justice and impedesspeedy justice has to be a matter of serious concem to the Bar itself.

A very useful book - Professional Conduct and Adaocacy by K.V.Krishnaswami Aiyer is a collection of lectures delivered to the apprentices-at-law of the Madras Bar Association. It is worthwhile to refer to the Foreword tothe Second Edition (1945) of this book by Sir Maurice Gwyer, former Chief

Justice of India. In the Foreword, Sir Maurice Gwyer after quoting the authorwho said, "Every member of the Bar is a trustee for the honour and prestige ofthe profession as a whole", proceeded to indicate *re utility of that book thus:

" . . .The student or young adaocnte who reads this book wiII learn why that is

so. He zuill also understnnd better than he did before that the law is a great nnd

noble profession, whateier its critics may say and Inw itself a great and noble

science, the king of kings, as the sacred books of this country call it; and he will,I hope, determine thnt neaer by any act or word of his wiII he show himselfunworthy of the great tradition whirh he has inherited and which the author ofthis book puts so plainly and conztirtcingly before him" .

The Bar is the feeder for ttie Bench. To have good judges, it is necessary tohave good lawyers. No judicial system can be truly effective unless the Bar andBench are so constituted. lndicating the tnaits essential in a judge, the AllahabadHigh Court Post-Centenary Silver Jubilee Cgnmemoration Volume at thebegin4ing quotes from the ancient texts ais reminder thus:

"let the king appoint, as members pf the courts of justice, honourable men of

. prooed integrity, who are able to bear the burden of administration of iusticennd who are weII ttersed in the sacred laws, rules of prudence, who are noble

and impartial towards friends or fues" .

ludicinnt and lrdicinl Reforms 05

To my mind, the main requirement of an effective and efficient judicialsystem which can ensure equal justice to all and provide speedy justice is tohave the Bar and Bench composed essentially of such persons. The operators ofthe justice delivery system must be of this kind so that the working of the system

is efficient and most productive.

Access to Justice

The important thing is the public perception that everyone with a

legitimate grievance has equal access to justice, irrespective of the means he has

to ventilate the grievance, and decision making depends on the merit of theclaim and not the means of the litigant. It is equaliy necessary that there shouldbe speedy decision of the cause and frivolous litigation should be controlled.The final decision should be made while it remains a live issue. This alone can

achieve eqrlal justice for all. Procedural laws should be the handmaiden ofsubstantial justice and not pitfalls which can be misused to delay justice. Pre-

trial procedure should be extensive and fully utilised to ensure that a case ishsted for trial only of issues which cannot be settled earlier. To avoidunnecessary delays, cost of adjournment, when essential, should be effectiveand real. Revision of cost strttcture is necessary to make it realistic and to makethe loser pay *re actual cost incurred by the victor.

Legal aid should be dependent on the merit of the claim and not merely onthe inability of the litigant to afford it. Better management of the Legal AidScheme is needed.

Lawyerst fees need to be regulated and the schedule of fees revised to

enabie availability of services of lawyers according to the requirement of the

case. A scheme should be devised to check the mercenary trend in the legalprofession and to enable provision of a lawyer according to the requirement of a

case and not the means of the litigant engaging him. Sorne kind of control of the

corut may be necessary to make the scheme effective and workable. May be,

partial nationalization of legal services is called for.

Conclusion

The legal iraternity has a great responsibility to ensure the properfunctioning of the judicial process to achieve the true object of justice for all. The

legal profession has to be rationalised and channelised to harness the forces forwhich it has a changing role to meet the current societal needs. Judges have aduty to perform which is even more onerotls to keep the judicial ship afloat onan even keel. It must avoid making any ad hoc decision withotrt the foundationof a juristic principle particularly when the decision aPpears to break newground. The judgments must be logical, precise, clear, sober and rendered withrestraint in speech avoiding to say more than what is necessary in the case. Itmust always be remembered that a step taken in a new direction is fraught withthe danger of being a likely step in a wrong direction. In order to be a pathbreaking trend it must be a sure step in the right direction. Any step satisfyingthese requirements and setting a new trend to achieve justice can alone be a newdimension of justice and a true contribution to the growth and development ofIaw meant to achieve the ideal of iustice.


Rampant corruption is something which does not require to be shown.Every one of us knows it, everyone of us 6ees it, every momenf of our life, in someform or the other. The obvious solution is the restoration of values because it isthe degeneration of society which is composed of all of us put together which isat the root of the present dismal scenario. We need something like a renaissanceof values. This alone is the answer beca*se ultimately the worth of a nation isthe sum total of the worth of the individuats comprising it. That is what Johnstuart Mill said long back. our individual worth has deteriorated so much thatit is no wonder the nation has reached an all time low in morality.

Effective measllres for strengthening the working and ethical componentof all branches of the judicial system is necessary. The accountability of personscontributing to law's delays including judges and an effective mechanism forenforcing justice, taking care to prevent its misuse has to be devised. In the finalanalysis, it is the worth and the dedication of the operator of the mechanismwhich will matter and that is an area which needs to be strengthened alongwith improvement of the mechanism wherever necessary.

Some of the effective remedies requiring serious consideration forimplementation appear to be the following;

1. The insulation of the police from extraneous pressures; and ensuring itsindependence like that of the judiciary.

2. Separation of the investigation wing from that of prosecution.

3. Strategies for reducing the huge backlog of criminal cases in courts.

4. Adoption of a system of Honorary/Special Judicial Magistrates.

5. Adoption of a system of plea bargaining as recommended by the LawCommission of India.

6. Adoption of a system of comppnsation for crimes on the analogy ofcrim ina I injuries compensation.

7. A massive decriminalisation of offences so that thev may be dealt withas comparable wrongs.

8. Framing and implementation of appropriate pre-service and in-servicetraining programmes for the judges at all levels.

9. Better case management techniqtres by improving court administrationthrough computerisation.

10. Appointment of experienced lawyers practicing on the criminal side aspart-time or fixed-term judge$ on the pattem of 'Recorders, and'Assistant Recorders' in Englartd and allocating a fixed number ofcases to each of them for disposal.

11. The procedure providing for indicating in the order of remand itself theperiod after which the undertriial is automatically entitled to bail onterms specified by the Supreme Court of India in its decisions.

12. A fresh look at the provisions for selecfion and appointment of judges atall levels including the constirution of an All-India ludicial Service

Judicinry and ludicinl R{orms 67

comparable with the best service in the executive branch to attract thebest available talent.

13. Proper utilisation of full court working hours on each working day byall judges and confining absenteeism only for avoidable reasons. Fixingof time limit for delivery of judgment.

14. Increasing working hours of the courts and reduction in holidays to theextent feasible, keeping in view the nature of judicial work.

15. Simplification of procedure in civil cases and reduction in number ofappeals.

16. Improvement of prison conditions and better machinery for monitoringthereof.

17. The aim should be to have a system which ensures that the trial of everycriminal case should be completed within a maximum period of sixmonths and the maximum period of detention as an undertrial even forthe most heinous offence should not exceed a period of six months.

18. Greater financial grant to the judiciary with requisite financialautonomv is necessary. It may be advisable to fix a tirne frame for everydistrict depending upon its needs and authorise the Chief Justice of theHigh Court to take such steps as deemed fit to liquidate the arrears.

19. Promoting NGOs for victim assistance and service and for theprotection of witness in collaboration with the police system.

20. The Intemational Covenants applicable in the area of Criminal JudicialAdministration may be treated as guidelines indicating also the targetsto be achieved. Domestic laws may be enacted for the implementatioa ofthese norms.

21. The prisons/homes where females and children are kept under anycategory should have an envitonment conducive to their dignity andgrowth as individuals and their management should be by personsspecifically trained for such purposes with an interest in reform and asensitivity towards it.

Penal reforms are long overdue and should be urgently undertaken.However, reform alone will not do, unless those who work the reformedmachinery/system are sensitive to the needs and objectives of the criminaljustice system and have the requisite ability to discharge their duty. That mustalso be ensured.

There has been considerable debate for long about the need to solve thisproblem. The time has now come to take some urgent effective measures to do so.

It is possible to achieve the desired result with full dedication and commitment.The Supreme Court of India in the last decade has shown the way which hasinstilled hope even in those who were clmical of such a possibility in theSupreme Court earlier to that. If this could be done in the Supreme Court wherethe work is bound to be the maximum and the of the highest quality needinggreater attention, there is no reason why it cannot be done in the High Courtsand under its supervision and guidance, in the subordinate courts.

68 The Citizen and ludicinl ReJorms

Sensitivity to all that we perceive, proper storage of all materials,intelligent docketing and developing the right impulses by training of the kindwhich heips to develop the perception ie needed to dispense justice according tolaw. The process is on-going in everyorte, but a conscious effort to develop theproper perception is the need. It is even more in a judge because he sits injudgment over his fellowmen. The ideal is difficult to achieve but the duties ofthe public oblige iudges to do their best.

These are some of the issues pertaining to the area of iudicial reformswhich need to be seriously and objectively debated to find a generallyacceptable solution ryhich enjoys credib ity in the public mind. The working ofthe system must be people-friendly, which it is not perceived to be, at present.The interpretation of article 21 to. include 'speedy justice' within the scope of'right to life' with dignity shouid be trantslated into action. This is the demand ofthe promise of equal justice for all in a democratic republic.

c6t&)

SOME ASPECTS OF TUDICIARYRaiinder Sachar*

The judiciary has always been recognized as one of the co-equalinstitutions of a State along with the executive and legislature. But in the recent

past, the public has magnified its stature manifold - some may feel

disproportionately. No doubt a great tribute. But then it means that the courts'must be prepared to suffer a close scrutiny of its action.

The judiciary, in spite of its quite visible drawback5, continues to enj9ysense of faith and confidence amongst the public. That is a good sign, because a

democracy cannot function properly if there is lack of judicial objectivity and

fairness; many kudos are given to the judiciary and most of them are vyell

deserved. I am, however, taking the course of a sympathetic critic to point outthe questions which require deep introspection and humility amongst thejudiciary so that it can play its significant Constitutional role in our democracy.

Even since 1975, when the politically motivated Transfer of High CourtJudges was resorted to by Indira Gandhi Govemment, notwithstanding that in1963 the then Union Law Minister had assured Parliament that no transferwould take place without the consent of the judge concerned, the said policyhas continued to be a subject of controversial debate.

The Supreme Court in Nine-fudge Bench case dishrrbingly went further inholding that not only no consent is necessary but that there can be series oftransfer and in this aspect overruled the earlier view od a Seven-Judge Bench. Ihave never understood the logic of transferring the senior-rnost judge whose.

tum has come to head the court in which he has worked for almost 10 to 15

years and wlth the functioning of which and also the functioning of lower

iudiciary he is most familiar. To transfer him out of the State to a new court for aperiod of one or two years to which he is a total stranger and may be not evenknowing the names of his colleagues, nor even the language of State. It is a

strange concept of advancing the administration of justice.

* Former Chief Justice of Delhi High Court.

69

70 The Citizan and ludicial Reforms

_ The_ policy of non-consensual transfers of High Court Judges would

wgafen the judJciary. I, however, fourid my position getting wea"ker by theadmitted misbehaviour of some of the judges, especially in the matter of theirrelatives practising in the same court (dhere are equaliy sterling exceptions).unfortunately, instead of promptly facing this p.oblem of misbehaviour byindividual judges, a general policy of transferring one-third of all judges fromtheir parent High courts to other High Courts was followed for the lastio manvyears.

I am all for proceeding against those judges against whom even areasonable suspicion exists. selective Tratrsfer instead of GeneraI Transfer couldbe understood. Foriunately the policy of transferring Judges is falling in disuse.But instqad a more harmful ind illogical pollclihas -been

e.,olv"ed by thejudiciary-namely of appointing a Chief Justice from outside the court of whichhe was a judge.

The lack of familiarity and adjustment to new surroundings of an outsideChief Justice will and has in the past greatly reduced his effectiveness to play aleadership role, especially as some appointments of o'tside Chief Justicei hivebeen made even for a period of less than a year. It must be emphasized that theHigh courl. exercised administrative conirol and superintendence over thewhole of a state's judiciary, unlike the Sr,rpreme Court, which is only the finalcourt of appeal in judicial matters without any administrative control. A chiefJustice of a High Court, therefore, plays a distinct role. An outsider as ChiefJr,rstice, who may not even know the names of districts in the state, will not beable to play an effective role. He may willy-nilly have to rely only on the opinionof a felv select colleagues and officials which unfortunately may spell furtherdisharmony in the High Court. Most of tLre outsider chief Justices have (I cansay from fairly reliable information) been i'nerely content to do routine work andavoid taking any hard decisions even if urgently called for. All other professionsgive a preference to experience. Is there any special reason why the judiciarywants to devahre experience and, thus, reduce its own effectiveness.

I feel that continuing the policy of general transfer of Chief Justices in thesecircumstances is too excessive like using a hammer to kill a fly. This policywould weaken the bulwark of our Constitution - namely, the independence ofjudiciary - for as Justice Douglas of U.S. Supreme Court said ,,no matter howstrong an individual judge's spine, the threat of punishment -(read transfer) thegreatest peril to judicial independence - would project as dark a shadowwhether cast by political strangers or by judicial colleagues,,.

I do not underestimate even for a moment the damage which some judgeshave caused to the judicial institutions by their unethical condnct, but damigecontrol will be better done by selective tiansfer rather than through a g"treralpolicy.

- The transfer policy would also give rise to the syrrdrome of sycophancyand flattery. That would be unfortunate because the High Court like ttreSupreme Court, represents the same aspects of sovereignty; the latter has noadministrative control over the former, only it is a step higher in the judicialhierarchy.

Some Aspects of lucliciary

It is in that cohtext, that I have never understood the difference in the ateof retirement between the High Court and the Supreme Court Judges. Even theconstitution Commissions while recommending the three years inirease, whichI approve has kept the difference in retiremenl age of the High Court and theSupreme Co,rt. In my view, the age of retireme.rfbetween th; High Court andthe supreme court should be the same because there is no reaion that if aSupreme Court Judge can be expected to work properly upto the age of 6g years(the extended age recommended) why a High Court Judge is not ionsidered soequally. Almost all Judges of the supreme Court come from the High Court andit is natural tendency for the High Court judges to t'y to come to supreme court.Because of age difference stories of lobbying are not unsubstantiated. It iscertainly not a desirable feature. If the age of retirement of High Court andSupreme Court Judges becomes same all this lobbying etc. will be stoppedbecause barring a case of a Judge who may have a chanie to become ttre cilierJustice of India, there will normally be no compulsion or allurement of a stateHigJr Court Judge to try to come to Delhi which certainly involves a dislocationof the Judge's family and normal pattem of a life.

Though in not too distant past integrity at a higher judiciary level wasunimpeachable. That certainty cannot be boasted now. The present chief Justicewas so pained as to publically lament that there is doubt about the integrity of20% of higher judiciary. But much earlier in a sorrowful note by Mr. Iust]ce

'g.S.

Venkataramaiah, the former Chief Justice of India, who bewaiied, ,,fudiciary jnIndia has deteriorated in standards because some of the Judges are willing to beinfluenced by lavish parties and whisky bottles...... It wis hard to d]scardreports that every other's son/son-in-law of judge whatever his merit/lack of it,can be sure of earning an income of Rs. 10,0b0 per month (Indian post 17December, 1989). Modest, as he was, Chief fustice Venkataramaiah would havebeen almost stunned, had he been properly informed that figure mentioned byhim was not the measure of a month but probably even of less than a week.

. Therg is no quick remedy. Realising that impeachment proceedings aloneis not the answer National Judicial Commission recommended byConstitutional Commission could do some salvaging. of course, details and thepersonnel of ]udicial Commission rreed to. be debated - I am, however,convinced that leader of opposition in parliament must be a member of theJudicial Commission.

That judges need to be govemed by code of ethics is beyond dispute.American Bar Association in 1924 while laying down the cannons for lawyerswas equally mindful that the character and conduct of the judge should neverbe objects of indifference, and similarly laid down 36 canoru foithe Judiciary.

Some of the above said Canons are ,A Judge should be temperate, attentive,

patient, impartial'. Also,like courtesy and civility which says ,A judge shouldbe courteous.to counsel, especially to those who are young and inexrp=erienced,and also to all others appearing or concemed in the administration of iustice inlhe court".


But for pithiness and depth I do not think that one can improve what wassaid by Bacons in his Essay "Of Judicature" namely "Patience and gravity ofhearing is an essential part of justice; and an over speaking judge is nowelltuned cymbal. It is no grace to a judge first to find that which he might haveheard in due time from the Bar, or to show quickness of conceit in cutting offevidence or counsel too short; or to prevent information by questions thoughpertinent".. .. "The place of justice is a hallowed place; and therefore not onlythe Bench, but the foot pace and precincts and surprise thereof ought to be

presewed without scandal and corruption".

But such is the irony that Bacon disgraced himself by indulging in acts ofbribery and favourism, at the fag end of his career. This only highlights the

complexities and the sensitivities in the matter of effective implementation ofethical Code for Judiciary.

Judicial Activism

Many rdsponsible people including a forrner Prime Minister have

candidly, though politly while not questioning the utility of Public InterestLitigation, wanted rationality to be brought into it. Surely, he said, courts cannot

run the Government. He, therefore, suggested the society and Parliament todiscuss the issue whether in the process we do not create super institutions.

One of the usual misunderstanding in the exercise of Judicial review ofaction of legislature and executive seems to arise as if the courts consider

thernselves superior to Executive and Legislature. Quietus to this assumptionhas been given by Chief Justice of India f.S. Verma when he said recently that"the controversy being generated over the supremacy of the three wings ofdemocracy - Judiciary, legislature and executive - was a "futile exercise.

Neither the legislature nor the executive nor even the judiciary was superior. Itwere the people who are supreme. .."

Similarly, Alexender Hamilton one of the founding fathers of the AmericanConstihrtion has said "the exercise of judicial review" otsly suPPoses that the

power of the people is superior to both (court and legslature).

Our Supreme Court has called the Power of Judicial review as a basic

feature of the Constitution and hence beyond the amending powers ofParliament. l

The criticism of judicial activism as such is therefore untenable' Courtshave since long been judicially active in giving relief in social action litigation tolabour, to victims of custodial violence, to the excesses committed by the

Executive. But because as previously judicial targets were comparatively junior

officials and certainly never involving politicians, issue of judicial activism was

not taised by the executive. This charge of alleged interference by the courts has

only now been put in issue because the fire of judicial activism is coming nearer

home to the high officials and politicians who had falsely hypnotisedthemselves into believing that they were above the law even though as far back

as over 300 years Chief Justice Coke had said "Be you ever so high, the law isabove you."

Some Aspects ofJttdiciary 73

I am willing to concede that sometimes the courts in their excessive zeal

may enlarge their reach and try to find solution to the problems whichadministration alone is competent to attempt' But then as Chief JusticeRehnquist of USA Supreme Court said, "Judges, so long as they are relativelynormal human beings can no more escape being influenced by public opinionin the long run than can people working at other jobs'"

It may well also be true as some critics have said that court's interference

in the normal functioning of administration, like the direcLions as to whichparticnlar authority is to take a decision which may and does cause

administrative anomalies and loss of morale. Thus I am not sure that judges can

properly monitor the daily disposal of garbage by civic administratiory nor the

actual steps taken to meet the problem of malaria etc.

It may be readily conceded that courts lack the technical.expertise to deal

with many of the matters which at present the courts are insisting on

monitoring.

Environmental groups, who using the cloak of fear of pollution and overindulgent consideration for the welfare of wild animals seek the aid of courts fordirection to evict the poor slum dwellers from the sites they have lived forgenerations. Though PIL do manage to get court directions without paying due

regard to the human suffering of poor evictees.

The courts somewhat rashiy gave direction to shift industries- outside the

city limits, which will involve dislocation and relocation of about 2,00,000

families. Insistence by courts even without there being adequate relocationpolicy, to shift in the shortest of time frame compounds the problem. The poorget the blame for pollution, when the inefficiency and vested interest ofgovemment machinery should take the blame.

Also in this apportionmeni of blame, if is conveniently forgotten as was

pointed out in one estimate that 70"/" of air pollution in Delhi is caused by 30.

lakh vehlcles (the highest number in the country). And yet planners andpoliticians seldom talk of having no vehicles zone, planning the vehicles

movement and improving the availability of efficient public transport. In theirmisplaced enthusiasm courts goaded by environmental-cum-business lobbyinsist on applying Euro-II standard in cars in India with per capita annualincome of 350 US Dollars (when the same were introduced in Europe hardly a

decade back when per caPita annual income was at least 15,000 US Dollars).These rigid standards have resulted in mass unemployment of individual taxidrivers and of three wheelers thus seriously jeopardising the livelihood ofhundreds of thousands and consequently violattrg their Human Right of livingand work.

I do not mind confessing that I do feel bitter that these worthies invoke the

language of first world and seek to apply the same tests in developing counhiesthat are most inapposite in different situations. After all the greatest violation ofHuman Right is the poverty, homeiessness and not having even ordinaryshelter. I may sound a reactionary to these so-called animal lovers, but if ever a

74 The Citizen and lruticinl Reforms

choice was to be made between preserving the Human Right to shelter of a slumdweller or the so-called envi onmental standards laid down bv. first rvorld. Iwould unhesitatingly opt for the former because to me no one tates precedenceover human brotl-rerhood.

It is well to remember what Justice Frankfurter of the USA said, ,,all poweris of an encroaching nature. Judicial power is not immune to this humanweakness. It must also be on guard against encroaching beyond its properbounds and not the less so since the only restraint upon it is self-restraintj,

"No one is an imporium in imperio in our constitutional order. Uncheckedpower is alien to our system." A former Chief Justice A.S. Anand reminded thejudges that though "our ftinction is divine, the problem begins when we startthinking that we have become divine."

If I sound a bit harsh, I can only invoke the caveat of Mr. Justice Holmes ofUS Supreme Court, who said, "l trust that no one will understand me to bespeaking with disrespect of the law, because I criticise it so freely. .. But one maycriticise even what one reveres. ... And I should show less than devotion. if I diinot do what in me lies to improve it."

(,6&)

JUDICIARY AND LEGISLATUREBiplab Dasgupta*

Very often we discuss the respective roles of judiciary and legislature, onthe floor of the Rajya Sabha, in our own inimitable partisan ways. If the issueconcerned is already before a court of law, some of us forcefully take the viewthat it is sub judice and hence cannot be discussed by us. At the same time, someothers, equally forcefully, take the view, that the legislature must discuss thematter since it has a duty to perform, and the duty cannot be abdicated justbecause the judiciary had taken cognisance of it earlier. The matter is thenresolved either by lung power or by the mood of the presiding officer at thatpoint, but never as a question of law. We never resolve whether all sub judicematters need be avoided, or whether all are subject to review by the legislature,or some are and some are not. In the last case, we almost deliberately leave itdelightfully vague as to what should be and what should not be subject tolegislative review and on what basis.

During the middle of the nineties judicial activism became a big issue.Some of us felt that judiciary was often exceeding its jurisdiction, and wastilting the balance between three organs of the Constitution in its favour, butdecided not to protest against this judicial encroachment. Our decision of notprotesting was based on our contemptuous opinion on the correspondingunder-activism and under-performance of the executive. If the judiciary wasover active, we argued, that was because the executive was not acting at all.Somebody had to look after issues like Hawala and Pathak spices. If theexecutive was not remotely interested, or are culpable, who are we to blame thejudiciary for dealing with something like Jain's diary? The people were after allhappy with Judiciary as they took action after action after several years ofinaction by the executive. The opinion of the people in favour of the judiciaryswung the balance in our mind. More important than whether the balance threeorgans enshrined in the constitlltion, swung in favotir of judiciary was thefeeling that some one somewhere had to do it.

* Member of Parliament.

/3


Our hope on the judiciary at a particularly critical point in the recenthistory of our nation tumed into anger when the judiciary failed to produceconviction in any of the cases. I would rather apportion more of the blame onCBI which, as a body, seemed to be more interested in public relations thaninvestigations. The F.fawala case fell througlu not because the court found thatthose who had been named in Jain's diary were innocent, but that the details ofthe diary could not be corroborated by othei evidence, despite the tall talk by oneCBI Director af ter another. They were behaving less like professionals that theywere and more like failed politicians, giving one press conference after another..Other cases failed partly because of their inability to mobilise evidence, andpartly because the judges failed to see what was obvious. Even after depositingidentical amount of lakhs of money in a partlcular branch of Punjab NationalBank more or less on the same day, by people who in no way could eam oraccount for so much, the case of bribery could not be proved. One wonders whyour judges, like King Solomon, could not take a common sense view of thematter.

Our disappointment also grew when one of the judges of the SupremeCourt was sought to be removed in the nineties for various irregularities, andwas saved by a Prime Minister who asked his party men to abstain from voting.In our country a judge of the Supreme Court is taken as a demi-god who can dono wrong. For him to be removed for misbehaviour was alost a sacriiege,unthinkable in the past. Now a conviction is growing among people, whichmay or may not be wrong, that a corrupt judge will never be disciplined by thejudges themselves.

Perhaps, taking the Supreme Court judge as a demi-god is wrong. This ismore clearly seen when judgments are analysed and their impartiality is tested.A judge may not be partial knowingly. He may think that he is impartiallygiving a judgment, taking in to account the pros and cons of the issueconcerned. But, as the students of statistlcs will tell us, human bias creeps in allthe time, and unknowingly. A judge, like any other persory is a product of the

,society and its history. Like any other person, he has a certain culture as

reflected in his food habits, dress, manner, accent/ and so on. Most of these hederives from his upbringing in school and college, and parents and colleagues.From these he develops a certain world view, liking something and dislikingsome others. Once Bertrand Russell wondered why ICS officers were so uniform.The answer to this was that they received similar education and belonged tosimilar classes, or had an ICS father. A judge from a particular background willbe supporting private property, while another from an entirely differentbackground will take joint ownership of property as easily. The fact is that mostof our judges come from a given background and hold a particular world-view,and it may not be easy for them to accept that other views exist.

This is human nature. It can not be shown that the Indian ludiciary isdifferent from others. From the begiruring of Indian judiciary, this has been a

maior problem with us. When the British interpreted our laws, they interpretedin their way. In each case, they found a parallel between our institutions andtheirs to conform our laws to their understanding of what law should be like,

/tludic ia41 and Legislature

based on their own experience in .h.i. o*,' .o.,r,.try. It is natural that the people

*iii try to .roa"rstandiaws and customs in their own terms, irrespective of-what

aciualiy exists. Lord Comwalis enacted permanent settlement for the landlords.

ln Vg,, largely because he was a landlord himself and understood them'

Everyryvhere"in'the globe where European colonialism spread the EuroPeans

*anied inequality, Jven in places where tribal egalitarianism was dominant'

fr".u"r" tney tt oirght that inequality was essential for progress. Class added

col,our to a soc;etylnd inequality wis like an engine which ensured growth. It

was God's law, tire British iolonialists would argue, that some would be more

unequal than others, some would be born to rule and some to be ruled' like the

subjugated colonial population and slaves' The concepts of equality and

solidarity are by no means universal'

It is necessary for the judges to show that they are as much aware about

tne re"tir,g u, *u 'uru and prolose to do something about it. on issues like

promotioi, transfer, retrenchment, salary, and so on, there should be

i;;;;tt."; that are self-regulatory and ire immune from corruption and

subjectivity. Just because soire one'is a judge, it should not be assumed that a

p".i"" i, a'Uorre att kinds of human caprices. There has to be a self-disciplinary

mechanism installed somewhere to ensure the high quality of justice with

honesty and integrity. And this mechanism has to be known to the common

masses and to be trusted by them to prove effective. "Justice should not onlybe

done, but also it should be seen as hiving been done", we learnt this dictum by

heart in the early days in our classes of jurisprudence'

Several years ago we experienced a good examPle of self-discipline' Aiunior iudge, while discussingiawala, made some uncomplimentary remarks'"U."i if,""p-riament, that ciused uproar on the floor of Rajya Sabha. Some

wanted a strongly worded resolution decrying the judiciary and openly

advocated confr6ntation with it. At the end, good sense prevailed and an

understanding was reached to wait. Next day' the iudiciary.at hi8h:: level

pulled up theJudge concemed for making those remarks' And that was the end

of that chaPter.

ThereisalackofunderstandingofcontemptlawsintheParliament.'Itisnot known that, as long as a motive ii not imputed on the judge' a iudgmen!

o{

in" ."*, is subiect to p"ublic examination like any other document. It is not that

a legislator is refrained from saying that the iudgment is wrong'

(6&)

Part IIITHU ClrrzEN/

|usucn ANo juucrARy

THE CITIZEN AND ruDICIAL REFORMS

R.S. Pathak*

There comes a moment in the history of every institutioru as indeed it does

in the iife of any nation or people, which calls for deep introspection on the

ftinctioning and future progress of tl:rat irstitution.

Law and Justice are fundamental features of a modem democratic polity'They constitute the quintessence of our conception of the State and are involvedin its very definition. But Law and Justice also pass beyond the politicalorganisation to the personal quality of human living. They possess an elementalquality in sustaining human relations within a civilised community. Theyunderlie the aspirations and expectations within which the human psycheexists and operates.

A well ordered society governed by Law and Justice is India's imperativeneed, more so today than ever before. We have a situation today where theslowly moving pace of feudal norms has been superseded by a rapidlychanging nationai order in which the nascent energy of vast numbers ofhitherto voiceless sections of society insistently demand attentiorL where inseveral parts of the country the political and social order is influenced by thevocalisation of age old suppressed urges. Moreover, economic pressures andambitions express themselves in a rising curve of crime and violence. Besides

this, changes inevitable to the several dimensions of a developing society call forthe guidance of Law and Justice. If the Rule of Law weakens, or fails, there is thepervasive threat of increasing chaos and we could slide into an Age Darkness' Itis inescapable, therefore, that we should treat the subject of Judicial Reforms as

an area in which the citizen has a vital stake.

Seldom has that consequence being so sigtrificant. The judicial institutionrepresenting one of the three great pillars of the State, maintains the security andstrength of our constitutional system. Today it is without doubt in a conditionwhich arouses considerable concern and unease. The courts, at different leveis,

* Fotmer Chief Justice of India.

81

The Cifizen and ludicial Reforms

are choked with an unprecedental backlog of pending cases. The litigantsdespairs, and even when he succeeds on the litigation ne rinas that alth6ughthe victor in the dispute, in reality he has become the victim of delay.

Through the recent decades, several strategies have been evolved. SpecialCourts, Administrative Tribunals, Lok Adalats and now an ever ur.p"t dir.rgvolume of commercial arbitrations attempt to respond to the crisis. Theexpeditious disposal of intemational commercial disputes possesses aprofound influence on India's intemational trade and commerce. In the longterm, a debilitated economy will seriously affect India,s inlluence in thiinterplay of global politics.

We have wilnessed and some time participated in Conferences andSeminars on Judicial Reforms. The present Slminai is unique among them, inthat it seeks to relate the need, nature and direction of Judicial Refoims in thecontext of the needs of the citizen of India. Over these two days a number ofbusiness sessiors have been preoccupied by some fundamental questions. Theyhave ranged far and wide, attempting to cover comprehensively the scope of thecentral theme. In a valedictory address arrd within the limitation of time, I shallnot attempt to traverse the contents of thht debate but a few observation may bepermitted at this point.

It is indisputable that the central objective of all Judicial Reforms should beto ensure and strengthen the independence of the judiciary. Considerationswhich weaken judicial independence wiltr deny to the judicial institution its trueidentity and purpose. The independence of the judiciary is affected by themanner in which the selection of judgeb takes place, the qualifications of thejudge, personal and professional, which decide that choice, the freedom illowedto the judiciary to function in independence, the ethical principles reflected inthe public image and behaviour of judges while in office, and even thereafter.Al1 these considerations entered into the composition of the judicial personalityand the assurance of judicial independence. Generations of ju-dges havlfollowed the classic traditions commonly accepted as contributing to theindependence of the judiciary. Let it be known thioughout that there c-an be nodeviation from them, and dilution of those principles. A speciousrationalisation of the norms of judicial colrduct and behaviour is attempted fromtime to time. Those who do that do ill-service to the cause of iudi.iulindependence and of the esteem in which the judicial institution should be held.

It is said that the status of the High Court has suffered during the last fewdecades. If that is so, the reason could be that in a previous era the High Courtswere regarded as the highest judicial instihrtion within the territories of India.The Privy Council sat in Londory and appeals from the High Courts to it wereextremely few. That position has been tempered by the presence of the ApexCourt within the country itself. Nonetheless there is no reason why the HlghCourts in India should not enjoy much Of the esteem the public gave to thembefore. In my opinion, the strength and efficiency of a High Court and themeasure of public esteem which it enjoys tums greatly on the personality of theChie{ Justice of that High Court. It is true that we mLrst now accept the piinciple

l-he Citizcn nnd ludicial Reforms g3

that a Chief Justice should be appointed to a High Cor"rrt from outside the state.Those appointments should not be made as a matter of course. They should begovemed by a careful consideration of the needs and problems of the HighCourt to which the appointment is made. A chief Justice needs to possess strongadministrative abilitt the wisdom to promote unity within the court and enjofthe full confidence of all his brother judges. He must be above all a man who isknown for his strength of a character and a highly developed moral sense, bothin regard to his judicial functions and in his personal life. In India it is difficultto draw a line between the public personality and the personal life of aftrnctionary entrusted with high resporuibility. The values of one are seen by thegeneral public as flowing fi'om one into the other. while that must be true of alljndicial appointees, it is specially so in the case of the appointment of a ChiefJustice.

Another aspect which instantly calls for attention is the general criticismthat a Chief Justice, selected from the judges of other courts, holds office as chiefJustice for a few years only, rendering it difficult for him to address the problemsof the High Court now headed by him. It is pointed out that not posseising anyprevrous acqltaintance with those problems, the short-term enjoyed by him doesnot enable him to address those problems effectively, and they targely remain as

lhey ye1e. A suggestion which offers itself is that a Judge of a High Courtintended to fill the office of Chief Justice of another High Court, should beselected some years before the event and appointed to that High Court at a timewhen he could be the senior-most Judge of that High Court for an appreciableperiod of time before he assumes office as Chief Justice of the High Court.

The transfer of judges is now accepted as a matter of policy. In that context,I would sugtest that before the transfer of a judge from one High Court toanother, every attempt should be made by the High Court to which he is to betransferred to provide suitable housing and all other facilities immediately onhis arrival on transfer. I am told that in some cases a suitable residence could beprovided to transferred judge only after the passage of much time. The absenceof such fac.ilities tends to demoralise the transferred judge, and that affects thequality of his work in the court as weil as the mind-set with which he faces hisnew environment.

Judicial activism occupies now a fair measure of the time of the superiorcourts. It cannot be disputed that public interest litigation has come to stay.Several issues ranging far and wide over the spectrum of daily living are beingcovered by such litigation. They are prompted generally by the inability orinaction of execlltive agencies. As it happens, while in most cases public interestlitigation has been treated with an appropriate exercise of jurisdiction and hasresulted in a measure of substantial public benefit, there have been a few caseswhere the court can be said to have ventured into a domain plainly beyond itsproper jurisdiction. I believe, it is time for the courts to redefine the principles,both substantive and proceduraf which can constitute guidelines fbr judicialintervention in public interest litigation.


Finally, while we hear persistent voices for Judicial Reforms, it is

necessary to remember that in any system, substantive or ptocedural, devised as

a measure of reform, success can be achieved only by a greater commitment and

total dedication to the goals for which the judicial administration exists' This isas true for the legal profession as it is for the courts. I believe it is time that thelegal profession also reviewed the mea$ure and quality of its responsibilitiesand exemplified that awareness in all.ihey do. The legal profession and thejudiciary are truly partners in the great task of strengthening the administrationofjustice. Let it not be said that short-term gains obscured the needs of the long-term vision. The needs of the long-term vision cannot be Postponed to the

indefinite future. We must start now.

ogN)

THE CITZEN AND THE PERFORMANCE

OF THE TUDICIARYShivraj V. Patil*

How does the citizen feel about the Indian judiciary? The citizen feels

that the judiciary has done better in discharging its duties as per the provisionsof the Constitution than the executive and the legislature have done. May be,judiciary is not as exposed as the executive is, maybe, legislature is little less

exposed than the executive is and more exposed than the judiciary is exposed. Ifwe compare the performance of the executive, legislature and judiciary,probably people hold judiciary higher and thihk that the iudiciary has donebetter. That does not mean that the citizen agrees with all that is done by thejudiciary or that he is fully satisfied with its performance. On the decisionsgiven by the court, he may have views which may not be reflected in thejudgment. He has to abide by the judgment. The judgment is binding on him.But he may not in his heart agree with the logic which is at the basis of all thejudgments that are delivered by the courts. He may differ and he may hold thatthe judgments could have been different in some cases. He wants that justiceshould be done to him. And, in the drajodty of cases, justice is done. Thepercentage of cases which give him satisfaction may be as high as 90 per cent.

Sq this demand of his is really met.

The citizen wants that the time taken for dispensing justice should be veryshort and that the delays should be avoided. Unfortunatelp on this count, he is

disappointed. The delays are really very agonising. They are so agonising thatat times he does not want to have recourse to the court of law to get justice. He isinclined to resort to extra judicial means to get justice. This point has beendiscussed in many conferences and forurns. But no very effective solution is yetdiscovered. The delays increase in proportion to the number of new laws made,number of new activities started and the number of persons for whom they aremade. Unfortunately, the number of the courts and the number of judges in the

* Member of Parliament, Deputy Leader of The Opposition in Lok Sabha, FormerSpeaker Lok Sabha.

85

86 The Citizen arul Judicial Reforms

courts are not increased proportionately. This mismatch .is one of the mostimportant causes of undue delays in droing justice. The procedures that arefollowed need to be modified. some relief can certainly be delivered if thechanges in the procedural laws are effected. There are Jt least two sides to adispute. one-side is always interested in delaying the hearing and disposal ofmatters. The law should take note of this fact and take action against the partydelaying the disposal of the case.

Cost of getting jushce done is becorrning prohibitive. The court fees and theprocess fees are not very burdensome. If they are, they can be reduced. But thelawyers' fees are very heavy. So, it is not possibie for all to pay those kinds offees. That is why, it is said that everybody can be equal in the eyes of law but notin the courts of law. A person who can offer to pay fees of a good lawyer hasbetter chances of winning the case against a person who cannoi engage i senioror_a good lawyer. Legal aid schemes have been brought into existence. Theyhelp to some extent but not fully. Somethlng more needs to be done. The marketforces should not be allowed to make getting justice a very expensive exercise.

Private industry, trade and professitons are modernised. The pr-rblic sectorunits are also modernised. The executive wing of the Government is in theprocess of modemisation. But the judiciary has not been given the modernequipment that are given to the executive. As far as the equipments that are usedby them are concerned, judiciary is quite low in the list of performance inmodemisation. That is because adequate funds are not available. It has becomevery necessary that enough funds should be given to them so that they disperuejustice expeditiously. They should be provided with computers, cameras,copying machines and many such things, The sooner the steps are taken in thisrespect, it would be better.

Public interest litigation is helpfirl to the people. It should not bediscouraged. But it should be used pqoperly. In many cases, it is used to delaythe projects and defame the person. That should not happen. Judiiial activism isdiscussed in courts and in many other forums. The judiciary lras to do justice tothe people. lf laws enjoin the executive to perform certain duties, they should notfail in discharging them. They should be compelled to perform throughdiscussions in the legislature, in the media and in the judiciary. Any equipmentor any source of power can be used, misused and abused iepenai.rg o" tfreperson using it. The judiciary should never allow anything to use or abuse theprocess of law and the machinery of doing justice.

Judiciary has a duty to interpret the [aws, the executive and the legislatureare not meant for this purpose, that is, to interpret the law. Of course, whileconducting the proceedings in the legisla[ue, certain rules are interpreted andcertain laws are interpreted. But while the interpretation of laws is not bindingoutside the House, interpretation of rules is binding. The executive is alsoexpected to interpret the administrativq laws and without interpreting theadministrative laws, they are not in a position to administer. To that extent, theinterpretation of law and the rules by the executive and the legislature isallowed. They can initiate and make the laws and policies but the interpretation

The Citizen and the Performnnce of the ludiciary 87

of the laws, if not the policy, should be done by the judiciary. There is adistinction between the interpretation of law and interpretation of policy. As faras interpretation of policy is concerned, the final word should lie with thosewho really make the policy, that is, the legislature. As far as interpretation of thepoiicy is concemed, the nuances of policies are concerned, it has to be donedifferently. But as far as the interpretation of the laws is concerned, whichcontains the policy, it is given to the judiciary. And if the interpretation of policyis done in a fashion that new law is created, that will not be correct.

The judiciary can compel the executive to perform its duties but it shouldnot issue executive orders as such. There is a difference betlveen issuingexecutive orders and ensuring that the executive performs its duties. The finedistinction between these two should be very clearly understood. Interpretingthe law is the responsibility of the judiciary and that interpretation of law isbinding on the executive, legislature and all other bodies also.

\A/hile interpreting the law, it is not only the decisions given in theprevious cases but decisions given in other countries are discussed, not thewords but the meaning that is attached to the word is taken into consideration.The most important source which can help the interpretation of the law, is thedebate on the floor of the House. That can give the direction, that can give theidea as to what was thought proper at the time of making the law. If that law isnot correct and if it is not approved by the legislators and the people, it can beremoved from the statute. But until the time, it is on the statute book, it has to beinterpreted in the light of the discussions on the floor of the House and not onlywith the help of the meaning attached to the words or help of the decisionsgiven in other countries or the decision given in our country. Now this is anissue which needs lot of discussion and it will not be possible to come to acorrect conclusion by saying that in no case, the court should interpret policies.There may be difference of opinion on the interpretation of the policy also, notonly the outer words in the statute book. This is a very delicate issue, it has to bevery carefully handled. But, broadly speaking, the judiciary should not get itselfinvolved in issuing executive orders or making laws. But they do have the rightand the authority given by the Constitution to compel the executive to dischargeits duties. And if the executive is interpreting a law in a manner which suits theoccasion or which suits their interest the correct interpretation of that law canbe given by the judiciary. But when that interpretation is given, what was theintention of the law makers at the time of making that law should certainly begone into in detail and then it would be possible for the judiciary to interpret thelaw in a proper m;rnner. And if that is done, it is not interfering in the executiveduties or the legislative duties of the two wings of the State. It is reallydischarging the duty which is cast upon the judiciary. In majority of cases, thathas been the case. In one or two cases, the members of the executive may notagree with the interpretation given by the judiciary. Some Members oi theParliament also may not agree with it. Sometimes, the media people may notagree with that. Sometimes, the people at large also may not agree with that.And there is a scope for differences of opinion on this point. But this is an areawhich is attracting lot of attention and, therefore it has become necessary toclearly demarcate the areas to see that these things should not happen.


The state is an organic whole and the three wings are parts of that organicwhole, the executive, the legislature and the judiciary. We in India haveaccepted the theory of partial separatiorr of powers. judiciary is completelyindependent, judiciary should remain independent. It would be wrong toreduce the independence of judiciary. .Any day, any time, we reduce theindependence of judiciary, it will affect Indian polity, lndian Constitution andthe system we have accepted. So it is necessary to guard the independence ofjudiciary. In no case, it should be allowed to be diluted. But at the same time, theexecutive and the legislature are not aF independent as the executive andlegislature in America are. American executive is completely independent of the

legislature; the legislature is completeiy independent of the American executive.But here, the executive is accountable to the legislature, not only accountable tothe legislature bttt the executive comes out of legislahrre. In America, a Ministercannot remain a Minister if he becomes a Serlator. Or if a Senator is appointedthe Secretary of the Governinent, he has to resign and go. That is the case inFrance also. But in India, if a Minister is not a Member of the legislatttre, he has

either to become a membet of the legislature in six months time or he has toresign and go. So, the independence or ttre separation of the executive powerand the legislature's power is not accept€d in India. On the contrary, they are

inter-independent. Executive is accountable to the legislature. Wherever, wehave accepted the complete separation of powers, there have been conflicts.Specially in America, the conflict behareen the executive and the legislature, thelegislature and the judiciary, judiciary and the executive has been much morethan the conflict in India because there they have accepted the prificiple ofcomplete separation of powers. Here in India, we have partly accepted thatprinciple and partly we have allowed the two wings to be dependent on each

other. That is why, here in India also, there is a confligt at times between these

three wings. There cannot be a conflict between the executive and thelegislature. There has been conflict between the executive and the judiciary. But

fortunately for us, those who have manned these three wings of the State, have

understood the basic structure of the Constitution. The principles, the mostimportant principles of the Constitution and they have performed their dufy in amanner that they are part of the organic whole and that has reduced the tensionbetween these wings. While discharging the duties, while not allowing anybodyto influence their right to discharge their duties, they have discharged tJreir

duties in a manner that unnecessary tensilons and conflicts are avoided. Maybe,in one or two cases, we may have different views but if we take the totality of the

performance by these three wings, we have every reason to be satisfied. Therehas been an understanding, a perfect understanding of the duties that are to bedischarged by them under the Constitutidn. This is the way in which these threewings have to perform.

The National Judicial Commission has become an issue on which thereare differences between the executive, the legislature and the judiciary. It may be

in the interest of the entire system as such to decide this issue in such a fashionthat the purpose for which these wings have come into existence is achieved

and at the same time, the differences are reduced. lf we have a National fudicial

The Citizen and the Performance of the ludiciary 89

Commissiorl it should have representatives of the three wings. There should notbe any difficulty in evolving something acceptable to all ultimately.

The idea of giving written arguments is very welcome. In the Parliament,the Members are not allowed to read out their speeches. They have to make theirspeeches. But in the U.S. Senate, and the House of Representatives, time given tothem is two minutes and three minutes. And thai time, they use in the bestpossible manner. Mr. Yashwant Rao Chavan once said, if I have to speak forhalf an hour, I think for eight days and if I have to speak for five minutes, I thinkfor two months. So, written speeches are really welcome in the Parliament alsoand the copies of the speeches have to be given to the presiding officers. And ifthere are points made by the previous speaker, then the Members are asked todelete those points. In the same fashion, if the written arguments are given, theverbosity of the language can be avoided and it would certainly be very useful.

One word which is very often used is politicisation. What do we mean bypoliticisation? Is it an abuse inflicted at the politicians or is it an abuse inflictedat others? Politics is a part of life. Ncw everything and anything which has to bedone in a democratic country has to be done in the Parliament by therepresentatives of the people who are elected. And if we do not accept theconcept of the people, a government by the people, of the people and for thepeople, we cannot have one billion people sitting in the Parliament and takingthe decisions. There have to be elections. We have to have representatives andthey shall have to take decisions. Sometimes it is said that the authorify of theelected representatives should be reduced and.it should be given to thenominated persons as in many cases, nominated persons are better informedand they are in a position to perform their duties in a better marrrer. There is nodoubt about it. But as far as the wishes of the people are concemed, nobody is asequipped as a politician is, who lives with them, who comes from them andwho is elected by them. He might commit many mistakes. His credibility todaymay be very low and yet he is a person who is better informed about the wishesof the people, the opinion of the people. And if democracy is a government bydre people, of the people and for the people, we do not have any other system inwhich the people's wishes are represented. There are millions and millions ofpeople whose views are not at all projected to those people who have to take thedecisions and the only way in which that can be done is through the media whomeet the people or through the politicians who come from the people. This wordpoliticisation has been used too oftery sometimes properly and sometineswrongly and with abusive connotation attached to it. If it is denigratingdemocracy or the system which we have adopted, we must not continue to usethis word in an abusive manner and should find some other word to point outthe defects and the lacunae which exist in the performance of the duties by thepersons who are at the helm of affairs and the defects in the system also.

(,5Dc)

CITIZENSHIP VALUES AND

QUALITY OF JUSTICE

Rights demand a guarantee or secgrity that they shall not be infringed.However, they are not productive. On the other hand, duties demand theirperformance, their implementation, and they are productive^ Therefore, it is thecitizen's duties which constitute "Citizenship Values".

Article 51A of the Constitution enshrines fundamental duties of thecitizens of India - the ten commandments. each of which is Drefixed bv themandate:-

"It shall be the duty of nery citizm of India...."

A serious thinking on the fundamental duties leaves no manner of doubtthat their implicit practice has a potential to regenerate and reconstruct thenation. It must, therefore, be said that the future of India lies in implementingand invigorating compliance with the cltizenship values enshrined in Article51A of the Constitution.

These citizenship values enumerated as ten commandants in theirapplication to the administration of justice., will bring about improvement in thefour fold quality of justice, namely, Unpolluted Justice, Substantial fustice,Speedy Justice and Inexpensive Justice.

Unpolluted

Substantial Speedy

* Former Chief fusticg Madhya Pradesh High Court.

Shiv Dayal*

I r,rsrrcE IInexpensive

90

Citizenship Values and Quality of lustice 91,

The constituents who participate in the process of administration of justiceare:-

A. TheJudges

B. The Lawyers

C. The Parties and Wifnesses. and

D. The Law Makers

Principal and primary responsibility to produce the four-fold quality ofjustice is of the judges, whose function is dispensation of justice.

Five of the ten commandments are reserved for their resDectivecontingencies:-

(i) To uphold and protect the sovereigrrty, unity and integrity of India,clause (c). It is a duty prohibitory in nature that nothing derogatory ofthe upholding or protecting the sovereignty, unity or integrity of Indiashall be done.

(ii) To defend country and render national service, when called upon to doso, clause (d). It is contingent on the citizen being called upon to defendthe country and render national service.

(iii) To promote harmony and the spirit of common brotherhood amonpt allthe people of India, transcending religious, linguistic and regional orsectional diversities; to renounce practices derogatory to the dignity ofwomen clause (e).

The first part denotes the development of a mental outlook that willenable the citizen to transcend the diversities which will always exist.

The reservation policy is in direct contradiction with the clause (e)

because it separates certain sections from others on the basis of caste.Dr. Ambedkar was opposed to reservations for Scheduled Castes formore than forty years. He said that even the Parliament should have nopower to extend that period by law.

In reality the reservations have not benefited those for whom they weremade and have been monopolized by certain sections. Reservatioru inCompetitive Examinations is contradiction in terms.

The second part is a mandate to remove prejudices based on diversitieson the point of sex.

(iv) To protect and improve the natural environment including forest, lakes,rivers and wild life, and to have compassion for living creatures, clause(9.

In the face of the menace of the increasing pollution and environmentaldegradation, it is the duty of a citizen to protect and improve naturalenvironment and to have compassion for all living creatures.

(v) To develop the scientific temper, humanism and the spirit of enquiryand reform clause (h).

92 The Citizm and ludicial Reforms

Three elements are inherent in every man:-Animality, Humanity andDivinity. Caution and control are required against falling into animalism.Humanism is outstanding in man's nature. Divinity constitutes qualities higherthan humane,

The above fundamental duties enshrined in clauses (c), (d), (e), (g) and (h)are general in nature. They equally apply to all the constituents ofadministration of justice.

Clause (b) of Article 51A vests in the citizen's noble ideals, which aredefined by reference as the noble ideals, which inspired our national strugglefor freedom. Those ideals are very much relevant even today and shall remain soalways.

In the context of administration of ipstice, some of them are:-(i) Tmth(ii) Justice

(iii) Independence

(iv) Sacrifice

(v) Perseverance

(vi) Fearlessness

(vii) Selflessness

Some Corollaries

. Fees payable to the Lawyer should be regulated by Law according totheir classification, Experts, Senior, Junior and Solicitor (to bedesignated by the High Court) for their respective State and ChiefJustice of India in consultation with his two senior-most colleagues forthe Supreme Court.

. Payment of Professional Fees to the Lawyers in cash should beprohibited by law.

r Working days for the Courts should be 220 days (minimum).

r Long summer and ryinter vacations must be abolished.

Clause (f) of Article 51A imposes a duty on every citizen of L-rdia to:-"Vnlue and preseroe the rich heritnge of our composite culture" .

(i) After all a Constitution like a machine is a lifeless thing. It acquire lifebecause of the men who control it and operate it, and India needs todaynothing more than a set of honegt men who will have the interest of thecountry before them.

(ii) Every culfure stands for some nbble ideals. In India the foundation, thebackground, the life centre is spirituality - the keynote of the wholemusic of national life. Spiritualiity is a repository of noble ideals andthey are essential in preservi4g the rich heritage of our compositeculhrre.

Citizenship Valttes and Quality of lustice 93

(iii) The compositeness of Indian culture is due to the wide and democratic

nature oi th" Indi"tt thought. Indian culture is basically spiritual. It is

eternal law of life "May good thoughts come to us from the entire

universe". Our nation his i 'tradition of sheltering the persecuted and

the refugees of all religious and all nations of the earth'

(iv) Under the leadership of Mahatama Gandhi, our freedom struggle

received its inspiration, courage and moral strength from truth and

non-violenceoutoftheinexhaustiblereservoirofthebasicvaluesof" Satyam" (Truth), " Shianm" (Goodness) and " Sundaram" (Beauty)

Mahatama Gandhi described the following as sins:-o Politics without principle

. Commerce without morality

o Wealth without worko Education without character

. Science without humanity

. Pleasure without conscience

. Worship without sacrifice

(v)Allrounddevelopmentofpersonalityofthecitizeninalltheaspects_intellectual, mental, physiial and spiritual, is a rich heritage of our

composite culture and ii a panacea for all administrative, political and

social ills.

(vi)Arichheritageofourcompositeculfureisman-makingeducationinitiated fromihildhood andiontinued throughout life. A rich heritage

of our composite culture has been the dedication of the individual and

performanceofhigherlawinday-to-daylife.Itmustbereca]ledthatinLur culture right 6om the initial stage of law making,- the-law.consisted

ofdutyanddutiesonly,whichcorrldbroadlybedividedintothreeaspecti-sacrifice, ceremonies and temporal duties (Shrauta' Grihya

ani samayacharike), the last one being referred to as Dharma sautras. As

we became more civilized, the concept of rights became more important

so much so that the rights of the citizens over shadowed the duties of

the citizens.

The foremost are five:

(a) If a citizen commits theft, he is punished with imprisonment or withfine or both; this is law. However, if the cltizen takes a determined

revolve within himself that he will not commit theft even if the whole

world may, this is higher law (Asteya);

(b) If a citizen causes hurt to another person,, he is punished'- lhis i9"!w,However,ifthecitizentakesadeterminedresolvewithinhimselfthathe shall not cause any hurt to anyone; this is higher law (Ahimsa);

(c) If a citizen commits cheatin& he is punished; this is law' However' if


The implementation of such Fundamental Duties require aspiration of thecitizens rather than enforcement or sanction. When at the formatirre

"g" of hf"

such noble ideals are inculcated_ and harnmered upon, and also praitised in

Thus, clause (f) enjoins each constifuent of administration of iustice todevelop his personality all round.

daily life, aspiration to practise them throughout liie wil be ineviiable; it wilrpart and parcel of the nature arrd character of the citizen. Strong

tions of nature and character are laid during the formative period (6 to 17that is when the boys and girls are at" school. It is there that thety is developed and moulded. It is there that man is made.

the citizen takes a determined re'olve within himself that he shall notcheat or deceive anybody; this is higher la w (Satya);

(d) If a citizen takes bribe he is punished; this is law. However, if evervcitizen takes a determined resolve not to take bribe,

""a ".t io gi"'"bribe, even if the whole world may; this is highe r ?aw (Aprigraha); ,,iJ

-

(e) If a citizen o-utrages the modesty cif a woman he is punished, this is law.However, if the citizen takes a determined resolve that he shall arwavslook upon women as his mother, sister or daughter, thi" i, hi;h";-;;(Brahamacharya).

(vii) our culture which is a composite cl.tlture of seaeral cultures,in India is thebest.

(viii) The onslaught of the unhealthy trend to ape the westem method andthe influence on the immature *ind of tne young generati on, ol scenes of,iolences, aices and ourgarity are polruting ii. we"must constantry guardourselves and our children aeainst them.

Dr. Rajender Prasad in his closing dpeech at the Constituent AssemblyNov., 1949) observed;

'.'We haae prooided in the Constitution for a judiciary which will beindependent. It is dfficult to suggesl anything mbre tu make the SupremeCourt and the High Courts independent of the influence of the Executiae.

lhye is y nttempt made in the Constitution to makc eoen the lower judiciaryindependent of any olttside or er.trnneoas influence,, .

The following principles follow from clause (f) of article 51A:r

-Any paid appointment under the Govemment, of a Retired Judge must

be in cons'ltation with the Chief Justice of India and chief Justii of theHigh Court concerned, so that therre is no ,,Looking Forward,, while inoffice.

. Ate^of retirement of High Court & Supreme Court Judges must be raisedto 70 years.

o The services- of retired judges, who may be in good health should beutilised at all levels for clearing arrears.

r Training and orientation programtnes for the fudicial Officers at alllevels at the time of the entry will add to their proficienry.

Citizenship Values and Quality oflustice 95

o Refresher Courses for all the Judicial Officers at all levels at regularintervals will be usefully for their proficiency. Likewise, training camps,for lawyers will improve their proficiency.

r The emoluments of Judicial Officers should be revised according to therecommendations made by the Justice Jagannath Shetty Comrnission.

r Services of Retired Judges should be utilized by appointing therr. ad hocin another district and they should be paid fees per case according tothe classification of the case as may be fixed by the High Court.

Clause (j) of Article 51A provides that "it shall be the duty of every citizenof India to strive towards excellence in all the spheres of individual andcollective activity, so that the nation constantly rises to higher level ofendeavour and achievement".

The drive for excellence would include respect for professional obligationsand excellence. Whatever work the individual citizen takes up, the effortsshould be directed to achieving the goal of excellence. "Excellence" is the secretof all deveiopment and all success and if even brings about union with thedivine. Yogah Knrmasu Knushalam.

japan and Singapore are living examples. It is amazing that Japan stoodup head and shoulders in such a short time after the devastation in Hiroshamaand Nagasaki. The open secret is "Excellence". Every single citizery in whateverstation of life he or she is endeavours and persevers for excellence in his projectbecause right from primary school the word "excellence" is inculcated in themby displaying numerous mottos, maxims and quote, containing the word"exceilence". It is very distressing and reprehensible if an Indian citizenflourishes on adulteration, hoarding, black-marketing or sub-standardproduction. Steep deterioration in work consciousness is degrading.

Clauses (b) - Noble Ideals; (f) - Rich Heritage; (j) - Excellence constitutes aTrioeni, which has the potential to raise the nation to the highest level ofendeavour as may be desired.

Rich Heritage (f) Excellence (j)

The guiding principles that follow from article 51A(b) are:

(i) As laid down by Bane4ee l.In Kewal Chand Mimani v. S.K. Sen, (2001) 6SCC 512 (529), it is the trite knowledge that presently, the law courts are

Noble Ideals (b)

NATION


being guided by a justice-oriented approach, since the concept of justiceis the call of the day and the nreed of the hour, Justice is the goal ofjurisprudence - processual/procedural, as much as substantive.Puritan approach has lost its significance in the present - day context;

' since justice ought to be the end product of equity and go the roots.

(ii) Provisions in Code of Civil Procedures and Code of CriminalProcedures and the High Court Rules should be strictly enforced.

(iii) Before a suit is filed in the court,, a copy of the plaint must be sent by thePlaintiff to the Defendant by Registered Post 30 days in advance, callingupon the defendant to fiie his written statement on the date to bespecified by the Plaintiff in a Notice, so that on the so specified date notonly the Plaintiff will present the plaint but also the defendant will filehis written statement and it is then the court after receivine bothpleading will fix a short date fol framing issues.

(iv) Punctuality should be strictly observed by Judges, Lawyers, Parties andWifnesses.

(v) The judge has to identify in each case, which of the party is interested indelaying.

(vi) The judge has to control effectively the proceedings. The greatestmenace is adjoumment. Every request for adjoumment must be rejectedon whatever grounds it may be made, unless the Judge is satisfied thatrefusal to adjoum would result in miscarriage of justice. However inthat case:

(a) He must record his reason and if, it be not the first occasion ongraniing such adjournment, a copy of the order containing reasonfor adjournment must be forwarded to the Registrar, High Court,the same day.

@) The other party must be awarded full cost of travel and expensesincluding lawyer's fees for the occasiorL even if, such adjournmentis guaranteed with the consent of the other party or his counsefand even if, such adjourrunent is guaranteed, on some personalground of the counsel of the parties seeking adjournment.

If a witness who has been summoned through the court, does not appearand his inability to appear is beyond his control, the party who got himsummoned, must pay the above expenses etc.. . to the other party. If however, thecourt is not satisfied of his inability being beyond his control, the witness mustfrom his pocket pay the above expenses etc. to the other side, and the sameshould be recovered forthwith, by attachment of his property, or otherwise, andthe expenses of such recovery shall also be paid by the witness:

(i) From the Board Diary, a daily c4use list should be drawn up, implicity,in the chronological sequence of the case numbers except where there isexpress direction of the court.

(ii) Each case must be called for hearing, strictly according to the sequencein the daily cause list and the parties must appear at the first call.

Citizenship Values and Quality of lustice 97

No pass over should be granted. However, one Pass over may be

allowed to a Party on the ground that his counsel is on his legs in some

other court. But in that case, if the case has to be adjourned for want of

time on that day, the party which sought Pass over must Pay to the

other party full costs as above.

It is the demand of the iaw that the parties shall speak the truth at every

stage of the proceedings. Pleadings have to be verified as true under order 6 rule

15 aPC. Affidavits under order 19 CPC, Oral evidence under order 19 CPC or inCriminal Proceedings etc. To meet the evil of perjury, the court should not be

reluctant to proceed in suitable cases:

. Written Arguments must be filed in each case after exchanging advance

copy with the opposite party. Thereafter, the court may fix a time limitfoi Oral Arguments in view of the nature of case and the .WrittenArguments filed bY the Parties.

. Each documents, the registration of which is not compulsory under the

law, if presented for Registration a rebate of 25 per cent of the Stamp

Duty should be allowed'

o EveV document when presented for Registration shall be accompanied

by two Photostat copies. The Registrar on presentation of the said

document and the copies shall vary from the parties and attestingwihresses and shall forthwith put his Rubber Stamp of his Registration

and shall sign the same and return the OriSinal and a photocopy to the

parties concemed, while retaining one photocopy for his record'

r The maximum Starnp Duty on a document, not required by the Law tobe Registered, if presented for Registration, shall be Rs. 5,000 (Rupees

Five Thousand only).

. The following proPositions which were laid down in Ral Deo Sharma v'State of Bihar, AIR 1998 SC 3281 (3287) should be incorporated in the

Code of Criminal Procedure,

o In cases where the trial is for an offence punishable with imprisonment

for a period not exceeding seven years, whether the accused is in jail or

not, tire court shall close the prosecution evidence on comPletion of aperiod of two years from the date of recording the plea of the accused on

the charges framed whether the prosecution has been examined all the

witnesses or not, within the said period and the court can proceed to

the next steP Provided by law for the trial of the case.

o In such cases as mentioned above, if the accused has been in jail for aperiod of not less than one half of the maximum period of punishmentprescribed for the offence, the trial court shall release the accused on

bail forthwith on such conditions as it deems fit.

r If the offence under trial is punishable with imprisonment for a period

exceeding 7 yeats, whether the accused is in jail or not, the court shall

close the prosecution evidence on completion of three years frorn thedate of reiording the plea of the accused on the charge framed, whether


the prosecution has examined all the witnesses or not within the sai<lperiod and the court can proceed to the next step provided by law forthe trial of the case, unless for very exceptional reisons to be recordedand in the interest of justice the court ionsider it necessary to grantftlrther time to the prosecution to adduce evidence beyond the aforesaidhme limit.

o But if the inability for completing the prosecution within the aforesaidperiod is attributable to the conduct of the accused in protracting thetrial, no court is obliged to close the prosecution evidence within theaforesaid period in any of the cases covered in clauses (i) to (iii).

. Where the trial has been stayed by orders of court or bv operation of lawsuch time during which thestay was in force shall be exciuded from theaforesaid period for closing prosecution evidence. The above directionswill be in addition to and without prejudice to the directions issued bythis court " Common Cnuse" v. llnion of India, (1996) 4 SCC 33: AIR 1996SCW 2279 as modi{ied by the same Bench through the order reported in"Common Cause" a Registered Socibty v. LJnion of India, (1996) 6 SCC 775:AIR 1997 SCW 290.

Clause (a) of the Article 51A provides that it shall be the duty of everycitizen of India to respect the Institutions of the Constitutiory judiciaiy is one ofthe three principal institutions of the Constitution. Every Judge shouid respectnot only other courts but also his own coutrt.

To recall Dr. B.R. Ambedkar Speech, at the close of the ConstituentAssembly:

"If we wish to maintain democracy, not merely in form, but also in fact, whatmust we do? The frst thing in my judgment - we must do is to hold fnst toconstitutiotnl methods of achieaing aur socinl nnd economic objectiae. It meansthat we must abandon the bloody Methnds of reoolution. It means that weabandon the method of ciail disobedience, non-co-operation and satyngrahn.When there was no way Ieft for constitutionnl methods for achieoing icinomicand social objectiaes, there was a gredt deal of iustifuation for unconstitutianalmethods. But where constitutional methods are open, there can be nojustifcation for these unconstitutiofial methods. These methods are nothing,btrt.the Grammnr of Anarchy and the sooner they are abandoned, the better furus" .

. When the lawyers go on strike for redressal of their professionalgrievances and stall the working of the courts, it is in contradiction toand infringement of the Fundamental Duty enshrined in clause (a). Inconsequence, thousands of cases fixed for the day are adjoumed andthe entire working of the court is disrupted.

o For Redressal of Professional grievances] representalion can be made tothe relevant authorities or to thd legislature. Redress can be soughtunder the remedies provided in article 226 and 32 of the Constitution. Ifat all a public demorutration is felt necessary, a silent rally before or

Remoanl of Supreme Court and High Court Judges 777

President. Strength of Supreme Court was then 7, now it has risen to 25. Prior tothe adoption of our Constitution on 26th November, 7949 under theGovemment of India Act, 1935 a Judge of the Superior Judiciary could beremoved if the Judicial Committee of the Privy Council on reference by HisMajesty reported that he is unfit to hold office on the ground of misbehaviour orof infirmity of mind or body.

In fact a Permanent Judge of Allahabad High Court Justice S.P. Sinha wasso removed by an order dated 22nd April, 1949 passed by the then GovemorGeneral of India, C. Rajagopalachari who accepted the Report of the FederalCourt of India under section 220(2) of the Govemment of India Act, 1935, asadopted by the India (Provisional Constitution) Order, 1947 and the India(Provisional Constitution) Amendment Order, 1948. In this case a petitioncontaining certain charges against Justice Sinha was forwarded by theGovemment of the United Provinces now Uttar Pradesh. He was appointed aPermanent fudge of Allahabad High Court in October, 7944 and the chargesagainst him having been proved, he was removed on 22nd April, 1949.

Thus, before the enforcement of our Constifution, only one case of a HighCourt Judge was successfuliy enquired and by awarding punishment the Judgewas removed. But since the enforcement of our Constitution, only in one casearticle 124(4) was resorted to but removal of the Supreme Court judge could not ,succeed because political considerations crept in.

Currently a debate is going on in the counhy for devising a mechanism tobring errant judges of the superior judiciary to book in order to remove them.

Justice J.S. Verma, the 27th Chief fustice of India favoured a model code ofconduct for fudges and once said, "If we do not question ourselves the peoplemay enact a law empowering somebody else to question us". Within a few daysof his retirement justice Verma spoke about corruption in the judiciary and thefailure of existing mechanisms to establish norms of conduct to bring errantjudges to book.

Judges of Supreme Court and High Courts should always remember, "Beyou ever so high, the law is above you". Everyone is equal in the eyes of iaw. NoJudge can be a law unto himself.

There are only a few judges who do not perform their duties with dignityand bring disrepute to superior judiciary and high constitutional office whichthey occupy. The expectations from our superior judiciary are very high. It isexpected of them that they set high standards of conduct in public andprofessional life. Misbehaviour by a Judge, whether on the bench or off thebench undermines public confidence and credibility in the administration ofJustice.

Justice S.P. Bharucha who retired recently as the Chief Justice of India wasreported to have said in a public function at Kerala that 20% of the judicialofficers were corrupt. Thls inter nlia implied that one out of every fifth Judge wascorrupt. Justice Venkataramayya of Supreme Court on retirement observed,"judges should resist temptations. They should not be seen with gamblers,


punters and economic offenders. What will be a judge's image if he is foundwith such persons". He further said, "A single dishonest judge not onlydishonours himself and disgraces his office but jeopardises the integrity of theentire judicial system".

Former Chief Justice of the Supreme Court E.S. Venkataramaiah bemoaned"Judiciary in India has deteriorated in standards because some of the judges are

willing to be influenced by lavish parties and whisky bottles". Thus he

condemned the habitual "dine and wine judges".

The consultation paper on superior judiciary prepared by the NationalCommission to review the working of the Constitution headed by Chief Justice(Retired) M.N. Venkatachaliah states:

" It has produced some aery brilliant and extraordinary iudges known for theirlearning, integrity and deaotion to law. But there haue been some exceptions

too.and in the recent years morc such exceptions are coming to light. There hns

been, of late, public concern ozter jadges not obseraing working hours, being

away from court work eaen without seeking lwue, unduly delaying iudgmentsand othenlise conducting themselaes in an un-iudge like manner. lt is these

few persons whose conduct calls fur disciplinary system so as to preserae the

fair name of the judiciary.

Such n system will protect those unjustly accused. That apart, the aery

existence of the system utill be a deterrmt and will obointe the need to use it" .

The consultation paper also observes that, "There are some complaintsthat some judges even Chief Justice are not seen to keep a distance from centersof political power which would be conducive to the image of neutrality. It is wellto remember that judiciary ceases to be an effective instrument if its image andreputation for integrity and independence suffer".

The present procedure laid down in the Constitution for removal of aSupreme Court or High Court Judge on the ground of proved misbehaviour orincapacity is cumbersome, unworkable, unrealistic and therefore impossible.The consultation paper also says that, "It has become imperative to checkundesirable and unhealthy tendencies in the judiciary. The present procedure ofremoval is totally inadequate and for various reasons is impractical".

The Commission to review the working of the Constitutioru the DineshGoswami Committee on judicial reforms and other bodies have shessed need foreffective measures to deal with misbehaviour of judges and have also suggestedvarious ways and means to check the growing evil. There is an urgent need forpunitive corrective in the superior judiciary.

Let us hope and I believe it will not be a pious hope that the day is not faroff when High Court or Supreme Court judges will not escape punishment formisbehaviour, corruption or misusing their office. They should be exposed todeterrent legal punishment. I suggest the formation of a Permanent statutorybody with representative of the three wings - Parliament, Judiciary andExecutive to deal effectively with the erragrt judges.

ogDa)

INDEPENDENCE OF IUDICIARY,APPOINTMENT OF TUDGES AND

RIGHTS OF CITIZENSPinki Anand*

. . T\-fogding fathers of our Constitution had accorded the highest place tojustice.. The_Preamble speaks of, ,,we, the people of India,, resolvTng tJ se".rr"inter alia "Justice - social, economic and- pohtical to all its citiz-ens,,. It ispertinent t.o lote the juxtaposition of words and concepts in the preamble.significantly, Justice is placed higher than the other prirrciples of Liberty andEquality. A careful look also shows that social and eionomic justice are givenprecedence over political justice- The independence of judiciary is valued b"y thepeople of our country which is appare.rt from the fact that people fuin tojudiciary in the quest of justice.

^ Justice is to protect not only one person against another but also betweenstate and the citizens. state is in fact a major litilant when it comes to litigation.The judiciary interprets the constitution. At the iame time, it acts as its pritectorand the guardian engine by keeping air other authorities in check so ihat theyremain within their boundaries and do not hansgress over other Constitutionalprovisions. our Constifution envisages there are three essential pillars ofdemocracy, executive, legislafure and judiciary. Each one of them isindependent in its own sphere. The legislature has the final authority formaking law' on numerous occasions, the interpretation by courts striking downprovisions are superceded by the legislature by way of validating laws"whichrenders the decision of the courts otiose. The reaioning behind is power tolegislate is plenary.

- The independence of judiciary is tt.e sine qun non for the very existence ofd:Tq:r1.y.-Blt then the question arises, what is the meaning of independenceof judiciary? Essentially, it means that every judge is totally"free to adjudicate

* Advocate, Supreme Court.

179

matters before him in accordance with his perceptions of the facts and the

."-pt"n"ttt" of law without T{ ilfY:""u'inducement' pressure' indirectly

or directly from any angte. This definition was evolved by the-Intemational

CommissionofJuristsinlgSlandformrlrlatedasArticle2oftheSiracusaDraftPrinciples.Thisconceptwasalsodiscu$sedinthelgthBiennialconferenceofthe Intemational Bar Association held at New Delhi in 1982 where l\e 1t?flpaper of Dr. Shimon was adopted as the Delhi Minimum Standards of Judicial

irri"purdut "". It was accepted thi! Su . 1?d"* concePt of -

judicial-i"J"i""a""""

cannot be confined to individual judges and to their substantive

ur,J p".ro."t independence but must also include the collective independence

of tlie ludiciary ut u., institution' Conceptually the independerce- of judiciary

.ot"ptit"t of "independence of judiciary as an. institutionalized organ and

independence of the individual judges. Thus, twin conditions are necessary to

harrJ ar, independent judiciary. tmpaiUafity is the word for courts' People in any

country would recognize this as -their

answer to their quest of justice. Most

demociatic Govemments can endeavoutr that their judicial systems are immune

from extemal influence which wiil include either governmental source or from

private interest aiz. economic, ethnic and religious Pressure on judges' Judicial'irrdepe.rden." is the soul for the courts integrity and credibility within a

political system. One will have a banana republic if courts are packed with the

y", *un of the respective government$ rendering decisions in favour of their

govemmental heads or on pre-conceived notions due to vested interests. \A/hat is

ihu k"y for judicial independence? How can independence infuse confidence in

the people.'The judiciary is really independent when people have faith that the

judiciary is feariessly and fiercely independent. What is the component of this

independence?

Independence of judiciary may be divided under two broad heads -

Decisional lndependence and Shucfural Independence.

The Citizen nnd ludicial Reforms

A, Decisional Independence

1. Judicial Criticism

2. Public Confidence

3. Judicial Activism

4. Judicial Appointments

5. Govemmental Modification of fudicial Decisions

B. Institutional IndePendence

1. Legislahrre Control Over the Judiciary's Financial Resources

a. fudicial Salaries

b. Appropriations

2. Govemment Control Over the Judiciary's Intemal Administration

a. Legislative Oversight of Judicial Administration

b. Judicial Discipline

Indepenfunce of ludiciary, Appointment of ludges and Rights of Citizens 1g1

|udicial Critcism and public Confidencerecent expansion of the horizon of public

'rterest Litigations (pIL) hasIed to an interesting debate on so.me aspect of independen." 6r ;"ai"i"ry-l rrn

started as.a tool for improving the lot bf the under_privileged and a"fri""Jsection of society including bonded labourers, .r.,iu. t Llr, conditior, ofprisoners in jails etc. by d uting the concept of rocus standi. so far so good.Today, however, PIL have extended to the areas of what were essentialy ,,policvmatters" of the Government. This has become an issue of concem to *t" p"rri'"at large. Policy matters are essentia y to be decided by the Govemment inexercise of its political wisdom. This mandate has been given by the citizens tothe Govemment only. The rendering of judgments on such issues has evokedpublic criticism as it is felt that these decisions are based on political influences.In repeated judgments, the Apex Court has held that restraint on exercise ofjudicial power should come from within. To boost public confidence, this issuerequires coruideration. The other aspect of public confidence lies in the freedomof speech and the freedom of criticism. Fiee and open criticism is one of thestrongest parameters of independence of judges and the yudicial system.Appointment of fudges

" Jo enable the supreme Court and the High courts to discharge theirfunctions impartially, without fear or favour, the Constitution Jontainsprovisions to safeguard their independence. The judges of these courts areappointed by the Executive after consultation with those most comDetent toadvise on the subject. once appointed, the judges hold office till they ieach theage of superannuation fixed by the Constitution and thus theii tenure isindependent of the will of the executive. A special procedure has been laiddown for removing the judges on the ground oi incapicity or misbehavior. Thesalary of a judge cannot be reduced during his term of office and his conductcannot be discussed in any house except when a specific motion for his removalis being discussed. The constitutional provisions ionceming the judiciary go along way in establishing within the country a govemment according to law.-

The 14th Report of the Law Commission of India regarding theappointment of judges is worth recalling. ,,The services rendered by judgesdemands the highest qualities of learning, training and character.

'Thise

qualities are not to be measured in terms of pounds, ihillings and pence andaccording to the quality of work done. A form of life and conduct far more severeand restricted than that of ordinary people is required from judges and, thoughunwrittery has been most strictly observed. They are at once privileged aidrestricted. They have to present a continuous aspect of dignity and conduct,,.Debate in the Constituent Assembly

- It is not surprising therefore, that the composition of the Supreme Court,the qualification of its judges, their salaries, allowances and pensions, and theircomplete independence from the executive received anxious consideration inthe constituent Assembly. Prof. K.T. shah rnoved an amendment about thesupreme Court and then about the High court judges which in substanceprovided that a judge on ceasing to hold office should be disqualified to hold

182 The Citizen and lndicial Refotms

any office under the Govertment of the Union or of the States' This amendment

;i",t"g ;;6."-" co.t,i lttdges was opposed by Dr' Ambedkar in the

following terms:

"The ludicinry decides cases in which the goaernmmt has' if at all' .t'hz

remotest interest, m fact no intetest at all' Thejudiciary is engaged in deciding

the issue between citizens and uuy rnrely between citizms nnd the Soaernm-ent'

Consequently, the chances of iiftueniing the conduct of a member of the

judicinry by the goaemmmt are oery rcmote, ' "'

The judges are appointed by the President of India' While appointing the

Chlef JusiiceJthe President has consultation with such of the judges of the

S;;;;" Court and the High Courts as- he 1ay deem necessary' In case of

;;;;i-; of other judge;, the President is.iequired to consult the Chief

JrlJtice of India though he-may also consult such other iudges o-f the Supreme"court

and the High courts as he may deem necessary. The President's power to

appoint the judgis is, however, purely formal for.he acts in this matter' as tn

oilie. matteis oi the advice of the Cabinet. The effective power in this behalf

restswiththeLawMinister.InGreatBritain,thejudgesareappointedbytheCrown which means the executive of the day, without any kind of limitation. In

the USA, on the other hand, the President appoints the Supreme Court iudges

with the consent of the Senate.

However, the framers of Indian cOnstitution saw difficulties in both these

methods and so they adopted a middle path' The English Method appears to

give a blank chuqn" io thJexecutive whlle the American system is cumbersome

Ind involves the possibility of subjecting judicial apPointments to Politicalinfluence and preszure. The indian method neither give an absolute authority to

the executive nor does it import influence of Parliament in the matter of

appointment of judges.

The practice in India hitherto has been to appoint the senior-most judge of

the Supreme Court as the Chief Justice *henever a vacancy occurs in that office.

The Liw Commission has however criticized this practice on the ground that a

Chief Justice should not orily be able and experienced judge butalso- a

compeient administrator and, therefore, succession to the office should not be

regulated by mere seniority. The govemment is however reluctant to give up-the

rJe of seniority in appointing the Chlef Justice lest it should be accused of

tampering with the independence of judiciary. But a mechanical adherence to

the rule ai times results in the Chief Justice holding office only for a few months

before he retires from the courts.

This issue was considered in the fdmous supreme Court Adaocate-on-Record

v . llnian of India, the 2rtd Judges-Transfer case. The judgment rendered by Justice

verma, the then Chief Justice, upheld the primacy of chief Justice of India in the

matter of appointment of judgei of the Supreme Court and High Courts and in

the matter of transfer of High Courts Judges/Chief Justices'

The provision in Article 124 (2) enabling consultation with any other

judge is to provide for consultation in the matter of appointment and transfer ofjudles. fhe Constifutional Bench held that the process of appointment of iudges

Independence of ludiciary, Appointment of Judges and Rights of Citizens 1g3

to the Supreme Court and High Courts is an ,,intetrated participatoryconsultative process'/ for selecting the best and most suiti'ble p.rior, u.,r"it"ut'ufor appointment. To ensure independence of judiciary, the Conititutional Benchlaid down norms and guidelines to be folowed in lhe case of appointments/transfers of judges. some norms laid down by the Hon,ble Benci are initiationof the_proposal for appointment in the .use of Srrpre-e Court must be by theChief Justice of India and in the case of High Couris by the Chief Justicu oi th"tHigh Court.

In the event of conflicting opinions by constitutional functionaries, theopinion of judiciary ("symbolrzedby the view of the chief Justice of India") andformed in the manner indicated, has primacy. No appointment of any judge tothe supreme Court or in High Court can be made, unless it is in conformiff;iththe opinion of Chief Justice of India.

In exceptional cases along for strong cogent reasons, disclosed to the ChiefJustice of India, indicating that the recommendee is not suitable forappointment, that appointment recommended by the Chief Justice of India maynot be made. However, if the stated ,easons are not accepted by the Chief justiceof India and the other judges of supreme court who have been consulted in thematter on reiteration of recommendation by the Chief fustice of India, theappointment should be made as a healthy convention.

Appointment to the office of Chief justice of India should be of the senior-most judge of Supreme Cowt coruidered fit to hold the office.

In making all appointments and transfers, the norms indicated must befollowed. However, the same don't confer any justifiable right in any one.

Only limited judicial review on the ground specified earlier is available inmatters of appointments and hansfers.

The initial appointment of a judge can be made to a High Court other thanthat for which the proposal was initiated.

Termination of Judges

- In India, both the Supreme Court and High Court Judges are appointed bythe President under Articles 724 and 217 , and they enjoy a fixed tenure and areremovable under Articles 124 (4) and 217 on proved misbehaviour or incapacityafter an impeachment motion passed by each house supported by a stipulatedmajority. Their tenure and different process of removal are also in tune withtheir independent function.

The Primary basis of judicial independence in United States is theprotection guaranteed to judges under Article III of the Constitution whichcreates a federal judiciary. Article III provides that the federal judges will holdtheir offices during good behaviour and that they will receive for their services, acompensation, which shall not be diminished during continuance in office.

Article II, of the Constitution provides that Civil Officer of the United Statesand Judges are considered to be among these - can "be removed from office onimpeachment for, and conviction of, treasory bribery or other high crimes and

1 84 The Citizen snd ludicial Refotms

misdemeanours." Impeachment is a formal process of adjudication by the

Congress that requires agreement by both houses'

The impeachment power has been used sparingly since-the creation of the

iudiciarv. and used solely to remove iudges for various torms ol Personar

';i':;;,1.;. i"li""J *i.t impeachm'ent case 1805' Congress came close to

impeaching Samuel Chase, a politicatty out spoken Supreme C.ourt justice' on

the basis olf allegation that his sutsStantive decisions were polltrcally olaseo'

However, impeachment faileci.

The experience with the removal Pr'ocess inJustice Ramaswami's case has

shown the ilear fallibility in the constitutional frame work' Time has shown

that the judicial system is not beyond rapproach'.Aspersions have been cast and

.h".g", irurr" been levelled. The current ionstitutional frame work has proved to

be toially inadequate to deal with removal of judges. Some effective frame work

t,u, to u" provided. Either the constitution provides for removal of judges or it

does not. if it does, which undoubtedly the Constitution envisages, the power

must be capable of being exercised effectively'

Justice P.N. Bhagwati, former Chief Justice of India has suggested that

there should be a J-udicial Commission for appointments, transfer and

promotiors of the High court and supreme Court Judges. The Commissioncan

irave the Chief Justice of India as its Chairman and one or two retired Chief

Justice, a sitting iudge of the Supreme Court, a Chief fustice of the High Court'

ih" Lur" Ministei, the Speaker of Parliament, the leader of the opposition and the

Deputy Chairman of the Rajya Sabha'

The Law Commission of India chaired by Justice D.A. Desai in its 121st

Report has also suggested for the establishment of a National JudicialCommission to serve as a consultative body in the matter of appointment of

iudges to the supreme Court and High Courts. The Law Commission has

expiessed the view that the power to appoint a judge which today vests in the

President of India would continue to vest in the President of India. The power

has to be exercised under the new dispensation in consultation with the

National Judicial Commission. The Law Commission suggested suitable

amendments in the constifution for this purPose'

The recent report of National Connmission to Review the working of the

constitution has recommended overhauling the judicial system. It has inter alin

recommended (a) a National Judicial Commission for appointment of Judges, @)

mechanism of a committee of Judges for examining cases of deviant behaviour

against Judges and suggesting remedial action including removal'*

The current experience on the qtrrestion of apPointment and removal of

judges has shown thit the system has not been able to function efficiently. There

ire-mo'nting vacancies in appointment of judges in various States. The Law

has written to the Chief Justices to forward names. As of now, it is on

t of failure of Chief Justices to forward names that the vacancies are

lndependence of ludicinry, Appointment of ludges and Rights of Citizzns 1g5

rising' According to the Law Minister, as on lanuary 2001, about 1g0 posts werevacant and in more than two-thirds of those vacincies, the Ministry t u" .oireceived the first recommendation from the High couit collegiums. obviouslv.the-system requires drastic change. Whether tfe National Ju;ici;J a;;il;J;with the proposed structure or modified structure will serve the p"rp;l;ih"subject of debate.

Financial Autonomy

. .. .Independence oI judiciary -is

a sine qua non of democracy so long as thejudiciary remains distinct froS both Legislature and Execud,Je. nur"itry tn"judiciary in India does not have its own budget and source of inconie. Itdepends upon the union Government and state-Govemments as the case maybe, for funds, salaries, perks and other developmental issues.

Though the judiciary generates revenue through Court Fees and othermiscellaneous duties but it is grossly insufficient to meet the budget of thejudiciary.

During the last 50 years after independence, scarce attention has beenpaid by the Government for improvement of judicial infrastrucfure. l,ess than1% of the Gross Domestic Product (GDp) is appropriated to judiciary ascompared to united states or united Kingdom, where ludiciary has -o." ih".,3% share in the GDP of their economy. In a project, ,Deteiminants of theIndependence and Impartially of the Judiciary', following recommendation wasmade after 4 years' research into the political, economic organizational andsocio-culfural factors that determine the functioning of the fudiciary and anaccess to justice in India, the Philippines, sri Lanka and Burkina Faso. one ofthe recommendations to contribute toward the solution of problems of the legalsystems, it is absolutely necessary that fund for the Judiciary are increaseddramatically. The target of Philippine supreme court, 2.so/o of the annualgovernment budget, may serve as a generally recommendable standard.Preferably these funds should come through fixed, structural and automaticappropriation, without any condition attached. There is dearth of courts andjudges and of buildings bothfor courts and judges, officers and staff. In severalcabes, even minimum facilities have not been given. The reason is that there isno planning and proper budgeting of the courts requirements in consultationwith the judiciary as is done in other countries. Nor is there long-range plan orat least a Five Year Plan. The result is that Court Dockets are over burdened wlurcases on Civil and criminal side. Delay results in serious infraction of right tospeedy trial and to violation of human rights in various cases.

The judiciary has a vital role to play in l_ndia specially where the gapbetween the haves and have-nots is wide. people are illiterale. The state L amodem welfarian State to safeg'ard the interest of poor, backward anddowntrodden as well as the interest of the common masses where the iudiciarvneeds to bg strengthened. More funds are required. planning commission aniFinance commission must allocate sufficient funds from national resources tomeet the demands of the state fudiciary in each of the state. There must beadequate provision of salaries and other remuneration for the judges andofficials of iudiciarv.


Recently, the Supreme Court dealt with issue of remuneration of iudicial

officers who are appornted by the government ,in the lower iudiciary'

i.^ria"ri"g that the finanJat lriptlcat5n was 17o of the G'D'P' out of which

half of the amount is lecovered from coult fees itseu, yet the Eovemment$/as not

t"..r to increase the salaries of iudges' The irony was that a stenographer-was

*"itin* *o." pav than the Piesiiing Judge' The insensitivity of the State

a;;;;il io judiciuty *u, upputJnt' This was criticized by the-Supreme-o.rit t otair",g ttrat paiciit impr&ement was n9t T the priority list of the State

Co,r"*-"ntr" all tver the country' Judicial administration suffers from

Jeficiencies due to lack of proper plarrring and adequate financial suPport

establishingmorecoultsandtoprovideadequateinfrastructure'ItcameaSashock to *! th"t for decades .orlitt *hi"h diJperue iustice were not provided

;ith ;y funds under the Five-Year Plans nor has the Finance Commission

been maiing any separate provisions to serve the financial needs of the courts.

IthasbeenrecommendedtosetupaJudicialCouncilatthehighestleveland Judicial Councils at each State at ihe level of the High Court' A- separate

admlnistrative office should be set up to assist the National Judicial Council

arrd sepa.ate administrative office be attached to Judicial Council in States'

These Lodies must be created under Statute which should be made by the

Parliament. The Judicial Council can thtrs be made incharge for preparing plans

both for short-term and long-term arrd for preparing armual budgets'^The

proposalmustbeinregardtotheneedofSubordinateJudiciaryintheStateiuf,iLn t pti^ury foundition for people who go to courts for seeking iusti.":.fr9budget should

'be submitted to the state executive and should be finalized

betieen the State ]udicial Council and fJre State executive and then presented to

the State Legislature.

There is also a growing concem that the Government of India should not

throw the entire buiden o? establishing and maintaining the Subordinate

Courts, the subordinate Judiciary on the state Governments itself. The

Subordinate Courts in State Governments also adjudicate upon tenffal Laws

and thus there is a corresponding obligation upon the union Govemment to

meet the expenditure for the Subordinate Courts. Planning Commission and

Finance commission must allocate sulficient funds from national resources to

meet the demands of the State Judiciary in each of the States. Shetty Commission

had recommended that 50% of the financial burden should be borne by the

central Govemment. In the supreme court all the state Governments argued

similarly which was rejected by the 3"1udge Bench. The lethargy of the state

Goveminent was thus apparent. In the Chief Justice's Conference in September,

1992 and in November, i997 resolution was passed-that the Chief |ustice of a

High Court may be accorded power to spend appropriate_and re-appropriate

mdrey within the budget allocation in respect of the High Court and the courts

undei its control after ieeping govemment informed. In December, L999, itwasresolved in Chief Justice'r Cotri"t"tr." that the High Court should be given fulI

autonomy for independence of the judiciary.

Again considering the population of our country, $e judge strength is

absolutiy inadequate r6sulting lr,ludicial delays. We have poor ratio of number

Independence of ludiciary, Appointment of ludges and Rights of Citizens t z

gf ilages. to lumber of people. Even today there has been no improvement. hr All

hdia Judge's case presided over by Justice Kirpal, directions have been given toincrease the strength of the judges so that the inadequacy in the nui.ber ofcourts and to increase the infrastructure facility to give iome semblance ofbalance to the people-judge ratio.

Another school of thought says it is pointless to appoint nurnber of judges.The issue of appointrnent is more competent judges should be appointed. ihisview was supported by the report on Arrears Committee co.tstifuted by th"Govemment of krdia. How the arrears can be brought down has to be viewed byeach High Court independently as each High court in different states havedifferent problems. One uniform method is, however, altemative disputeresolution. Settlements can take place through Lok Adalats. Adjoummentsshould not be granted in courts and trials should be conducted dav-to-dav.Judges disposing more matters can be brought under incentive scheme and thequality of work can be under scrutiny by superior court judges and by reputedsenior counsels,

Recently, the Supreme Court had come heavily upon the High Court whenit found that judgment was not delivered for few years and it was delivered onlywhen one of the judges had to retire. The Apex Court has now formulatedguidelines how judgment should ordinarily be delivered and how the ChiefJustice should formulate a procedure which is circulated in the cause list also. Ifthis is the state of affairs in the High Court, one is terrified to imagine the plightof subordinate judiciary which is under direct conhol of each High Court.

The National Commission to Review the Working of the Constitution hasinter alia recommended setting up of judicial councils for financial planning andpreparing budgets for the courts at the Apex and High Court levels. Budgets forsubordinate courts may also emanate from state/judicial councils.*

Democracy actually comprises of the rights of citizen in the State. Ideally,Democracy should be rights 'of the citizens', 'for the citizens' and 'by thecitizens'. Through the course of 50 years of independence, however, it appearsthat the emphasis on the rights of citizens has been sidetracked. The decline andstagnation of the judicial system has led to dilution of the rights of the citizens.Mounting arrears of cases amounting to almost 2 l5 crores in the subordinatejudiciary, time gap of about 10 years for the disposal of trials, few years fordisposal of appeals, lack of public confidence in the judicial system have erodedconfidence in the system. Confidence in the judicial system has to be restored,Judicial reform is the need of the hour.

Some suggestions on citizen's rights for free, fair, speedy and impartialtrial are

r Judges of high calibre, integrity, merit and wisdom to be appointed.. Appointment prqcess to be free from interference from political or other

quarters, and transparent.

* For recommendations of the Constitution see Annexure to Chapter 1.

188 Thz Citizen and ludicial Mortns

. 'Transparent system of accountability of judges"

. 'Higher expenditure on iudicial structures.and on development of

alte"marive mechanism for resolution of disputes"

. 'Clearing backlog of cases''

. 'Financial autonomy to the judiciary"

t 'Long-term planning for financial allocation"

r Effective system of dealing with complaints agairut judges'

. Open and fair criticism of the iudlcial system'

. Accessibility of justice to all'

C€&)

QUALITY OF IUDGESS.S, Vishweshwaraiaht

In a country govemed by a written Constifution, the constitutionalmandates should prevail since the Constifution embodies the Supreme Law.Consequently, the Legislature, the Executive and the Judiciary are obliged tohonour and foster the constifutional mandates enshrined in the Preamble whichencapsulates the dreams, the ambitions and the. aspirations of the People ofIndia. The Preambular Dictates, inter alin, are:

Justice, Social, Economic and Political;

Liberty of thought, Expressiory belief, faith

and worship;

Equality of status and opportunity.

The Doctrine of Separation of Powers, Rule of Law, Judicial Review, ln feralia, have been declared to be the basic feafures of our Constitution which arebeyond the pale of amendability. Here, the character, compositiory integrity andftinctioning of the Judiciary assume significance.

Judiciary can function effectively when the presiding officers arecompetent and are persons of unimpeachable integrity and are assisted by ableand honest officers of the courts, namely, the advocates. It is submitted that byand large the quality of legal education being imparted in the country is ratherpoor. Such "poor" officers of the courts cannot ensure that the system ofadministration of justice functions effectively. Thus, incompetence and delay areintertwined. Unless this is taken care of, the adage "Justice delayed is justicedenied" will ruie the roost. The constitution of an All India Judicial Service andan independent effective training academy comprising of jurisprudent expertsin the area of constitutional law and eminent lawyers for imparting pre-serviceand periodic in-service training might be quite useful. Further, in view of thepoor quality of legal education available in the law colleges, the eligibility

* Chairman and Dean, FacultyKarnataka.

ol Law, Karnataka University, Dharwad,

189


criterion, inter alia, relating to the number of years of practice at the Bar should

be raised, by at least, a couPle of years.

In the lower courts, the rules of the courts dictate that judgment, ordersshould be pronounced within fourteen days after the arguments are concluded.

In practice, even after arguments, the Presiding Officers do not pronounce thejudgments. This has, to be investigated to minimise "law's delays" so thatcorrective measures can be adopted and implemented.

Presently, an advocate who has practised only on the criminal side maybecome eligible to be appointed as a District and Sessions Judge. It is, therefore,necessary for infusing confidence in the litigating public that the District Courtbe bifurcated as under. District Court (Civil lurisdiction) and District Court(Criminal jurisdiction).

Judicious Employment of modem cemputer and information technology,requirement of the submission of written Memoranda/ Briefs Declination togrant adjournments unless substantial and genuine grounds are establishedwould infuse greater conlidence in the Courts of Law.

Discussions with the litigating public, lawyers and others indicate thatself-policing by judiciary, at various levels, is wholly inadequate. It should benoted that the Doctrine of Separation of powers supports the Independence ofJudiciary. Rule of Law reinforces this view. Judiciary should be independent sothat it can be impartial and this impartiality is influenced by the integrity andincorruptibility of the judges. Both impartiality and integrity would be washedout when corruption contaminates the judiciary.

Public perception of Judiciary would improve if judges of the High Courtsand the Supreme Court file their Income tax retums, declare theirhonestly every year and are engaged in the disposal of cases over aperiod in a vear.

assetslonger

The courts have ruled, repeatedly, that Justice should not only be done butalso should be manifestly and undoubtedly seen to be done. Televising iudicialproceeding at all levels, except in exceptional cases, may, probably, improve theperformance of all the actors in the system of administration of justice.

c6&)

Part V

AourNrsrRATroN or ]usrrcE

PROBITY IN ADMINISTRATION OF TUSTICEP.P.fiao*

Administration of justice is one of the functions of the State. Legislation ismade by the legislature. The executive implements decisions the legislaturetakes and the judiciary resolves disputes. Today, the biggest litigant in all courtsis the State - the Central Government, the State Governments, a number ofGovemment corporafions, statutory authorities and local bodies. Criminalprosecutions are conducted by the State Prosecutors. Therefore, the State is verymuch present in every aspect of judicial administration.

Previously, the Constifution was understood to mean that the power ofappointment of judges was with the executive, but the power should beexercised in consultation with the iudiciarv. In course of time, the SupremeCourt changed its view in the second judges" case and laid down that judges arebest suited for selecting candidates for judgeship and the role of the executive isminimal. So, the judges made the selection. If the executive has something to sayabout the choices made by the judicial committee or the collegium as you call it,then there will be interaction behveen the judiciary and the executive and formalwarrants of appointments are signed by the President of India. That is so far asHigh Court judges and Supreme Court judges are concemed. Lower dowrywhen you come to subordinate judiciary which comes in more contact with thecommon man and deals with more number of cases, the appointments areIargely in the hands of the High Courts concerned. Even the disciplinaryjurisdiction is with the High Court. In the case of subordinate judiciary,disciplinary action on the ground of misbehaviour or misconduct is possible.But the misconduct has to be proved in an inquiry. The problem with questionsof probity is this. We know who is an upright judge, who is a judge of a doubtfulcharacter. But we cannot establish lack of integrity in an open inquiry. When acase of a political leader was being argued, Chief Justice Bhagwati waspresiding over the bench. He said that he had come across a judge who receivedoffers from both sides. And he wrote a correct judgment in law and accepted the

* Senior Advocate, Supreme Court of Lrdia.

193


offer which was consistent with the judgment and returned the money received

from the other party. It is very difficult to catch this man. He writes an absolutely

correct judgment. He is a very intelligent person. His appreciation of law is good

and the reisoning is sound. The appellate court cannot interfere. With such an

impeccable judgment, how do we say he is corrupt' But people knew that he

*ui "ot..rpf.

This was ]nis modus opnandi, Today, this asPect of corruption has

assumed i certain magnitude where even the Chief Justice of India has started

feeling that he has to speak about it. In December, opening the shop of lawy, ers

in Kerala, the Chief Justice had these words to say: "In my opinion, more than

80 per cent of the judges in this countfy, across the board are honest and

incorruptible. It is that small percentage that brings the entire judiciary intodisrepute. To make it known that the judiciary does not tolerate coffuption in its

ranki, it is requisite that corrupt judges should be investigated and dismissed

from service. This is possible in the case of the subordinate judiciary because the

disciplinary control lies with the High Court. It is difficult where higherjudiciary is concerned because the only recourse in law is impeachment whichis a cumbersome process and which, as a recent instance showed, may notachieve the desired result for reasons that are political. The Supreme Court andthe High Courts have attempted to evolve an informal procedure to meet the

situation but it is yet to be tested." Although the Chief Justice of India is verycategorical that it is possible to dismiss corrupt officials of the subordinatejudiciary, one is not sure about it. It is very difficult to establish in the

departmental proceedings that a particular judge is corrupt. So, time has come

when we have to think of a provision for termination of service of any judge ofdoubtful integrity. Whether he is a superior judge or a subordinate judicialofficer, it does not matter. kr the case of suhordinate judicial officer, in the service

rules there is a provision for premature rdtirement, doubtful integrity being one

of the grounds. But that is possible only after he completes the qualifying periodof service which may be 25 years or 30 years or attains the age of 55 years or 50

years. That means, till that time, we have to suffer him. \A/hy should dre societysuffer a man of doubtful integrity? In the judiciary, you cannot afford to havepersons of doubtful integrity because the basic requirement of a judge ishonesty. When a Lord Chancellor was a$ked what are the qualities we shouldloo\ for in a candidate for judgeship? He said, 'honesty. And if he knows somelaw, still better.' Therefore, honesty is the basic thing that is required and today,this seems to be rare a quality. One more thing we have to keep in mind judgesdo not drop down from Heaven. They come from the bar, that is the lawyers.Unless lawyers lend a helping hand, it is not possible for a judge to becomecorrupt. And we know it for a fact that in our own fratemity, there are some

members who unforhrnately indulge in this kind of a thing and some of thembuild up a reputation that they can get a favourable order from a judge. Therehas to be an effective mechanism to check these things. It requires thecooperation of the bar as well to contain corruption. Fortunately, this diseasehas not spread in the judiciary to the same extent as you find in the otherspheres of public activity.

ogER)

PENDENCY OF CASESP.K, Dave*

The subject is vast and has been extensively written upon by eminentscholars and practitioners. The Law Commission of India has contributed ideason the subject in its Reports, of whicll one of the earliest, the XIVth in the 1950s,still holds the ground. There is an important contribution on "Judiciary andJudicial Reforms" by former Chief Justice J.S. Verma. Sri Verma lists a number ofconcrete measures and effective remedies for serious consideration andimplementation.

A fact that hits one between the eyes is the pendency of cases in the HighCourts and more in the lower courts, estimated at around three crore. A'guesstimate' places the time required for disposal of this massive pendency at150 yearsl Some measures have been taken to reduce this pendency by arbitrarybut fully justified steps, for example to discharge long pending cases not evenbrought to court; to increase the number of judges and magistrates, increase thepecuniary jurisdiction of the lower courts, and so on, but the impact remainslittle.

We have of course various suggestions to deal with the problem, the firstbeing to fill up the vacancies that are phenomenal. The action taken so far toimprove the situation seems to be totally inadequate and quite inept. Then, thereare radical suggestions to meet this exceptional situation, like the one formultiplying the judiciary 150-fold if the rate of disposal of cases remainsunchanged.

First, the suggestion for the appointment of 'special' or 'honorary'magistrates on short-term basis for trying petty crime cases that clog up the

f ustice system. The Venkatchelliah Commission has also favoured theappointment of experienced lawyers as honorary magistrates for the trial anddisposal of less serious and petty cases.

+ IAS (Retd.), Former Lt. Governor of Delhi.

195

196 The Citiz.en and ludicial Reforms

The involveme nt of Nyaya Panchayats in rural areas and of honorary or lay

magistrates in the urban areas, needs tO be consideled in all its aspects and

intr-oduced as early as possible. In the U.K. such lay courts have been used very

successfully for a iong time and have been handling well over 957" of the total

criminal cises, mainly the minor criminal offences. The regular stipendiarymagistrates only deal with serious crimei These lay courts comPrise benches ofthrJe honorary judges, given training in the basics of court work and also

provided w-ith the services of a trained court clerk. They may sit for two or three

days in the week and if the Pressure of work requires, there could be twobenches in a police district. But the emphasis on the use of experienced lawyersfor this work seems unnecessary. A common well educated Person, an activist ofa NGO, or a retired civil servant or arrny officer, professionals from trade andindustry could all provide the personnel for the lay courts. A fair number mayalso be found for lhe Nyaya Panchnynts.

Considering the tremendous load of pending cases, apart from any othermeasures like increasing the number of judges, training them and putting themunder strict administrative superintendence, perhaps a large contribution canbe expected from the benches of lay magistrates not only for reducing the largenumber of pending cases but also streamlining the justice system.

A very important aspect of reform that will imPact on the functioning of '

the law courts, is the separation and professionalisation of the investigativemachinery and placing it under an indqpendent Director of Prosecutions, notconnected with either the police or the executive govemment. In the prisoninchoate form it is more a hindrance than a help in providing speedy justice.

Finally, one wonders why with public credibility eroded, corruptioncreeping in, and judges high and low dissatisfied with the systems and theservices available, and further, with the directions of change widely understood,neittrer the highest court, nor the jurists and the Bar, nor parliament nor even thepolitical leadership has moved to deal with a malaise that has reachedgargantuan propor tions.

(,5&)

TECHNOLOGY AND TUSTICEP.V. Indiresan*

The Nature of fusticeThe pithy phrase from the Bhagavad Grta - Paritrnanaaya saadhunanm

ainashayachn dushkrutaam - is as good a definition of justice as any. In the finalanalysis, all judiciai systems will inspire respect and confidence to the extentthey satisfy these two basic criteria enunciated by the Gita.

Admittedly, the Indian judicial system falls short of this norm. Theconviction rate in criminal cases is said to be less than seven per cent, iess thantwo per cent in some states. Cases take so long to conclude thit many witnessesdie before the trial concludes. Even otherwise, either because of fear of reprisalfrom criminals, or due to monetary and other inducements, many witnessesretract their evidence. The laws against perjury are so lax that they can do sowithout incurring any penalty. Increasing number of persons with criminalrecords are entering the legislatures. Some ale even known to have becomeministers in charge of judicial functions. As Gunnar Myrdal pointed out longago, India has become a soft state with little respect for, or fear of, law. In largeparts of the country, the writ of the criminals prevails more than that of thejudiciary. At the same time, several hundred thousand undertrials arelanguishing in jails for years, often for periods longer than the maximum periodof imprisonment in case of conviction.

The state of affairs in civil cases is no better. Proceedings.go on and on foryears/ even decades without reaching a conclusion. Provided one can affordclever lawyers, there is little need to fear the consequences of the law. On theother hand, the poor, the non-influential have little expectation of securing theprotection that the law is supposed to provide them. Exasperated by this state ofaffairs, the Supreme Court often intervenes directly in relatively hivial cases.That is like a general taking a rifle in his own hand, and shooting at the enemy

* Former Director, Indian Institute of Technology (IIT), Chennai and currentlyHon. Visiting Professor, Centre for Policy Research, New Delhi.

197


because his own soldiers are incompetent. That may be of some use in an

individual incident or two but it cannot win the war. Likewise, the supreme

Court taking over the functions of a magistrate's court may help in a- f9w

individual c-ases but that cannot win the war against injustice. tn brief, the

Indian legal system has become so ineffective that it can be said with some

iustification that the exhortation of the Gita oPerates in reverse: pnritraanaaya

dtrshkrutanm, oinaashaay acha saadhunaam !

It must be said to the credit of the judiciary that many of them have been

expressing deep concern at the state of affairs. Several Chief Justices of Indiahave introduced useful reforms that have mitigated the situation somewhat' Yet,

as judges themselves have often complained, the situation is not happy, needs

ftirther improvement.

Weaknesses of the Indian Judicial System

It is widely acknowledged that there are many weaknesses in the Indianjudicial system. Some of them are:

a. Delays are endemic.

b. The law has become very cor{rplex. Even experienced judges find itdifficult to keep track of all of ib ramifications, or check their misuse byclever lawyers and cleverer crooks.

c. Dr.re to the large gap between what lawyers can earn and judges arepaid, not enough talented persons are forthcoming to join the bench.

d. Technology itself creates newer and newer problems - for instance,often it harms the environment. It introduces new complications thatresult in imponderable benefits and injuries to different parties.

The first three defects are linked to one another. Delays are caused bycomplexity, which in turn is made worse when judges are not the mostcompetent or experienced. In returry the tendency to delay matters provokes theimposition of complex regulations. That makes it difficult for even competentjudges to disperse justice effectively.

Technology for Empowerment

From the dawn of civilisation, technology has been used as a tool toenhance human capabilities. TechnoloS/ can empower people to operate faster,better, and even perform tasks that wortld be impossible without such aid. Nowthat it is conceded on all sides that the Indian legal system needs help toimprove, can technology come to its rescue in any way?

In a way, technology can be compared to a loudspeaker, which makes thefeeble sounds of an individual to be heard by thousands, or to a broadcastsystem, which can enable peopie located in far-hung areas to hear and see wellbeyond the normal human range. Such devices do not create the sounds thespeaker produces, nor do they create the events that are seen in million ofhomes. They, merely, enhance commuirication. Likewise, technology cannot beused to create justice but it can be used to expand the scope of whatever justiceis available. Hence, technology cannof replace good iudges. It can, however,

Technology and lustice 1,gg

empower relatively weak judges to function as well as good ones do. It can alsoextend their sway.

At the same time, advances in technology create new problems of theirown. Every new techriology poses new challenges to the legil fraternity. Newtechnology creates problems like comparing oranges with apples. Matiers aremade worse because technology changes rapidly - before one of them isassimilated, another replaces it. Thus, the problems created by technology arenot only novel, they are changing all the time.

Delays, Laws' Complexity and |udicial Inexperience

Delays occur mainly because of procedural complications. According tothe Indian Constitutiory courts can only according to procedures laid down bylaw, and not according to the conventions of the Rule of Law. That offersunlimited scope for the bureancracy to make rules complex. Such complexityoffers full play for lawyers on both sides of the dispute to hold up proceedingsinterminably. Hence, where powerful people are involved, cases do notconclude even after decades. At times, we blame the Roman System of Law.However, in the United States whose letal system too is based on Roman Law,judicial proceedings are much faster. For instance, a couple of months ago,Messrs Anderson, one of the most powerful and repu ted accounting firms in theworld, was involved in professional malpractice. The case has already beenconcluded and sentences have been handed down. In contrast, the HarshadMehta case dragged on for over a decade and ended only because he died.

Judicial delays in India can be attributed to three main causes: (a)Complexity of the regulations, (b) misuse of judicial processes by lawyers, and(c) laxity of the judges. Technology can be devised to mihgate all three evils.

The Computer as Aid to Dispensation of JusticeModern day computers have extraordinary capacity to sift essential details

out of vast data. Satelhte photography is a classical illustration of this ability.Even if the desired object is camouflaged, or buried deep in the earth, there aretechniques that enable computers to identify and isolate the needed information.Without such techniques, mineral prorpe.[i.,g will be impossible, nor will it bepossible to predict weather as well as we do. Similar technology is used in spaceexploration, in controlling air traffic or pinpointing tumours in the brain. In allthese cases, millions, even billions of data are processed to unearth nuggets ofinformation.

Some attempts have been made in this direction for legal cases too - where,the sifting of data is, theoretically, less complex thary say DNA analysis. Yet, notenough has been done in developing the required search and analysis tools. Inthis respect, it is not enough to compile case histories. We need tools to classifythem, compare them, identify the roots of the arguments of each case, and evenmake comparisons of the issue at hand with those settled in the past. When thatis done, an inexperienced magistrate sitting in a small town in Madhya Pradeshwould be empowered to sift thousands of cases, and correlate them in a matterof minutes as well as top legal experts in the Supreme Court. Thery whenever

2OO The Citizen and ludicial Reforms

legal counsel raises an issue, the magistrate need. not adjourn to ponder or

reiearch the case. Not only authorised interpretations and past Precedences,

even the logic of their applicability could be obtained in no time at all'

As the sifted information will be available to al1 parties, counsels on both

sides know what will pasd muster, and what will not. So, unnecessary

arguments will be futile. A system of this type will, therefore, curb tendentious

ar[uments the same way information produced by the computerised railwayreJervation system eliminates futile attempts of travel on overbooked trains. Inthese matters, non-availability of Technology is not the Problem; resistance to

technology is the problem.

If this facility is on the Intemet, no matter where the case is being heard,identical interpretations of the law will result. Then, the variability between one

iudge and u.,othet will be reduced sub$tantially, and hence, fewer disputedjudgements will be taken to higher courts. In briet automatic legal interpretationsystems can be devised that will emPower an inexperienced and not so clevermagistrate to function as well as experienced and brilliant judges.

The Power and the Limitations of Computers

It is necessary to point out that the computer does not produce thejudgment - it only offers valid choices before the magistrate. Ultimately, it is the

magistrate who will decide. Only, the atea of uncertainty is so much reducedthat decision-making becomes a simple matter.

In this cormection, it is worth recalling the recent air tragedy overSwitzerland when a Russian passenger aircraft and an American cargo craftcollided. The computer in the Russian aircraft acted correctly. It so happenedthat several ground controllers were on leave. The only one that remained onduty was overworked, and gave wrong advice. The piiot believed the humanoperator and igrrored the computer's instruction with disastrous results causingthe death of nearly a hundred people. Xn Air Forces round the world, it is acardinal rule that whenever there is a coniflict between what the computer states

and the pilot thinks, the pilot should treat the data as Presented by the computeras correct. The pilot still has the responeibility to decide what to do with thedata, but that information must be accepted as definitive and accurate. Humanbeings are much more prone to error in measurement and analysis thancomputers are, but it is only the human mind that can decide best, what next' Ifthat is the case in matters of life and death, where instantaneous decisions haveto be taken, there is no reason why similar computer techniques cafflot be usedto aid judges.

Veracity of Evidence

It is generally accepted that witurbsses may lie but events do not. Asdescribed above, computers are useful in sifting the data that events Senerate.Computers can help even more in deciding whether wibresses are truthful ornot. Lie detectors have been in use for d number of years. They have been usedfor investigative pulposes but they are not normally considered good enough tobe used as evidence. New brain scan techniques are under development that

Technology andlustice 20j.

will overcome the hesitation judges now have about using lie detectors. Liedetectors may not find the truth but only detect ries. That is b:y no m""* t.irrllthat is wirming half the battle.

Consider a scenario where suspect witnesses are made to give theirevidence when wired to a lie detector. The fact of being connecte"cl to u ii"detector will itself inhibit them from lying. Even otherwiie, the machine canhelp to assess the reliability of the witness. That need not replace the presidingofficer's judgment but will be a helpful tool on assessing

-the evidence. ThiI

matter of veracity of witnesses is a matter of much importance in India wherewitnesses have little hesitation to lie under oath. It would be a good idea to askwitnesses to take lie detector tests whenever they contradict tieir own earlierevidence.

Finger prints, blood tests and now DNA tests have all become routine incriminal investigations and their results are now accepted without reservationby courts all over the world. It is only a matter of time when lie detectors too willbecome equally ubiquitous. opposition to their use will be not because thev arenot reliable but because they will be too reliable for the comfort of falsewitnesses.

Laxity in Courts

Though there is reticerrce about commenting on court proceedings, it mustbe admitted that not all presiding officers are as eificient or as systematic as thevought to be. As a normal rule, court proceedings are open to the public. yei,either due to inadvertence or due to negligencb, ma.,y lapses do-occur. Notmuch notice is taken of them because the few witnesses that are present areafraid of the judges. only widespread dissemination of court p.o.""dirrgs .urtcurb Iapses on the part of the judges. For instance, suppose court procee-dingsare-all videoed and kept as a permanent record. with modern technology thltwill costlittle and occupy very little space - a whole year's proceedings"couldbe stored in a briefcase. such visual records will be much more grapiic thanstenographer's reports. They will catch the atmosphere of the courtroom in away no written record can. Sheer conservatism only has prevented keepingvisual records of court proceedings. when stenographers were first introduied]that too must have been a path-breaking transiormation. As a next step, weshould now start maintainingrvisual records of court proceedings.

video records will offer a more comprehensive recal of the proceedingsthan written records can. They can be analysed automatically- to idendlrdelaying tactics. Reports can even be generated objectively to fix theresponsibility for delays. As no judge would like to be listed as ineffective incontrolling delays, video reports and their computer analyses will enforced.iscipline on judges directly, and on the lawyers indirectly. video recording is asimple and very cheap technology these days. It will coit little but its beriefitswill be substantial.

The Citizen and ludicial Reforms202

Problems in Law Created by Technology

Technology does much good; it also hatms' Right from the beginning of

civiliJion, p""Jpl" t "n"

beeir concemdd about the harm that advances in

f.r,o*t"ag"U.i"g. Sometimes, as with Luddite riots, the opposition to technology

takes a iiolent- turn' However, never before in history was opposition to

technology was as virulent as it is today'

if present day environmental activists had been active in earlier years'

rhere would have been no steam engines, no cars, almost definitely no.electricity

"1,f.,", u, they are all polluting and iangerous too. Activists are usually right in

th" ala.^s iney taiie. Howlever, they fail to take .into account the contra

urg.rmu.rts, the benefits the same tecirrrology would produce' Hence' while

giii.rg d,ru'*"ight to the objections raised by the activists, the courts will have to

assess the Balance of Advantage.

Newtechnologiesarealwaysdifficulttocomprehend.Theactivistsaresincere and self-sacr-ificing. Their irguments are based on moral considerations.

on the other side, those who advocate technology are often rich businesses.

ihai, urg.,-"nts are based on mundane considerations of profit to themselves

and to tlie public. That makes it difficult to locate a proper balance between the

two.

The Case of the Narmada Dam: Consider the case of the Narmada Dam' Its

opponents tatk of the inhumanity of displacing poor peoPie from their ancestral

noi-nes. They highlight the permaneni damage done to ecology through the

destruction " of ]orests. They openly accuse irrigation engineers uttl thu

government of corruption, and inhumatrity. They speak of promises made.and

troke.t. They emphaiise that the Dam will make poor Adivasis Poore-r, and the

rich landlords of Gujarat richer. They assert that much harm will be done if the

river waters are not allowed io flow to the sea.

There is an element of truth in every one of these alguments. However, that

is only a partial truth. For instance, over 90 per cent of the river Cauvery is used

up foi irrigation. Many of these irrigation systems are over a thousand years old'

Tirere is n-o evidence ihat the diversion of so much water has done any harm.

The Cauvery delta remains one of the most fruitful, Prospelous, and salubrious

oarts of India. In contrast, the Sunderbans of the Gangetic delta,90 per cent of

ihose waters are allowed to waste into the sea, is infested with disease and

poverfy.

The critics are unlikely to be rign,t when they assert that Adivasis willbecome ooorer when the dam is built. Adivasis are already at the bottom of the

economic pyramid. Their literacy rates are abysmal. Their life expectancy is low.

Leaving them as they are will perpetuate their poverty. Taking them away from

the forJst will provide them with opportunities for education, employment, and

heaith services that they will never get if they remain in the forest. At the least,

once they move out of the forest, they are likely to live longer'

Likewise, the opposition to shifting their homes will not stand historical

scrutiny. Right from-prehistoric times, mankind has been on the prowl' As a

rule, those who migrate prosper better than the natives'

Technology and Justice 2Ol

Mainly, the courts have to decide whether the compensation is fair andjust. It is more than likely that the compensation is not calculated in a .just

manner. Normally, the amount of compensation is calculated by estimating theloss suffered. That is not entirely fair. suppose the loss suffered is X, and thegain that accrues to the beneficiaries is Y. Thery the compensation should be notX alone but X + Y. That is, the displaced personi should not only becompensated for the loss incurred but should have an equal share also in thebenefits that accrue.

Often, displaced persons are provided with modem housing with runningwater, electricity, and toilets. That is good but may not be adequate unless theyare also given the skills required to get new kinds ofjobs. In addition, it is best tomake the cash compensation an annuity that is indexed to inflation. Farmers inTamil Nadu, Maharashtra, Punjab and Uttar Pradesh have welcomed proposalsof indexed aruruities enthusiastically.

. Admission to Piaate Professional Colleges: Indian courts have faced aproblem of a different type in deciding admission to privately run colleges. TheSupreme Court has laid down elaborate regulations about admissionprocedures and about fees to be charged. It appears that the court hasoverstepped in this case.

Running a college, even if that is for profit, is by no means an anti-socialactivity. If a rich person were to spend money on building a house in marble, orwaste it in the nightclubs of Las Vegas, the courts will not interfere. If the sameperson were to spend that money to educate children in an engineering ormedical college, the same court will impose any number of restrictions. A richperson has discharged his or, her social duty once the taxes are paid. Hence, itdoes not appear all that just for the courts to intervene,

-and impose in effect an

extra tax, merely because the sufplus income is spent on educating one,schildren.

The intentions of the Supreme Court are laudable. Yet, it would have donewell to check how private universities function in the United States. Contrary topopular perception, the average fee in Harvard or Columbia is no more than 20per cent higher than in state universities. The top fee in these institutions is 3-4times greater, but the scholarships are so many that the average fee is muchlower. The fee is also fixed according to (a) merit and @) capacity to pay.

In the US, private endowments are large - typically $ 10 billion (Rs. 50,000crore) for an enrolment of 15-20,000 students. They have collected such largeendowments because American business appreciates the benefits of qualityeducation. In India, such awareness is low among business people, andapparently non-existent among goverrunent leaders and the judiciary. Businessis a major beneficiary of quality education. Once the Supreme Court decided tointervene, I would have done well to have made employers a party to thedispute, and made them also contribute. Because higher education confersbenefits on society as much as it does on the individual student, the coqrt mighthave directed that, say, half the cost should have come from employers andbusiness, a quarter each from the state and the students. Further, itudent feescould have been related to ability to pay.

2M The Citizen and ludicial Reforms

Thelastpartisabittrickybecause,inlndia,mostrichpeoplehidetheirincomes. One possible solution is to fix c6llege fees according to the fees paid by

the student ai the school level: Then those who go to expensive schools pay

more and those who go to cheap schools will pay less' As many people in the

government are privifiged to educate their children in Central Schools, it may be

necessary to add a surcharge based on gloss income'

The Ptoblem of Amniocentesis: Virtual banning of amniocentesis is

another instance of judicial intervention in a technology related issue. The court

was concemed about the use of this tedurique to identify the gender of foetus. Itwas exercised over the fact that many pArents misuse that information to abort

girl babies. For centuries, similar enquiries have been made from astrologers.

Err". r,o*, astrologers do indulge in sudh predictions' Yet, no court would ban

astrologers from making their predictions. The case of doctors is being treated

differeitly not because they predict the sex of the baby but because they do so

accurately. Evidently, there is confusion here between the legality of the, act and-

the fear or tn" co*"-qnences. The court's decision could not have been flawed ifit had banned abortion of girl babies. Placing a check on a technology that has

several benefits does not appear wise.

In adiudicating technology-related cases, the risk is always there ofthrowing away the baby along with the bath water.

Corru.ption in Technology Acquisition: Purchases of high technology

equipment has become a major source of bribery and corruption in recent years'

only the courts can deliver the country fron this evil. The following three cases

whiih are in the personal knowledge of the author indicate the nature of the

problem:

1. Some years ago, an American flrm quoted Rs. 7.5 million for a railwayelectronic equipment, but when IIT Delhi succeeded in developing a

local version, the price was brought down to as little as I{s. 1.7 million.Even after such a drastic price reduction, the American import couldnot compete with the indigenous system either in price or in quality. Atthis stage, for inexplicable reasrons, the Railway Board decided that itdid not need such systems at all, and old outdated systems shouldcontinue to be used.

3.

Another instance concerns C-DoT switches. A new entrant who hadnever been in the telecom business offered to manufacture C-DoTswitches for a . price well below even the bill of materials. The

goverrunent demanded that alil other manufacturers should cut theirprice too. As they could not do so, the manufacture of C-DoT switches

iame to a halt. Once that happened, the new entrant paid a penalty andwithdrew from the scene. At that stage, on the ground C-DoT systemswould not be available in time, the govemment bought from foreignsuppliers at double the original prices.

In technology sales, there is what is known as the Gulf Price-the price,

oil-rich but technologically poor Gulf countries can be charged withoutdemur. That can be several times more than the true price. In one

Technology and lustice

instance, it was found accidentally that the Indian Navy was payingten times the true price for a piece of specialised equipment. Obviously,all this requires the connivance of local officials and politicians. As arule, thanks to official secrecy, most such cases never come to light.

Corruption in technology purchases has become a major menace in alldepartments of govemment. The problem is compounded by the fact that inthese cases monopoly operates - there is only one buyer. Therefore, there is noway of comparing prices. The only feasible solution appears to be for the courtsto insist that purchases must be decentralised. Thery different divisions willcompete to get the lowest price. Comparative data will become available, and thecourts will be able to detect purchases made at exorbitant prices.

Justice and Technology

Justice and technology share some feafures in common. Both inspire aweand hope. At the same time, both arouse fear and despair. With every advancein technology, the complexities faced by the judges increase. However, iftechnology is the problem, it also offers solutions. Such solutions are availablebut not yet used in toning up the normal functioning of the courts. In particular,judicial delays, and judicial indiscipline can be checked without muchdifficulty and at little cost by simple techniques.

kr those cases where technology change is at the root of the problem,judges are at a disadvantage because they will have no precedence to fall backon. They will also be under enormous pressure from social activists who do notrespect the law but expect the law to be bent for them. There will be uncertaintiestoo. It is to the credit of our judiciary that they have tackled these cases withfinesse. At the same time, it must be said that what they have so far tackled isonly the tip of the iceberg. When genetic engineering and nanotechnologyexplodes in full force, they will face unprecedented moral issues.

ogB)

SUBORDINATE COURTS_THEIR

INDEPENDENCE, APPOINTMENTS AND

CONDITIONS OF SERVICE

K.N. Bhaf

scope: This presentation is dehberately restricted to the restructuring of

District iourts and courts below - the gubordinate courts, to achieve greater

efficacy in the working of the judiciary. special emphasis is laid on All India

Judicial service (Article 312 of the Constitution and the 14th Report of the Law-Commission).

Establishment of new ingtitutions like Nyaya Panchayats may

better serve the goal of easy access to justilce.

Preliminary Observation: Suboldinate courts in reality form, the

foundation of the Judiciary in every modem state, but unfortunately they have

been totally neglected in -Independent

India. Even the aspects of salary^and

allowances of inembers of lower juiliciary are left entirely to the State

Governments. The late effort of the supreme court in All India fudgesAssociation Casest to compel attention has resulted in a pioneering- report of

First Natiohal Judicial Pay Commission headed by Justice K. Jagannatha shetty,

former Judge, supreme Court of India. trts recommendations, restricted only to

pay and allowances, could not be implernented during the last two years or so,

,oieiy ot-r account of reluctance of several State Governments to co-operate and

the inability of the court to compel obedience.

Whiledealingwithcourtsoneshouldbearinmindthatpolicingbythehigher courts in tie hierarchy has only a doubtful and marginal effect on

imiproving efficiency. As a iule, an appellate court or a court having a

super.risoiy jurisdiciion in judicial matters should have no administrative

.o.rtrol ou"r the courts lower in ihe hierarchy. Independence of the judiciary

must be ensured even at the lowest level and the Judges at all leve]s should not

Senior Advocate.

(1992) 1 SCC 119 L993 (4) SCC 288.

206

Subordinate Courts-Their Independence, Appointment and Conditions of Seroice

only be independent of the executive but of the higher courts also. The lawdeclared by the Supreme Court is that "A Judicial Service is not service in thesense of 'employment'. The Judges are not employees. As members of thejudiciary, they exercise a sovereign judicial power of the State. They are holdersof public office in the same way as the members of the Council of Ministers andmembers of the Legislature"'z. Unfortunately, in reality the judges of subordinatecourts are only employees.

The Supreme Court in its anxiety to protect the judiciary as a whole fromthe executive has, over the last decade or so, unwittingly eroded in to theconstitutionally envisaged independent status of the High Courts. As is wellknown, through the Second Judges case3 the powers of appointment of fudgesof the High Courts and of transfer of Judges from one High Court to another,including appoinhnent of Chief fustices of the High Courts, have beenappropriated to itself by the Supreme Court. The Supreme Court today is not justthe final court of appeal; it is also the appointing authority for judges and chief

iustices of High Courts and of course of ihe Supreme Court itself. The SupremeCourt's decision in the case of an alleged assault by the Gujarat police on theDistrict Judge of Nadiada was perhaps the unkindest cut on the constitutionalstatus of the High Courts - again inflicted unwittingly and with best ofintentions5. Similarly, the Supreme Court exercising - though reluctantly andrather helplessly - its original jurisdiction to punish a lawyer V.C Mishra6 forallegedly committing contempt of the Allahabad High Court is another instanceof the Supreme Court acting like a big brother which constitutionally it is not.This tendency has percolated to an alarming proportion and should beremedied before a iudiciary of a district becomes a iofi of zamindari of a sittingHigh Court Judge.

The appointment process of the Judges of the Subordinate Judiciarynamely those lower than District Judges is in fact given to the Public ServiceCommission of the State and a Judge of the High Court is generally invited to be

a member of the Selection Committee. Where participation by the High Court istotally ruled out in some states, the Supreme Court has expressed the view thatsuch a practice is not desirable (Ashok Kumar's case)7 . The appointment ofDistrict Judges however, is left virhrally to the High Court.

2. (19e3) 4 SCC 288 (295-96).

3. (1993\4SCC44r.

4. Delhi ludicial Sentices Association v. State of Gujarat, (1'99I) 4 SCC 406.

5. A tlvo judge Bench interpreted, among others, Articles 129 and 215 of theConstitution for the first time - Article 145(3) mandates five judge Bench as the

minimum for hearing of such cases - and held that under that article the SupremeCourt has jurisdiction to initiate proceedings for contemPt of subordinate courtsalso.

6. Vinay Chandra Mishra (in re:), (1995) 2 SCC 584. It is believed that the SupremeCourt resorted to this course because, on account of an atmosphere of terrorprevailing in the High Court, no judge was prepared to hear this case. Hence theinterference.

7. (1985\45CC417.

2oB The Citizen and Judicint Reforms

It may not amonnt to contemPt of court if one observes that the High Court

Judges are not above considerations of caste, religion, etc. It is felt that often, inthe matter of selection of District Judges, subjectivity plays more prominent part.This continues even in the matter of fupther Promotion or even postings and

transfers of judicial officers. In the matter iudicial proceedings like granting ofbail or iniunctior! a subordinate judge is often inhibited by the possible wrath ofthe High Court.

As a consequence of the law declared recently by the Supreme Court inlayalnlitha's case8 sentences passed by a rnagistrate or a special judge in offencesspecified in section 8 of the Representation of People Act, 1951 take effect atonce. And the prescribed disqualification starts operating not withstanding thesuspension of execution of the sentence by the appellate court. It is to be notedthat section 8 of Representation of People Act, 1951 specifies a large number ofoffences - not just offences under the Prevention of Corruption Act. Most of thespecified offences are with in the jurisdiction of magistrates and carry sentencesof tr,vo years or less. The fact of conviction is enough to attract the statutorydisqualification. It will be too much of a burden on a State Govemmentcontrolled judge or magistrate to be asked to decide cases of such grave politicalconsequences. The judiciary needlessly gets burdened by bad reputation.

Suggestions regarding structuring of Suhordinate fudiciary:(1) All India Judicial Service as envisaged in Article 312' of the

Constitution and on the lines recommended by the Law Commission inits 14th report should be established. Recruitment to the All IndiaJudicial Service from the age group of 20-25 (fresh law graduates)should be on All India basis with need based allocation to differentstates as in the case of IAS and IFS.

This wiII help the stntes with lesser educational ficilities also to get the seruices

of good judges.

(2) The AIJS judges should be rqquired to acquire sufficient workingknowledge of the language of the state to which they are allotted.

(3) The AIJS will start working as Magistrates/Munsiffs - at the lowestlevel.

(4) Members of the AIfS should be entrusted with trial of cases both civiland criminal arising out of Cenlral Acts'only. Adjudication of disputesarising from local laws should be by state judiciary.

(5) Article 236(a) (b) may be amended.

(6) Separate wings,/cadres in judicilary to deal with state laws and Centrallaws will ensure speedier disposal of cases of greater importance.

(7) In the context of increasing number of cases under Prevention of

8.

o

B.R. Kapur v. State of Tamil Nadu, (2001)7 KC 231.

All India Judicial Service, as a concept was made a part of the Constitution by theinfamous 42nd Amendment during the phoney emergency of 7975-77.

Subordinate Courts-Their lndependence, Appointment and Conditions of Service 209

Corruption Act at all levels and laws affecting eligibility to contestelections and in the context of impact of lower judiciary's judgements oneligibility to hold public offices, it is desirable rhat only AIJS judges hearsuch cases.

(8) Young law graduates will be recruited through open competitiveexaminations and interviews much before they become successful(perverted or c1'nical) lawyers. The recruitment process should beentrusted to the National Judicial Commission.

(9) There should be an embargo on the members of the AIJS taking uppractice after resigtring,/retiring,/discharge from service, in the sameState in which they were members of the judiciary.

(10) There should be no reservation in the Judicial Service on the basis ofcaste, creed, religion or place of birth particularly after the initialentry.lo

(11) The retirement age of the AIJS judges should be the same as that of theJudges of the HighCourt.

(12) No State Government or the High Court should have the power toinitiate disciplinary proceedings against members of the AIJS and thepower to effect termination of service should be reserved to thePresident of India on the recommendation of the National JudicialCommission. The State Judicial Commission (to be established) mayhowever, be given the power to suspend a member from service pendingrecommended ilisciplinary proceedings.

(13) Specialised tribunals are to be manned by members of the AIJS.

(14) Seniority should have very limited role to play in the career prospects ofthe member of AIJS after he attains a specified rank - say Senior Dist.ludge. This will be in keeping the spirit of the Supreme Court'sdeclaration that a member of a iudiciarv is a holder of an office and notan employee.

(15) There should be scope for members of the State Judicial service to enterthe All India Judicial Service in deserving cases.

(16) Corresponding amendments to the Constitution including to theprovision in Chapter VI of Part VI of the Constitution may have to becarried out. However, the powers conferred under Articles 226 and 227will continue to be exercised only by the High Court.

Corresponding provisions may be made for establishing a State fudicialService under the control of the State Judicial Commission to be establishedthrough amendment to the Constitution. It is necessary to ensure that theappellate power does not get mixed *ith administrative power. Independenceof the judges has to be assured and ensured at every level.

10. Several decisions of the Supreme court during the last decade, notably Ajit SinghIl v. State of Punjab, (1999) 7 KC 209, following lndra Swaney, (1992) Supp 3 SCC217 have declared that reservation is a transitory measure and there is neither anobligation to make reservation nor is there a right for it.


U.S. Experience

The experience of United States of America may not exactly be capable ofbeing copied by India. In that country a variety of Tribunals at the lower levelprovide a fascinating and at times what may look like bizarre picture. Prof.

Henry J. Abraham in his classic work "|udicial Process"tt gives a veryinformative picture of lower tribunals in different countries like the USA,England and France. Regarding the U.S.A, he notes (Seventh Edition page 152):

"THE STATE COURTS

It is in the courts of the fifty states that the great majority of the legalbusiness of the American public begins and ends. The character, jurisdiction,quaiity and complexity of these courts vary considerably from state to state inaccordance with the myriad considerations of public policy, need, size andconstitutional practice that characterize the heterogeneous component parts ofthe nation. Every state constitution establishes a judicial branch for iisinvariably tripartite gov€rnment or, either in whole or in part (as is true for thenational level under Article III of the Constitution of the United States),authorizes the legislature to provide for a judicial system. Although theterminology and structure among the State Courts differ significantly, a

discemible strucfural pattem does exist. The base consists of a system of justices

of the peace and trial cburts with the pyrarrrid gradually winding its way upwardthrough a more or less elaborate appellate system, cuhninating in a SupremeCourt (not invariably termed "Supreme Qourt " however)."

The office of fustice of Peace or JP fof short (often an elected office for a termof two years) needs no special qualification. It is stated that in some of the statesnot a single JP had a law degree and about 75% had never gone to college andabout 40% had never even attended a high school. Even in states like Virginia a

mere 4 JPs were lawyers. 71-% had never gone to college and only 5 of theremaining 29"/o were graduates and 18% were not even high school graduates.The learned author Prof. Abraham states that all this represents an unforhrnatestate of affairs for "given suitable attributes of integrity and proper qualificatiorythe Justice of Peace might well still provide able and inexpensive adjudicationand settlement of mlnor legal problems in judicial process". The job of a JP isregarded "more social than legal" He quotes a Chief Magistrate of PhiladelphiaJoseph J. Hersch as saying: "A law degree doesn't make a magistrate morequalified. Living with p6ople is more essential than going to a law library tofind out what it's all4bout.... If you take Purdon's law books away from them[the lawyers], they'r€ out of business."

jPs jurisdietion generally extends to disputes involving less than $5000and the pe,re'entage of cases ending in cOnviction or decrees is often as high as99 with the result the expression JP has been irreverently referred to as Justice forPlniniif. Reference to this institution which is still flourishing in the UnitedStates of America in the 21st century is made as a prelude to the suggestion for

11-Tl* f.,dt"l.l Process (seventh edition) by Henry J. Abraham. Oxford UniversityPress 1998. (published first in i962).

Subordinate Courts-Their lndependence, Appointment and Conditions of Seruice 211

the introduction of Nyaya Panchaynts.It is often felt that resolution of the disputein time with finality is more important than the so-called legally correctresolution. This is because experience tells us that there is nothing like a legallycorrect resolution. We have seen time and again that decisions of a munsif wasupheld as correct by the Privy Council or the Supreme Court in preference tothat of a District Judge or of a High Court. Decisions of the Supreme Court havebeen reviewed and reversed. Putting finality to petty disputes prevents theirsnow balling into major causes of disturbance of social order. The judicialsystem at best is a compromrse.

Matters arising out of a local law must be left to the locai courts manned bylocal judges. The emphasis should be for speedy resolution of disputes andavoidance of stagnation of grievances. With the High Court at the apex of theState Judiciary to correct serious violations of statutes or procedures of generalimportance alone, finality to litigation should be assured at the earliest stage;and with an AIJS judge in picture, acceptability of finality may be better assured.States in their wisdom may encourage compulsory arbitration or alternativedispute resolution in classes of cases. The emphasis should be to ensurecurtailment of longevity of disputes, which would mean longer life for peaceand harmony in society.

Suggested Amendments to Constitutional Proyisions Dealing withAppointment/Transfer of Judges and Constitution of National JudicialCommission

The following suggestions are made without having had the advantage ofperusing the report of the Constitution Review Committee released on 31-3-02.

(1) Article 124(2) shall be substituted by the following article:-(a) "The Chief Justice and every Judge of the Suprerne Court shall be

appointed by ihe President by warrant under his hand and seal on

the recommendation of the National Judicinl Commission and shall holdoffice until he attain the age of sixty-five years".

Explanation.---The President may for the reasons set out in writin&require the National fudicial Commission to reconsider anyrecommendation once only.

(2) Article 124(3Xb) shall be substituted by the following:-"has been for at least 20 years an advocate".

Explanation 1 shall be omitted.

(3) The words and phrases in italics shall be added to the existing Article724(7) and the amended Article shall read:

"No person who held ffice as a Judge of the Suprmrc Court shall engage

himself in the practice of law in any mnnner - for all times; nor shall he be a

candidate at any election to either House of the State Legislature or ofPnrliament for a period of three yenrs after he ceases to hold office, or to hold


any office or post during thnt period, either under the Gooernment of India orunder the Goaernment of any state or in any organisatian or undeftakingunder their control, except to the exttnt peffiiitted under the Constitution or bystntutes or by the National ludicial Commission, specifcally or generally ftomtime to time".

(4) In Article 127 the words and phrases "If at nny time there should not be a

quontm of the Judges of the Supreme Court apailable to hold or continue any session ofthe Court" shall be deieted and the amended Articie shall read as follows:-

"At any time the Chief Justice of India may, with the previous consent ofthe President and after consultatflon with the Chief fustice of the HighCourt concemed, request in writing the attendance at the sittings of theCourt, as an ad hoc Judge, for such period as may be necessary, of aChief Justice or Judge of a High Court. The nd hoc jndges shail beentitled to receive for the period of service such emoluments andallowances as are applicable to the judges of the Supreme Court".

(4) ,A.rticle 217(1) shall be substituted by the following article:-"The Chief Justicelnd every Judge of a High Court shall be appointedby the President by warrant under his hand and seal on therecommendation of the National Judiciai Commission and shall holdoffice, in the case of an additional or acting Judge, as provided in Article224, and in any other case, until he attains the age of sixty-five years.

(The powers of the President relating to the appointments to theSupreme Court shatl m u tatis mutawdis apply to this Article also.)

Explanation (aa) shall be omitted. Ali references to the expression" Adaocate of n High Court" shall be omittted because after the advent of theAdvocates Act the quoted phrase has no meaning.

(7) Article 217(2)(b): The word "ten years" be substituted by the words"hventy years" and the words "of a High Court" may be deleted. The amendedArticle will read:

" Artlcle 277 (2)@): has for at least fwenty years been an advocate".

(8) Article 220: shall be substituted by the following Article. Subject to theguidelines issued by the Commission:

"All restrictions imposed upon a former judge of the Supreme Courtunder Article 124(8) shall apply to a former judge of a High Court".

Atticle 222(7) shall be substituted by the following article:

"The President ma, on the recommendation of the National JudicialCommission transfer a Chief Justice or a Judge from one High Court toany other High Court or may appoint him as a judge of the SupremeCourt of India. Disobedience oI the order of the President shall beconstrued as resigr.ation from the post".

Subordinate Courts-:Their lndependence, Appointment and Conditions of Seraice 273

CHAPTERIVA

NATIONAL IUDICIAL COMMISSION147 A.-(7) The power and responsibility of recommending appointment of

the Chief fustices and Judges of the Supreme Court and High Courts and oftransfer of Chief Justices or Judges of a High Court from one High Court toanother under this Constitutiory the power of dealing with complaints againstjudges in the manner provided hereinafter shall vest in a Commission referredto in this Constitution as the National Judicial Commission.

(2) The National Judicial Commission shall consisfof the following:-(a) The Chief Justice of brdia and two senior-most Judges of the Supreme

Cour!(b) The Vice-President of India or the Deputy Chairperson of the Rajya

Sabha, if specifically authorised in writing by the Vice-President.

(c) The Cabinet Minister in charge of the portfolio of Justice or anyminister nominated by the Prime Minister for this purpose.

(d) Leader of the Opposition in the Lok Sabha; or in the absence of LokSabha the Leader of Opposition in the Rajya Sabha.

(e) Attorney General of India.

(f) Two distinguished persons co-opted by the above members at theirfirst sitting who will function for a period of two years and will beeligible for re-nomination for one more term only.

2. The Commission shall endeavour to send a recommendationappointment to the Supreme Court and the High Courts well beforevacancies arise.

3. On all issues the decision of the maioritv of the Members of theCommission present and voting shall be deemed-to be the decision of theCommission. In case of equality of votes, Chairman of the Commission shallhave a casting vote.

4. The Chief Justice of the Supreme Court of India shali be the Chairman ofthe Commission and in his absence, or incapacity to be in the Commission toconsider a particular issue, the senior Judge of the Supreme Court of India in theCommission shall act as Chairman.

5. The Commission shall have power to call for information from everycourt or authority for the purpose of effectively discharging their responsibilitiesand every such court or authority shall be bound to fumish such information inaccordance with the requisition by the Commission.

1478. Procedure of the Commission.-(1) The Commission shall meet asfrequently as-may be found necessary on such date and time as fixed by theChief Justice of lndia in consultation with the other Members of the Commissionor as requisitioned by the majority of the Members in writing. Unless otherwisedecided by the Commission all meetings will take place in the Supreme Courtpremises where the office of the Commission shall be situate.

forthe

214 The Citizen antl Judicinl Reforms

(2) AII decisions of the Commission shall be taken at meetings convened

after a minimum of seven days' noticd and attended by not less than five

members. Provided that in case of urgency meetings may be called at shorter

notice.

(3) For the purpose of recommending appointment of a Judge of a High

Court, the Commission shall consider the suitability of a candidate only from a

panel of names recommended by a Comrnittee consisting of:-(i) Chief Justice and two senior-most Judges of the High Court concemed;

(ii) Chief Minister of the State or his nominee, being the minister in charge

of Law and Justice;

(iii) Leader of the Opposition of the State Legislative Assembly or his

nominee MLA, duly authorised in writing for this purpose;

(iv) Two distinguished Persons nolninated by the other mernbers of the

committee at iis first sitting, who will hold office for two years and willbe eligible for re-nomination.

(v) Advocate General of the State and if he himself is likely to be a

candidate for appointment, any Member of the Bar of distinction and

who is more than 65 years of age nominated by the Chief fustice of the

High Court for this purpose;

In the event of the State being under the President's Rule or otherwisenot having a Chief Minister or a Leader of the Oppositiory the

committee shall in their places, consist of the Governor of the State orhis nominee and the Chief Secretary;

(vi) On all issues the decision of the majority of the Members of the

Committee present and voting shall be deemed to be the decision of the

Committee. In case of equality of votes, Chairman of the Committee shall

have a casting vote.

(vii) The Chief justice of the High Court shall be the Chairman of the

Commission and in his absence, or incapacity to be in the Commissionto consider a particular issue, the senior Judge of the High Court in the

Committee shall act as Chairman.

Procedure of the Committee.-(1) ilhe Committee shall meet as frequentlyas may be found necessary on sLrch date and time as fixed by the Chief

Justice of the High Court in consultation with the other Members of the

Committee or as requisitioned by the majority of the Members inwriting. Unless otherwise decided by the Committee, all meetings willtake place in the High Court prernises where the office of the Committeeshall be situate. The staff of the High Court will function as the staff ofthe Committee. All the expenditure incurred in connection with the

work of the Committee shall be a charge on the Consolidated Fund ofIndia.

(viii)

(ix) All decisions of the Committee will be taken only at meetings attendedby a minimum of five mernbers. The Committee may interview

Subordinate Courts-Their Independence, Appointment and Conditions of Seruice 215

candidates, gather information from the Bar Associations or from anyother source and may frame regulations for the proper functioning ofthe Committee. All the proceedings of the Committee shall be recordedand confirmed at the next meeting and the same shall be communicatedto the National judicial Commission expeditiously.

(4) The Commission mav reject al1 the names recommended by theCommittee for reasons to be indicated and call upon them to recommend freshnames.

(5) The Commission shall have power to call for such and furtherinformation from any or more sources including organised bodies of lawyers forthe purpose of assessing the sr-ritability of a candidate for being appointed as a

Jr"rdge of a High Court or the Supreme Court.

(6) The Commission shall have on deputation from the Supreme Courtsuch number of staff as it may be decide from time to time.

(7) The Commission may from tlme to time fix the allowances payable tomembers, candidates and others required by the Commission to attend itsproceedings or otherwise asked to undertake any work by way ofreimbursement or otherwise.

(8) The expendlture required in connection wlth the Commission and itsfunctioning shall be a charge on the Consolidated Fund of India.

(9) Subject to the above and other provisions of this Constitution, the

Commission may frame mles or regulations from time to time for the properconduct of its business.

717C. Judges Strength o.f Courts.-It shall be the duty of tlre Commissionfrom time to time to assess and fix the required Judge-strength for every HighCourt and the Supreme Court and also to recommend the appointees in time so

that vacancies are filled r-rp withor"rt delay.

747D. Procedure for Recommendation.-(L) The Commission may in itsdiscretion interview candidates for all appointments and such interviews shallbe held in camera and no record of questions posed io the candidate and the

answers given shall be kept and no parts of the proceedings shall be publicisednor shall be subiect to iudicial review.

(2) At tl-re end of the interview, the Commission shall record its views as tothe suitability or otherwise of the candidate for appointment in a register, thecontents of which shall be kept confidential and shall not be required to be

produced in any proceedings before any court or authority.

L47E. Trnnsfer of ludges.---The Commission may recommend transfer of a

Judge from one High Court to another, after giving an opportunity to the Judgeconcerned to present his views on the proposal either personally or throughwritten representation as opted by tl're Judge.

1,47F. Complaint ngainst judges conduct.-( 1) If any specific complaint inwriting and signed by not less than 100 members of Parliament or by judges ofthat court constituting not less than 1/3 nr"rmber of the effective strength of the


urt against a sitting judge, alleging grounds as contemplated under Article2 (4), the Commission may in its discretion enquire into such complaints. For

purpose the Commission shall have all the powers of a civil court foroning documents, enforcing attendance of parties and wihresses

that of the judge concerned, to administer oath and such other powersto effectively dispose of the complaint.

(2) Enquiries contemplated under (1) shall be deemed to be judicial

(3) The Commission may record its finding on the complaint andappropriate action like transfer from one High Court to another or

tention from discharging judicial work for such period as the Commissionfit, including action under Articles 124(4) and 218.

' 147G. General Powers and Protection.--:fhe Commission shall have Dower tote its own proceedings. No proceedings of the Comrnission shall,

otwjthstanding any other provision of the Constitution, be called in questionre any court including the Supreme Court and the High Courts, Tribunal, or

uthority; and no Member of the Commission shall be answerable to anyuthority or Court for anything done or purported to be done in the discharge

purported discharge of his functions under this Chapter, or for anythereof.

endment of the Second Schedule:

y deem

Consonance with the prevailing saldry structure appropriate provisionsmade to ensure that a judge after retifement receives from all sources anount equal to his last drav"n salary without perks like house, car, etc.

(,5&)

CRIMINAL JUSTICE ADMINISTRATIONIN MYTH AND REALITY

Ranbir Singh*

I would start with a quotation of the French writer and thinker AndreGide:

" Eoerything hns been snid already; but as no one listens, we must alzoays beginagain" .

In India, respect for the fear of law and the law enforcing agencies areevaporating from the minds of the criminals and the situation iJ degeneratingvery fast- The basic principle of criminal justice ,,to prove all cases beyonJreasonable doubi" for conviction works as a blessing in disguise foi thecriminals. In many instances, prosecution in our criminal courts ends in failuredue to non-cooperation of the public, reluctance of witnesses, lack of co_ordination between investigation agencies and prosecuting agency, lengthyinvestigation procedures, rampant corruption at most levef inefficiency ofinvestigator, prosecutor, and interference of politicians, mafias and wealthvpeople of society. Criminals are getting acquilted because of variety of sucirreasons and every acquittal generate a sense of self-confidence among thecriminals to repeat the crimes. As a result, day by day, crime rate is showiig anincreasing hend. Indeed so much is writtery debated, discussed about crimeindcrirninal justice system, yet nothing seem to change for the better. perhaps themost serious challenge is in the misplaced belie in absolute of crime andcriminal justice. Criminal justice system have always been facing problems andchallenges. Things have not changed much over the year. I take yo' back as towhat were the observations of hvo British administrators, Castairs and Moon.First I begin with Castairs:

"In England, jnstice goes to the people; in lndia the people had to come tojustice.,... (The litigant) had to find his way to this strange tribunnl in an

r Director, NALSAR" University of Law, Hyderabad.

21.7


unlcnotpn land as best he could, in chnnge of the police, whose tmder mercies he

dreaded, or alone.

lf he went alone, it was not for long. Around the courts were swarms of petty

lawyers who had their touts on the roads and in the aillages. Longer he came

within hail of the court he had been fastened upon by sez.teral of these, and

persuaded that his only chance of surcess uas to put himself in their hands; say

whnt they bade him; pay what, when, and to whom they told him; and aboae

nll, to beware of telling the truth; it would nner be belieued.

In those strnnge cases there wns no mmmon ground. lMateznr one side asserted

that other denied; all the witnesses were tutored; and whether true or not tobegin with the case as presented on both sides was inaariably concocted'

I for one came to the conclusion that nenrly aII, saae a fao of the Srnper cases,

were episodes in some dispute not before the court. The pnrties were not the real

parties, but puppets of othus, who remained in the bnckground paying for and

dir ectin g the pr o ceedin gs.

Most of the genuine disputes nezser ieached our courts at aII, bttt zuere settled ntsome enrlier stage and in other wnys......

While we dispensed justice as best we could to those who came btfore us, we

knew that an enormous number of iniured persons netler came to us nt all.

Many were detened by dffiulties in the wny, many dared not come for fear ofoffending the local despot, who by threats of injuries - threats zuhich he could

carry otft - uns able to pret.)ent ther4 from complaining, and to stop the mouths

of their witness" (Castnirs R. "The Little World of nn Indian District Officer"pp. 13-15 (Macmillan, London, 1912).

Penderel Moon who served during the last decade of the British rule hadalso similar opinion. According to moon:

" A layman, still more an illiterate peasant, who endesaoured to prosecute hisown complaint of conduct his own defence in one of our Indian courts had notthe remotest chance of success. Tlte procedure nnd rules of eaidence were so

elnborate that eaen educated perbons did not understand them, and the

proceedings were conducted in a language unintelligible to the maiority of the

litigants. The courts were a shnm and a mockery in which police, zoitnesses,

lawyers and judges all played their part in producing or using eaidence whichthey knau to be quite false....

Ezteryone who had anything to do with the criminal administration was awarcof this and deplored it. But as the system was not well established andsupported by the aested interests of the lawyer.class, no one showed the

slightest inclination to alter it. Most English fficers simply washerl theirhands of the zuhole matter. Haaing worked as ordinary magistrate for a shortwhile duing their enrly years of seraice, and haoing decided thnt hearingcriminal cases u)as a futile waste of time, they put all this behind them nt the

earliest opportunity.

A simple people had become habituated to systematize periury, hsd been

corrupted by unscrupulous lauyers, had been taught to flock to the law courts,

Criminal lustice Administration in Myth and Reality 219

nnd to reael in the tainted atmosphere of bribery and chicanery thnt surroundsthem. Litigation had becolme n national pastime and the criminal law a

recognised and well-tried menns of hnrassing, imprisoning and eaen hangingone's enemies. In lndian conditions the whole elaborate machinery of EnglishIaw, which Englishmen worked and had been completely peraerted..... myrindsof lndian magistrates daily spent hours in their courts solemnly recordingword for word the e.aidence of illiterate peasants, kttozoing fully well thatninety per cent of it was false. Eaen if the e.oents described had actuallyoccurred, the alleged eye-witness had not seen them. Eoen if the accused zoere

guilty, it wni perjury which proaed their gtilt. False eoidence wns always indemand as much to proae uhnt uas true as to establish what was false, againstinnocent and guilty alike it was equally necessaty". (Quoted by Neale Walter," Economic Change in Rural India" p. 799, Ynle Llniaersity Press, L962).

So under the British rule human rights and democracy for Indians weresuspect and social justice was anathema for the processes of justice, may it becivil or criminal. For a1l the ills in our system we have been blaming our foreignmasters and colonial jurisprudence, which we inherited. If one would honestlylook at the observations of Castairs and Moon it would be very easy to concludethat things have hardly changed even today as far as the criminal justice systemin India is concerned.

Crime in India is on the increase. Fear of crime and violence has affectedthe quality of life of the people in cities and country-side. Hardly a day Passeswithout the print media giving gory details of crime against persons and theirproperty. We have become insensitive to violence and crime against fellowcitizens. An atmosphere of helplessness prevails and inform all around oversociety. It is not that we have become a country of criminals overnight' This ismainly the cumulative result of the politician-criminal nexus in vogue, the

coliapse of the criminal judicial system, erosion of authority and inability of the

police to devote time to crime work, and lastly, and most importantly, the apathyof the citizens to the crime situation and their failure to take the minimumsafeguards to protect their own interest. Crime Prevention is not a Problem of the

police alone, it is the problem of the enfire society.

The Indian legal system of criminal justice is a vast complex enigma.Based on some of the most noble and praiseworthy ideals to which any society

has given recognition, it is regularly marred by incidences of overwhelminginiustices. The gap between the ideals at the foundation of India legal system ofcriminal justice and the inequalities that occur in its daily workings is a gap

that should be closed if equal justice for all is to become a reality in a countrygoverned by rule of law. Law and order, innocent until proven guilt. Equaljustice for all. These are the phrases commonly used to describe the role ofcriminal law in the Indian social order. They derive from the traditional view ofcriminal law as that body of rules and procedures that requires that everyperson who breaks a law will be arrested, tried, convicted and sentenced toimDrisonment.


It may not be out of place to mentiqn that almost all the components of theIndian political system - the Executive, the Parliament and the Judiciary - are onthe verge of collapse "things are truly falling apart". And the constitutionalgoals of bringing about a fair and just society by fair and just means arereceding farther and farther every passing movement.

In such a situation, the criminal justice system is not an exception.'It is asystem in which hardly three per cent (3Yo) of the persons arrested by the police,under the Indian Penal Code, get convicted. It is also a fact that neither theguilty are speedily brought to book nor the innocent are spared of harassment.The investigation procedures almost remdn as outmoded as during the pre-independence days when justice Sir Walsh of Allahabad High Court had theoccasion to comment "Whereas the English detective begins with his availablewitness, and works his way up to the discovery of truth, the Indian sub-inspector begins with the accused, and from him works his way up to witness".

The country is a peculiar case of a soft and permissive state with stern andstringent laws. It combines the disadvantages of both. While on one hand itsuffers from the fall outs of softness ahd permissiveness, on the bther, it issubjected [o severe criticism for having draconian laws. As a result, neither theobjectives of strong laws are attained nor the country's image is effectivelyprotected from the onslaught of national and international human right bodiesfor violations.

The fundamental malady is the absence of healthy social and culfuralroots of our democratic institutions, As h result, the role of the criminal law inour society, which seems so clear in its traditional form, has come into seriousquestion. Uncertainty prevails, and question go unanswered. Henry Georgeobserves:

"When demouacy becomes conupt, the best graaitates to the bottoms, the worst

floats to the top and the tile is replaced by the more aile" . We obseraed that wedo not now practice democrncy but graaitate toTt)ards 'democracy' withperceptible participation of criminalr their peraasiae influence.

In the city of Delhi alone in the year 1994 more than 12,000 persons,,accused of one crime or another, escaped punishment. Wilson john in his article"why drey go Scot-Free" observes:

Do you know that 78 per cent of the oiminals escape punishmmt in the city?

Do you know that more than 40 per cent of the persons branded as accused bythe police are either acquitted or dis|harged?

Do you know that out of the 22 per cent conuicted cases, majority are eitheraccident cases or petty offences where the accused haae no choice but to pleadguilty?

Do you know why does it happen?

He finds that the following factors are responsible for the situation. Thecops goof up during the investigations; the prosecutor do not do theirhomework and the judges are overworked and only keen on disposing of cases.

Criminal lustice Ad.ministratbn in MVth and Realitv

The criminals as a result walk out of the prison, honorably acquitted ordischarged and even on the glound that case files are missing.

Let us look at the crime figures:

In the year 7994 only 3,579 persons were convicted in the metropolitancourts whereas the total number of cases decided was 75,675. That makes aconviction rate of 22.83 per cent. As many as 6,L25 persons, rightly or wronglycharged, were acquitted and 568 others were discharged. According to figures(April 98) provided by Delhi Police,94 persons were killed,46 women raped,27cases of rioting were registered and three persons were kidnapped for ransom.And all this only in the first two months of the year (1998). The most alarmingincrease has been recorded in the number of auto-thefts. While in the first twomonths of 1,997,L,722 cases had been reported, in the first two months of 1,998,1,218 cases have been recorded.

The main idea of this paper is not to paint an entirely gloomy picture of thewhole of criminal justice system but to bring in sharp focus what is reallyharrning the very foundations of the criminal justice environment in the country.The reasons are not unknown. I venture to probe into and point out some of themain areas which need attention and pose a challenge to the criminal justicesystem in the country.

Ibeginwith:

The Cops

A large number of the city's investigating officers are ignorant about eventhe basic provisions of the Code of Criminal Procedure and the Indian PenalCode and other laws. In one of the judgments the court pointed out "To say theleast, the investigation done by the investigating officer was shoddy andprobably mischievous". Police officers, most of them are equipped with onlygeneral investigative techniques which they use for all kinds of casesthroughout their career.

Prosecutor

Next pitfall in the systems is at the prosecutor's office where not muchattention is paid to the briefs submitted by the investigating officers. Publicprosecutors are responsible for presenting watertight cases before the trial courtbut in reality, hardly any effort is made to scrutinise the case files and orderrelnoval of lacunae. Prosecutors are over burdened and do not often read thefiles before appearing in the court. The prosecutor plays perhaps the mostcrucial role in the administration of criminal justice because the office occupiesa central and very important position between the police and the courts. In fact,the prosecutor is the "traffic cop" of the criminal justice process. The decisionsthat the prosecutor makes determine how cases that are brought by the policewill be disposed of.

Many attomey become prosecutors without any meaningful experience inthe crirninal justice process and have only a rudimentary knowledge of criminallaw. Part of this problem stems from the lack of preparation that law schools

222 The Citizen and ludicial R{orms

provide in the area of criminal law. Most law schools provide an inadequatecourse in criminal law dwing the entire course of study.

Prosecution failur$ not only speaks on the efficiency of investigatingagency or prosecuting a[ency but also on the ineffectiveness of enacted lawsand total criminal justi(e system of our country. The failure of prosecutionprovides confidence and encouragement to criminals to commit more crimes. Itis high time to rectify the drawbacks in cr[minal justice system to bring a senseof confidence among the law abiding citizens.

Delay

Delay also gives the criminal a lot of time to manipulate the witnesses.Where do we look for justice in our land today? Should we look for it in thecriminal courts where the number of pending cases is counted in millions (25

million to be exact). Or should we look in the civil courts where cases whichtook 20 years for a decision may now take 30? Should we search for it in ihe 18High Courts where the accumulated cases court upto 1.8 million any day now?Or in the Supreme Court where despite the efforts of the highly respected JusticeAhmadi, the number is impossible high? hl consequence the Supreme Court hasnot been effectively and speedily able to serve the purpose for which it wasdesigned, and is becoming just another court of appeal.

Comrption

Lawyers and litigants alleged that corruption is so rampant in the DistrictCourts that it has become an intrinsic part of the system. The primaries of thecorruption cancer are spreading so fast in the criminal justice system at alllevels that it has almost become an imperative necessity to go for a majorsurgical operation as minor cosmetic surgery will not be able to elevate the fastsinking criminal justice administrative system in the country. "Everyone acceptsit and litigants take it for granted that every time they visit the courts compound,they should be prepared to sell out a minirnum of Rs. 50. Bribe starts at the verydoor step where an accused litigant comes face to face with the naib courtAhemad, an important court functionary who is responsible for safekeeping thecourt records. In criminal cases, some of the police documents can be of vitalimportance to the Defense Counsel. Documents like internal police diaries,which are meant for "judge's eyes only fall in the hands of a Defense Counsel,these documents can turn the case around; Ahlmad's fees can range form Rs. 50to Rs. 500, all depending on the case. The files suddenly go missing or the Courtstaff becomes 'extremely busy', a lawyer pointed out. "Pay them Rs. 50 you canhave the entire file. There have been instances where the whole court file hasbeen photocopied and given to litigants.

Witnesses

In our court a witness is treated more shabbily than a criminal. He is notoffered any seat in the court, the public prosecutor ignores him, the court is rudeto hirn, the judge has no time for niceties elther. He is the only person who is leftalone in an alien surrounding and at the errd of the day he is told to come after amonth, He deserves not even a thank vou. Do vou think he will come asain"

Criminal lustice Administration in Myth nnd Reality 222

Such harassed witnesses either turn hostile, go against the prosecution case orchange their addresses.

Judges

The judges say that they are the most harassed, over worked andunderpaid link in the criminal justice system. Every judge has on his roster morethan 50 cases every day, cases which might be several years old, cases whichmight be petty and cases where the counsel are interested in detay rather thanjudgment. Asks a senior Sessions |udge. "How can a judge, after a morning oflong list of bails, hear witnesses, record their evidence in another 50 odd cases".In ihis hurry or collecting brownie points, good CRs, extra bucks, out of furnpromotions the cops, the judges, the prosecutors and the lawyers some how failto realise that out there, in the city there are countless innocent citizens whoselife and property might be jeopardised if criminals continue to outmaneuver thecriminal justice system with such shocking impunity.

Police

With the emergence of New India, the duties of police have becomemultifarious. In addition to its routine duties, the police is supposed to performseveral other duties in the present socio-political environment where law andorder has gained importance over all other issues which matter to the powerthat be. It is an admitted fact that everv policemen sDends more than fifteenhours a day on active duty at the cost of iris perso.,al health and ignoring thewelfare of his family. No one looked eager to share the burden of increasingwork load on police, neither those in authority are able to appreciate in rightperspective the heavy demand on the time of police. Police not only catchcriminals but also provide peripheral services in some areas. It is needless tomention that the police duties have become to wait for long hours on the roadsbecause the protects often travel behind the schedule. Everybody who is part ofthe Govemment, be it senior officer or politician, feels unsafe unless beingescorted and saluted enrorlte by the men in "KHAKI". This duty alone, on anaverage/ consumes more than 20 per cent of the working hours of a police force.Armed house guards and gllrunen standing at one's back are the firstintroduction of, our public representatives and public servants. They lookincomplete and unimportant without these two power symbols. Nearly 10 percent of the total police force of the State is always deployed as standing guardsor gunnen to different categories of VIPs and officers.

Refonns in Substantive Criminal fusticeIn a fast developing society due regard has to be given to make laws

effective. Laws can be an effective tool of social engineering and social justicewhen in the pursuit of this objective the laws are reviewed from time to time. Thesocio-economic changes in the society mandates that our laws in order to meetthe requirements of the present day society must be updated, the proposed areasof reforms in substantive criminal law can be:

1. Criminal law charges and period of limitation.2. Homicide on request/Euthanasia.

224 The Citizen nnd ludicial Reforms

3. Diminished blame worth.iness.

4. Extraordinary child kidnapping.5. Sexual abuse of instifutional inrnates.

Retention of death penalty.

Upward revision of fine amounts prescribed by the IPC.

Some changes as envisaged in the present adversarial system.

Seduction.

Crime against privacy.11. Offences which endanger the person.

12. Transportation hazards.

Reforms in procedural law

Substantive law becomes meaningfui only through the procedural law. Sofar as the citizen is concerned Law is, what is implemented. In other words, themeaning and content of law is determined, to an appreciable extent byprocedural law. Criminal procedure therefore, has a human rights dimension.Procedural Criminal has thus to respond to the changing moods and needs ofthe society and the individual. Among the reforms that have been recentlyeffected and need further investigations are:

Anticipatory Bail

Two decades ago when justice Krishna Iyer declared in a landmarkjudgment,'Bail, not jail'he was talking about every citizen's right to justice. Bailwas the only way an accused could escape the punishment of a jail even beforehe was convicted. But over the years, seeking bail appears to have become anescape for criminals to delay trial, hoodwink the investigators and freethemselves from penance.

There are allegations that more and more criminals are ready to offer heftysums to get bails. There is a need to have a fresh look into the provisions of theentire bail procedure.

Victim

The entire mechanism of justice dispension in the country is meant toprotect the interest of crime victims. It is absolutely logical that the victim mustnot be exposed to a "secondary victimisation" in the criminal justice process.This kind of suffering may not figure ab the first concem of the criminal justiceagencies but it definitely has a bearing on the democratic foundations of theState.

Who is the victim of crime? Broadly, society as a whole; specially, theinjured individual or group; sometimes, the offender himself or his family; attimes, unidentified or unborn persons. \ /hat is the help the law can render tovictims in cases where the culprit is punished or the offender is undetected or isabsolved by some exception or judicial error or holds too high a position wherethe law hesitates to reach or is paralyasdd by the clout of the criminal?

There is also a need to reform lawg relatinq to:

6.

7.

8.o

10.

Criminal Justice Administration in Myth and Reality 225

1. Pre-sentencehearing2. Detention of approvers;3. Requirement of mentioning the age of person sent to prison in the

warrant for prison;4. Prison Reforms: Correctional Justice;5. Reforms in sentences and sentencing: theories of punishment ends of

criminal justice; and6. Accountability, etc.

Conclusions

In the last 50 years we defiled democracy with hooliganism in theLegislatures. We have betrayed coalition Covemment, tho'gh tliey may be theonly way of ruling a country as diverse and as big as ours. We have made thelaw ineffective, and made the police use violence to deal with crime. We havedenied justice to the people. As a result cheats, swindiers, fake investmentcompanies, Gulf job rackets, unscrupulous land agents, corrupt politicians andofficials flourish everywhere. At every comer there is somebody waiting to tripthe unwary citizen. We have given full liberty to the criminal 6y deiaying anicorrupting justice. And we have made politicians feel that the law is unable totouch them for crimes which have made the whole nation despise them.

Admittedly it is not possible to cover all the problematic paradigms ofcriminai justice system in the country. This attempt is a modest one. There is nodoubt that our judicial process has to be completely overhauled to achieve theaims of criminal justice system and the challenges faced by it. The drive towardsa rational society requires a distracting of the elements of criminal law. Themodern regulatory state may be becoming dysfunctional by our futile attemptsat locating general principles of criminal law from only the criminal iusticesystem. By not looking beyond the text of criminal law, we are merely subvertingtexts which have a role in criminal law iurisprudence. The post modernalternative combines legal pluralism, post modem conceptions o? diffusion ofpower. The State is not the only source of rules of law. peopie operate in severalspheres simultaneously and therefore a single set of rules appeir to be uneven,unstable and non slmchronic in the different spheres. Criminal law has to besituational, emphatic and participatory rather than objectively distanced; it hasto be local, but being local - it has also to be total.

To conclude, I admit I may have over emphasized to drive home a point.May be I have offended some but this I have done delibet'ately to give rise to asense of shortcornings. I have also over-exposed the problems faced by our body-politics just to bring low-visibility areas into sharp focus. My defence is onlythat sincerity and integrity is superior to expediency. And, finally, as GeorgeBemard Shaw remarked:

It is not only good for pcopte to be shocked occasionally, but absolutelynecessnry to the progress of society that they should be shocked pretty often.

c5&)

REFORMS IN THE

CRIMINAL JUSTICE SYSTEM

D.R. KaarthikeYan*

Ldiu u, a nation and the people of India are wedded to the concept of rule

of law and supremacy of the Constitution.

The Fundamental Duty, in fact the sine qua non of any Sovemment rc to

govern. The basis of good govemance- is ensuring peace, and .order;ndiroviding reasonable sense of iecurity to life and property of the citizens. Then

fnty it wit Ue possible for any govemment to ensure progress,, development and

provide social, economic and political justice to all the people. To create and

maintain public confidence, the justice rendered has to be inexpensive, speedy/

substantial and unpolluted. Justice must not only be done but also should seem

to be done.

It is common knowledge that the criminal iustice system is on the verge of

collapse. A reasonably good-system has deteriorated over a period of time and

no-it is found to be functioning unreasonably badly'

Delays are so unacceptable that one does not feel that the system is still

functioning.

.Unduedelaydisruptsthewholesystemandresultsingraveinjustice-Justice delayed is justiie denied. Ineffective preventive action, slow and

inefficient investigation, siow and ineffectirle trials' antiquated and outdated

Iaws and p.ocedirres of investigation and trial, lack of commitment and

cooperation on the part of the people have resulted in deterioration of the entire

sysiem to the extenl that the commission of crime has come to be considered as a

low risk high profit business.

An unjust acquittal is as bad for the society as an unjust conviction is for

the individual.

* Former Director, Central Bureau of Investigation and Forrner Director General,

Na tional Human Rights Commission.

Reforms in the Criminal lustice System 227

In such a permissive atmosphere crime naturally flourishes. Whenordinary crime goes unchecked, it becomes a fertile ground for organized crimeand terrorism to thrive.

While the stake holders ultimately are the public at large, the crucial partsare played by the investigating and law enforcement agencies, the prosecution,the lawyers, the parties and witnesses and of course the judiciary.

Each of the players is blaming each other for the sorry state of affairs. If oneanalyses subjectively, each one of them have to accept their share of the blamefor the prese4t hopeless situation of the criminal justice system. Unless each oneof us realize and accept our own responsibility and make efforts to improve thefunctioning of our role, there is very little hope of the criminal justice systemimproving to regain the confidence of the cofiunon man.

I will briefly mention the areas in which attention has to be paid and gointo some more details on some of those aspects.

Laws dealing with procedure, evidence, offences, investigation and courtprocedure and evidence are outdated and totally out of tune with the demandsand challenges of the problems now being faced by the society. Hence the urgentneed for comprehensive law reforms to effectively meet the challenges posed forcir.ilized existence.

Some of the aspects that should be considered are introduction of a systemof pre-bargaining, massive decriminalization of offences, laws for proiection ofwitnesses and victim compensation, appointment of Special or HonoraryMagistrates on short-term basis for trying petty criminal cases which clog up thecriminal justice system and a direction to complete criminal trial within sixmonths.

Modem methods should be adopted for better case management includingincreased use of Computers and iatest Information Technology devices.

There should be a check and limitation on the number of adjournmentsand remands. Once the trial commences, stay should not be granted except incases where grave miscarriage of justice is established.

Recruitment procedures should be revised to ensure that only competentand suitable candidates are appointed as Investigators, Prosecutors andMagistrates.

Training methods should be re-examined and updated to ensureappropriate training is given for sufficiently long periods to the lnvestigators,Prosecutors and the judges. At regr-riar interva.ls in-service training should begiven to these categories of officers as in a dynamic society there will be changesand each of the functionary.should be prepared to effectiveiv deal with suchchanging situations.

The nr.rmber of courts and judges, which are toially inadequate today,should be increased considerably to clear the backiog of the cases and to ensurein futr-rre all the trials are completed expeditiously.

228 The Citizen arul Judicial Reforms

The financial constraint in immediately constructing court buildings andother infra-structure facilities for additional courts can be overcome bv fullvutilizing the infra-structure and holding Courts in the existing buildings in twoshifts - one starting early morning and the other starting late in the afternoon.The co-operation of the lawyers could easily be solicited, as unless the trials arespeeded up public confidence in the entire system cannot be restored.

Limit should be fixed for adjoumments and time for arguments.Submission of written arguments may be encouraged after fixing a time limit fororal arguments. The court should be requested to pronounce judgments soonafter or within a reasonable time after the conclusion of arguments. The copiesof the judgment and other orders should be made available promptly.

The competence of the Bar and the Bench could be improved by makingfive-year law course compulsory and universal and by frequent in-servicecourses and workshops on new emerging fields of law.

Altemate Dispute Resolution Systems like Lok Adalats should beestablished and encouraged in all parts of the country. To get over all thecontroversies on appointments, transfers and postings, All India JudicialService and National Judicial Commission should be established.

Steps should be taken to ensure that no post at any level in the judiciaryremains vacant. This should be done by advance planning and theadministrative action on the part of the Government.

Commissions chaired by sitting judges enjoy greater public confidence.Such Commissions conclude their responsibilities promptly. Hence allCommissions should be headed by sitting judges only. Age of retirement shouldbe considerably raised for Supreme Court and High Court Judges.

Law and Judicial academies of excellence shor"rld be established indifferent parts of the country. Investigation of serious crime should be entrustedto police officers with legal qualificationsr Even other police officers who haveno legai education should be encouraged and provided opportunities to obtain.degtees in law while in service.

Increase in working hours of the courts and reduction of court holidaysshould also be examined.

Crime

Crime is a phenomenon which cannpt be divorced from the social contextnor can the background of the offender be ignored while making an analysis.

Organized crime has its roots in the qhanges coming about in the nature ofsociety in the modern day world. In all regpects therefore it can be said to haveits origin with the advent of modemity.

For quite a few years there has been an increasing clamour againstgrowing criminalisation of socio-economic life in India. In addition to pettycrimes and sireet criminals, over the yeais new types of criminals and crimeshave come to the fore which have assumed menacing proportions as underlinedby various scams and media reports. The new breed includes cdminals who are

apparently suav_e, soft-spoken, well-dressed and well-educated in the formallense.an! socially respectable, politically influenfial and economically,;u;;.Experts have often made analylis on *re basis of certain theories. A'populartheory is the marxit theory of ciime. According to this theory crime is a .dit;frne crass structures. That is to say that lower classes driven to the verge ofp.overty by capitalist structures would nafurally commit crime to survive. Afterall when you-can't expect morality or obedience to the law from a person whostarves. The theorists believe that since crime is concentrated in the iower class,it is caused by poverty or by personar and social characteristics believed to beassociated with povert, including feeble mindedness, psychopathic deviationsand slum-dwellers.

What does motivate people to conmit organized crimes? Those whoindulge in such crimes neither berong to the deprived strata of ,o"i"ry.o. u."they uneducated and influenced by the company of undesirable peoplel

Among the earliest explanations for crimes of the rich and influentiai isgiven by Aristotle:

Men may desire superfluities. in oriler to enjoy pleasure unaccompanied bypain nnd, therefore they commit crimes.

He also believed that ,,the greatest crimes are caused by excess and notbynecessity." Undoubtedly the acquisitive nature of the present d;f ;;;i;tand values subscribed to by the middle class have in no small measurecontributed towards creating

_conditions for the growth of organized crirne.Money gives respectability, and people are respectel for what ttre"y nave or whatposition they hold, not for they are as humanbeings. The end result is that theends have taken precedence over the means. If resiectability can be p"r"nr*athen surely it is a shallow type of respectability. Society doesn,t ,"e#to mpor"any moral restrictions on acquiring riches and power and methods used.

.. R.H. Tawney has said that such societies as had been found today,"assure men that there are no ends other than their ou,n ends, no raw other thantheir desires, no limit other than that which they think advisable. Thus it makesthe individual the centre of his universe and iissorves moral principres into achoice of expediencies."

Police

Poiicemen must rea.lize ttrat they are the most vital service components ofthe.state to society and they are the servants of the people not th"i. ;;;;;\Alhile making.a comparison in number of policemen per thousand of thepopulation India comes low in density wh e compared to other countries in theworld.

The operational effectiveness of the force is thus undermined by its poorstrength. The police is also burdened with enforcement of too -uny lu*". i.orr,this.-it seems quite clear that the police machinery isn't geared to handle thechallenges posed even by ordinary crime let alone organized crime.

Reforms in the Criminal lustice System

Political interference in police is anotherorganised crime. Police has nbw been come to

cause for the emergence .ofbe expected to be used for

230 The Citizen and lttdicia,l Reforms

satisfying the ends of the ruling party. Those officers who do not comply with

the rlqu"ests (or orders) of the political masters are promptly meted out

punishment through postings or transfers. The situation is dismal in some

States.

The criminal-Politician nexus is not a theory but a fact. The politician uses

instruments to hijack independent police functioning. Unfortunately mole and

more officers are dropping their conscience and are willing to be partners to the

endeavours of crirninaLpolitician duo'

Need for Law Reform

Thereissurfeitopinionthatthepresentsubstantiveandprocedtrrallawsare inadequate to deal with the rise in organized crime. There is a need to enact

legislationto give powers and give law the force, wtdch is required to tackle the

-!r,u.". Oerr"etoped countrieJ iike the USA and European countries. have

comprehensive iu-, ott their statute books. Features of these could be

incoiporated. The Indian Penal Code was a statute enacted close to a hundred

and fifty years ago in colonial rule conditions where crimes of the present day

nature could not have possibly been contemplated about'

The Criminal Procedure Code is also in need of review and considerable

changes are calied for in ordet to prevent procedural law from defeating

substantial law.

Mr. Nani A. Palkhivala, eminent Senior Advocate once remarked that',,The triai of a civil suit in Indian Courts is the closest description to'eternity''"Crimlnal cases are not far behind. Trial courts in the country are thronged by

millions, who wait for decades for the disposal of their cases. Be it the shortage

of presiding officets, the lack of the reqrrired number of courts, the complexity of

the legal i.o."rr itself or the all-pervasive callousness, the fact is that the

judicial syitem in its present form is a painful grind on, rather than the last

resort for the common man.

Burden of Proof

Theproblemofwitnessco-operationisreal.Lawcanbethwartedwherewitnesses, because of social pressure, group alliances, or allegiance'

intimidation, threat or offer of money refuse to depose truth on oath and provide

the testimony needed to make successful conviction'

The burden of proof should reflect the need to avoid rendering a judgment

on the basis of an evidentiary package that is unreasonably incomplete,

completeness being measured relative to the total package of evidence that is (or

should have been) reasonably available to the court.

The basis for Burden of Proof and its extent is from weighing the

conseqnences of a mistaken ruling for the prosecution against the conseqrrences

of a mistake.r ruling in favour of the accused in deciding what standard of

persuasion is constitutionally required'

The prosecution (the state) has the burden of proving all the essential

elements, br ultimate facts, of the crlme charged. These include proof of the


criminal act, the accused/s mens rea, that the harm, if any, mentioned in thedefinition of the crime, was proximately caused by accused's criminal act, andthe harm itself, by the standard of proof "beyond a reasonable doubt". I

The accused, on the other hand, generally has no burden of proof, exceptperhaps the burden of creating reasonable doubt in the minds of the factfinderas to the strength of the state's case. The accused may remain silent and offer nodefense, relying wholiy on the presumption of innocence to carry him to averdict of acquittal if he is confident that the state has failed to meet its burden.There is no duty on his part to take the witness stand in order to explainambiguous or apparently incriminating circumstances involving him. Ofcourse, he may testify in his own behalf if so inclined, but if he fails to do so, thefactfinder should not draw from that failure any adverse inference of guilt, andneither the judge nor the prosecutor may comment upon the fact.

The factfinder should withhold judgment at trial until all the evidence hasbeen presented, and, unless the factfinder is convinced that the state has met itsburden beyond reasonable doubt, it should acquit. The same rule does not applyto the prosecution: as to it, the judge may direct a verdict of acquittal or dismissthe charges whenever the judge believes the prosecutor has failed to present aprima fircie case or whery at the conclusion of the state's case-in-chief or at theend of the trial, he could not reach the conclusion that the state had proved allessential elements of the crime beyond reasonable doubt.

It may occur to the average 1ay person that one may best arrive at fullyinformed decisions by hearing from the accused, no matter who ultimately hasthe burden of persuasion as to any element of the crime or tort or allegationmade in the complaint. It is difficult to explain to such a person - especially onthe basis of a privilege against self-incrimination - why a criminal accused isnot expected to do this until and unless the state fully proves its case beyondreasonable doubt.

The concepts that inform the presumption of innocence are:

accountability, responsibility, culpability, liability, and guilt.

Accountability: In modem times this expression means answerable indamages or punishment for one's actions. If a person is morally or legallyaccountable for his conduct, he owes a moral duty to answer questions relevantto that conduct to persons in authority-i.e., to persons who have the officialtask of conducting investigations into suspected misconduct - whenever asufficient basis exists for conducting such an inquiry.

What should be done when an accused or uncharged witness fails orrefuses to render an account of his conduct or of the suspected conduct ofanother? that they should be allowed to refuse to speak without any cost tothemselves is jwt as unreasonable, and, in effect, is a repudiation of any duty toprovide information relevant to a crime. Why should people not be permitted atleast to infer from a suspect or accused's obdurate silence in the face of anaccusation whatever inferences are reasonable under the circumstances? Theadverse inference that many people draw from such silence is that the person

232 The Citizen and ludicial Morms

accused is conscious of his guilt or fault/ keeps his silence rather than talkingand lying because he has something to conceal, and that which he attempts toconceal is probably his involvement in the tort or crime of which he is accusedor is suspected.

We should distinguish between that which causes the motivation or intentfor committing the act and that which causes the result or harm of the act -namely, the act itself. The former is largely a matter for subjective proofinvolving the state of mind of the actor; whereas the latter, the act itself and itsconsequences, is a matter of objective ptoof. The distinction is central to theproper allocation of the burden of proof production between the prosecutionand the defense. The proof of what caused the harm in the objective sense is asavailable to the prosecution as it is to the defense; in other words, it involves noexploration into the mind of the accused, an area inaccessible to the prosecutionexcept by supposition or inference.

Thus, proof of objective cause is properly part of the state's burden ofproduction. Except when an accused's motivation becomes relevant to theissue of identity, rnotivation should not be part of the state's case.

It should be part of the accused's burden to show that he lacked themotivatiory intent, or lack of care necessary to commit the crime. In the absenceof proof on the accused's behalf, the court ihould be permitted to infer from theaccused's acts and the circumstances that he intended the natural and probableconsequences of the act, or, if negligence is the required mens rat and if the harmwas one that does not ordinarily occur in the absence of negligence, that thestate of mind was negligent.

\A/hy are such onerous standards irnposed on the state while it is sufficethat the accused just creates a reasonabl,e doubt about the state's case in themind of the judge to eam him an acquittal. The reasons traditionally held outare:

(1) the stigmatizing effect of a crimihal conviction; and (2) the nature andseverity of the sanctions applied in each.

The most common rationalization given for the higher and stricterstandards and rules in criminal cases is the greater severity of its sanctions(punishments) as well as its social consequences (stigma, disrepute). Anothercommon rationalization is the greater need in criminal cases for protection ofthe individual against the massive forces and resources of the state. Both ofthese may have been true in the past, but they are far less true today.

Today, in the present social milieu, loss of reputation and social standingcounts for little among the vast majority of lower-class offenders, especiallyjuveniles, and in the higher ranks of society, wealth, celebrity, and mobility oftenremove the stigma of a criminal conviction.

Attempts ought to be made to lighterr the burden of prosecutors in provinga prima facie case in criminal and while imposing on the accused the duty ofproducing evidence regarding the accused's mental state at the time of theincident, mens rea, intent, recklessness, or negligence and regarding any excuse


or affirmative defense he may have, once the prosecutor has rrrade its prima Iaciecase. It reduces the prosecutor/plaintiff's initial burden of production toproving that the criminal act was committed by the accused or accused's act,that the act caused the injury (if any) required by law and suffered by the state orvictim, and that there was no justification rendering accused's act privilegedand non-actionable. Once this proof is made, the burden shifts to the accused toprove his non-culpability (or to create a sufficient amount of doubt about hisculpability) and/or the existence of a complete or'partial excuse or affirmativedefense.

The possibility exists that the society, increasingly frustrated over theoperation and frequently bizarre results of our justice system and once madeaware of the fact that there is a reasonable altemative drat will not deprive themof their liberties, will be prepared in the future to force these changes.

Therefore once the prosecutor/plaintiff has introduced sufficient evidenceof the above to satisfy the trial judge that a prima facie case has been presented,the burden of going forward in producing the following evidence shifts to theaccused:

(a) that the accused lacked the requisite mens rea, intent, knowledge,recklessness, or negligence; and/or

(b) all the necessary elements of whatever complete or partial excuse oraffirmative defense the accused has raised in his plea or pleading.

(4) At the end of the trial, the court must: (a) be persuaded that all of theelements of the crime or tort for which the accused is on trial have been proven,regardless of which side bears the burden of production; ft) decide whether thecriminal act was legally justified if such justification is claimed; and, (c) decidewhether an excuse or affirmative defense raised bv the accused has been provedto the level required.

We may consider law in favour of admissibility of confessions andenabling sanctions against failurb to reply to questions. ln Rnjasthan v. Union oflndia, 7978 (1) SCR 1, the Supreme Court obsewed "it must be remembered thatmerely because power may sometimes be abused, it is no ground for denying the

existence of power. The wisdom of man has not yet been able to conceive of agovemment with power sufficient to answer all its legitimate needs and at the

same time incapable of mischief".

Similarly, "The possibility of abuse of a statute otherwise valid does notimpart to it any element of invalidity". ln Kesaoananda Bhnrati v. State of Kerala,

1973 Supp SCR 1, Khanna j. observed as follows at page 755:

"ln exercising the power of judicinl reuiew, the courts cannot be obliztious ofthe praetical needs of the goaernment. The door hns to be IS open for trinl anderror. Constitutional Inzu like other mortal contrioances has to take some

chances. Opportunity must be allowed for oindicnting rmsonable belief fuexperimce."

The present adverse trial system is exhaordinary. The judge, who might be

better described as a referee, is extremely passive in this system. The adversary

tJ4 The Citizen and ludicial Reforms

system has often been described as a garne or contest, whose only purpose iswinning for one's client rather than elucidating the facts, clarifying the law, ordoing justice.

Protection of Victims and Witnesses

Generally, law does not permit the use of anonymous or disguisedwitnesses (though they may be coded witnesses) even in situations where theaccused or her associates threaten the physical safety of the witnesses. Insteadthe criminal justice system ought to protect witnesses, including victims,through other means. Among such protective measures are the pre-trialincarceration of the accused and, in extreme situations, witness protectionprograms.

When a threat to a witness emanates from unrelated third parties, as mightbe the case for undercover agents, the courts permit the exclusion of suchspectators or a total closure of the proceedings to the public, including the press.Such exclusions will be narrowly construed so as to violate either the accused'sconstitutional right to a public hial or the freedom of speech or of the press.

The women's rights movement with its focus on the (female) rape victimprovided the starting point for the victim's rights movement which aims toimprove the position of the victim (and of witnesses) within the criminal iusticesystem. Some state constitutions and state laws assure the crime victim andother witnesses of safety and protection.

Therefore, protective measures have to focus on pre- and post-trialprocedures, including the detention of the accused prior to trial to prevent himfrom endangering any witnesses' life or health and the placement of witnessesin the witness protection program. These protections are designed toguarantee the integrity and effectivenesg of the criminal justice process. Werethe public's belief in the criminal justice system undermined and witnessesafraid of being retaliated against by the accused or his associates, the statewould be severely hampered in investigations involving those types ofcriminal activity in which witnesses would expect to be threatened andintimidated. Witnesses might not only fefuse to testify in open court but bereluctant to co-operate with law enforcement gelerally.

The safety of a wihess andlor her family might be endangered at differentstages in a criminal investigatiory often depending on the type of case andthreat involved. Many of the prosecutions of organized crime figures andterrorists have to be put on indefinite hold because crucial witnesses aremurdered or threatened or injured prior to testifying in court. Most of theendangered witnesses in those cases were inlormants who had fumed againstthe symdicates and were willing to testify against them.

Either the accused himself or other girng members often attempt to preventthe witness, usually an innocent victim or bystander, from testifying. They mayaccomplish this either through direct, i[egal pressure which includes onlyslightly veiled threats or through the creatlon of an atmosphere of fear in a gang-dominated neighbourhood. hr the latter case, the potential wibress may refuse to


testify because one perceives oneself or the family to be threatened even thoughno direct threats were ever uttered.

In such situations, a witness might be more willing to testify if he wereguaranteed anonymity or some form of physical disguise. The prirnaryconstitutional obstacle to shielding a witness's identity from the accused at trialis the right to fair and public trial interpreted. But In-Camera proceedings havebeen held to be constitutional (under Kartar Singh, etc.).the constitutional rightsprotect the accused by limiting the admission of hearsay evidence at trial and byallowing for extensive cross-examination. The latter rationale applies to thepotential testimony of anonymous witnesses since non-disclosure of a witness'sidentity inevitably limits the breadth of cross-examination, and therefore theaccused's ability to test the witness's veracity adequately.

Within the last hvo decades the rather limited rights of victims and ofwitnesses in criminal proceedings generally have been challenged as toorestrictive, particularly when being contrasted with the often broadly construedrights of defendants. The most dramatic protection of the victim's privacyinterests grew out of the women's movement. The so-called rape shield ruleswhich restricts the accused's right to cross-examine the victim in a rape case

about her sexual history inherently limits the accused's right to confront thewitnesses against him.

"Clause 14 of the Bill contains provisions for protection of witnesses.Sub-clause (1) says that notwithstanding anything contained in theCode of Criminal Procedure, the proceedings under the Act may be heldin carnera if the Special Court so desires. It may not be fair to ieave thisdiscretion totally unregulated or unguided. It would be fair and properto provide that the Special Court shall record its reasons for holding thetrial ln camera. Sub-clause has accordingly been modified. Sub-clause(2) empowers the special court to take appropriate measures for keepingthe identity and address of a witness secret if it is satisfied that the lifeof a witness in any proceedings before it is in danger. Of course, thecourt has to record the reasons for taking such measures. This powercan be exercised either on the application made by the wibress or by the

public prosecutor or s o motu. Stb-clause (3) of clause 14 specifies some

of the measures contemplated by sub-clause (2). The measures specifiedin sub-section (3) are (a) holding of the proceedings at a place to bedecided by the special cour! (b) avoiding of the mention of the namesand addresses of the witnesses in its orders or judgments or in anyrecords of the case accessible to public; (c) issuing of any direction forsecuring that the identity and addresses of the witnesses are notdisclosed and (d) passing orders to the effect that it is in the publicinterest that all or any of the proceedings pending before such a courtshall not be published in any manner. In para 5.15 of its WorkingPaper, the Law Commission had opined that while it may be necessaryto protect the wilness by keeping his identity and address secret, theright of the accused to cross-examine such witness must also beprotected at the same time. It was observed that there may be several

zJo The Citizen and ludicial Reforms

methods by which effective cros$-examination could yet be undertakenwithout disclosirig the identity antl address of the wibress.Accordingly, it was suggested that paragraph (c) of sub-clause (3) ofclause 14 may be substituted by tlre following:-"(c) The making of necessary nftangemmts for securing that the identity and

address of the witness is not disclosd nm during his cross-examinntion" .

At the seminars, two conflicting viewpoints were projected. One set ofparticipants submitted that no effective cross-examination was possibleunless the identity of the witness was known to the accused and hiscounsel and that therefore concealing the identity of the witness wouldreally mean denying to the accused an effective opportunity to cross-examine the witness. The proponents of this view emphasized

-the

absolute necessity of affording to the accused a reasonable opportunityto cross-examine the wihress. On the other hand, certain otherparticipants stressed the necessity of concealing the identity of thewitness from the accused and his counsel in cases where such a coursewas necessary for protecting the life or safety of the wihress and hisrelatives. They also emphasized the practical difficulty in procuringwitnesses in such matters and submitted that if a person yet cameforward as a witness but apprehended danger to his life on thataccount, it was the duty of the court and the State to provide himprotection.

We have considered both the points of view. Sub-clause (3) is indeedillustrative of the provision contained in sub-clause (2). In other words,sub-clause (3) is not an independent provision but a continuation andelaboration of sub-clause (2). This means that before taking any of thesteps elaborated in sub-clause (3), the special court has to be satisfiedthat the life of a particular witness is in danger and must also recordreasons for formation of such satisfaction. The requirement of law thatthe court must be satisfied that the life of the witneis was in danger andthe further requirement that the special court is bound to reCord itsreasons Jor forming such satisfaction are adequate safeguards againstabuse of the power conferred by sub-clause (2) upon the special iourt.Sub-clause (2) is based upon the doctrine of necessity, a cruil necessity.It obviously takes note of the fact that the life of witnesses deposingagainst terrorists may be in danger in many cases and provides for suchcases. Sub-clause (2) which in reality includes sub-clause (3) within itsfold, is an exception rather than the rule. Since the power is given to thecourt, apprehension of its misuse carmot be lightly presumed. Indeed,so far as the right of cross-examination of the accused is concemed, it isundoubtedly a very valuable and effective instrument enabling theaccused to defend himself appropriately and effectively, but this right ofthe accused has to be balanced agairut the interest of the society andmay have to be modified where the interest of society does call foi suchmodification. All this discussion only means that if ti-re court is satisfiedthat for the reasons mentioned inr the sub-clause, it is necessary to keep


the identity and address of the wihress secret, it may have to take

appropriate measures and make necessary arrangements for ensuringboth the right of cross-examination and the protection of the witness. Inthis behalf, it may be relevant to notice the judgment of the Supreme

Court in Knrtar Singh, (1994) 3 SCC 569, at pages 688-689 sub-para 1l ofthe summary in para 368. We dre also of the opinion that the power ofthe court to take appropriate measures to permit cross-examinationeven while protecting the identity of the wittess must be deemed to be

implicit in sub-clauses (2) and (3) as they are found in the Bill. It is notreally necessary to amend any of the paragraphs in sub-clause (3) as

proposed in para 5.15 of our Working Paper inasmuch as the Bill does

not propose to take away the right of cross-examination. The suggestion

for substitution of paragraph (c) in sub-section (3) made by the LawCommission in the said para is accordingly withdrawn keeping in viewthe opinions expressed in the seminars'"

Perjury to be punished

Speaking truth is a moral, ethical and legal principle. Law expects everyone to speak the truth. Then only justice can be done.

One of the main reasons for the larger number of unsuccessful

investigations, unsuccessful trials, poor convictions and low image of the entire

criminil justice system is peoPle - witnesses saying falsehood even under oath.

It has become the rule. The result is in a large number of cases the witnesses

commit perjury and make a mockery of the entire system. The recent instances

are whai happened in BMW case and jessica Lal case. There is neither fear of

God nor that of the law. The law demands every one to speak the truth at every

stage of the proceedings. Pleadings have to be verified as true both under the

CPC and under the Cr PC. While in other countries one dare not commit perjuryhere in our permissive society perjury goes unpunished. Hence the need for

shengthening the law of procedure and punishment for committing pe4ury.

Law Reform, even to the extent of making criminal justice system effective,

is a vast subject. In this presentation only an attemPt has been made to refer to

some of the aspects in broad terms, focusing little more attention on couple ofaspects like protection of witnesses and burden of proof.

The criminal law deals with changes in the society, which happens all the

time and hence the changes in the law, procedure and practices also should be

dynamic.

We have to ensure jwtice to the victims and justice to the society. We have

to balance the rights of individual and the rights of the society and the nation. Ifthe present deteiioration is allowed to continue, very soon not ottly th9 rights ofthe individual but the collective rights of the individuals constihrting the society

will also be seriously violated.

Hence there is a need for total revamping of the Crirninal fustice System

without any further delay. This is the only way to save the system and the entire

State from total collapse.

(a&)

IMPACT OF JUDICIAL ACTTVISM ONPERSONAL LAWS*A CASE STUDY

K.M.H. Rayappa-

Justice Punchi in Chand Dhawan v. rawaharlal Dhnwanl posed the questionin the context of permanent alimony. rA/hether payrnent of alimony is adinissiblewi,thout the relationship behveen the spouses being terminated? In the

:::il":i.l:i.:l1 1"jh,*, what probably the Hon,ble judgmenilo say was:

Introduction

Dean, Faculty of Law, University Law7993 Cr LJ 2930.

could the matrimoniai court pass _an order for permanent alimony andmaintenance without granting relief in a matrimonial case? when a" c.,,l"rr,rsrldrrre wrrrlour grantng relet ln a matrimonial case? When a court

ies a decree granting judicial separatidn or restitution of conjugal rights itl::"1",^. il\: 1l order for allmonl and maintenance though [UtiJnsrripeen the spouses is not terminated. Similarly, when it pisses a decreet18-1

_l1.ttrFe,void, it does not terhinate the relationship as there wasno relationship between the parties. yet, it has power to make an order forment alimony and maintenance.2 Indian mairimoniar laws causes andreliefs have been derived from English Law, whether it is Hindu,

,l,"lt'1,ly and Muslim Law. TakeJor instance, after 19503 Er.,giJ,,:::"3]" .*j?-. Td" great strides. Alimony and maintenan;;;;;;;;lro.ren ancl thetr education are no longer ancillary matters. Once aatrimonial court is seized of a matrimonia] cause, it continues to exerciserisdiction on all matters even if no relief is granted in the matrimonial cause.

"Permanent maintenance and Alimony: When petition is a matrimonial cause isdismissed "by Dr. paras Diwan, Journil of the tiraian t-aw Institute, vor. 37,199sApril-June, p. 246.

Matrimonial Cause Act, 1950.

238

Impact of ludicial Actiaism on Personal Laws-A Case Study 239

Criminal Procedure Code - Right to Maintenance

According to section 125(1) Cr PC the following is entitled to claimmaintenance under such circumstances. The wife, who is unable to maintainherself, is entitled to claim maintenance. She may be of any age minor or major.The term "wife" includes a woman who has been divorced by or has obtaineddivorce from her husband and has not remarried.l This extended definition of"wife" had been considered necessary in Muslim Law in view of the existenceof some peculiar ruies permitting a husband to divorce his wife at any time athis will. The inclusion of "divorced wife" in the definition of "wife" wasintended to prevent the unscrupulous husband frustrating the legitimatemaintenance-claim of their wives by just divorcing them under the abovesaidpersonal laws and was aimed at securing social justice to women belonging toproper classes.'

The position of divorced Muslim Women in India was thoroughlyexamined in the landmark judgment of the Supreme Court in Shaft Bano case3.Itwas deserved that section 125 of Cr PC was enacted in order to provide a quickand summary remedy to a class of persons who were unable to maintainthemselves. Under the Muslim personal law, the husband is bound to pay Mahrto the wife as mark of respect to her. Thus the law is that there is no conflictbetween the provisions of section 125 and those of the Musiim husband'sobligation to provide maintenance for a divorced wife in case she is unable tomaintain herself. It is also important to maintain here that a man may marry awoman for love and he cannot divorce his wife.

The Supreme Court in Shah Bano Begum case has held that although theMuslim Law limits the husband's liability to provide for maintenance of thedivorced wife to the period of iddat it does not conntenance the situationenvisaged by section 125 of the Code of Criminal Procedure. The court held thatit would be incorrect and turjust to extend the above principle of Muslim Law tocases in which the divorced wife is unable to maintain herself. The courttherefore, came to the conclusion that if the divorced wife is able to maintainherself, the husband's liability ceases with the expiration of the period of iddatbut if she is unable to maintain herself after the period of iddat, she is entitled tohave recourses to section 125 of the Cr PC.

The religion professed by a spouse or spouses has no relevance in thescheme of these provisions whether they are Hindus, Muslims, Christians or theParsis. It is submitted that section 125 Cr PC is part of the Code of CriminalProcedure and not Civil Law, which defines and governs rights and obligationsof the parties belonging to particular religion like the Hindu Adoption andmaintenance Act, the Shariat, or the Parsi Matrimonial Act.

1.

2.

Explanationby to sec. 125(1) Cr PC.

"Right of maintenance to Indian Women" by Anjani Kant, Journal of the IndianLaw Institute, Vol. 38, 1996 July September, p. 392.

Mohammed Ahmed Khnn v. Shah Bano Begum. AIR 1985 SC 945.


In Deninl Latifi Anor v. Union of lndial the husband was claimingexemption on the basis of section 127(3)(b) Cr PC on the ground that he hadgiven to his wife the whole of the sum which, under the Muslim Law applicableto the parties, was payable on such divorrce while the woman contended that hehad not paid the whole of the sum, he had paid only the mahr and iddatmaintenance and had not provided the mata i.e., provision or maintenancereferred to in the Holy Quran, Chapter II Sura 241. The Supreme Court afterreferring to the various text books on Muslim Law held that the divorced wife'sright to maintenance ceased on expiratiorr of iddat periodbut the Supreme Courtproceeded to observe that the General propositions reflected in these statementsdid not deal with the special situation where the divorced wife was unable tomaintain herself. In such cases, it was stated that it would be not only incorrectbut uniust too in those test books in which a divorced wife is unable to maintainherself and opined that the application of those statements of law must bereshicted to that class of cases in which there is no possibility of vagrancy ordestitution arising out of the indigence of the divorced wife. The Supreme Courtconcluded that these suras leave no doubt that the Holy Quran imposes anobligation on the Muslim Husband to make provision for or to providemaintenance to the divorced wife. The Judicial enforceability of the Muslimdivorced woman's right to maintenance tnder section 3(1)(a) of the MuslimWomen (Protection of Rights on Divorce) Act, L986 has been subjected to thecondition of husband having sufficient means which, strictly speaking iscontrary to the principles of Muslim Law as the liability to pay maintenanceduring the iddat period is unconditiona[ and cannot be circumscribed by thefinancial means of the husband. The purpose of the Act appears to be allow themuslim husband to retain his freedom by avoiding payment of maintenance tohis erstwhile wife after divorce and the period oI lddat.

A careful reading of the provisions of the Act would indicate that adivorced woman is entitled to a reasonable and fair provisions for maintenance.It was stated that parliament secures to intend that the divorced woman getssufficient means of livelihood, after the divorce and, therefore, the word"provision" indicates that something is provided in advance for meeting someneeds. In other words, at the time of divorce the Muslim husband is required tocontemplate the future needs and make preparatory arrangements in advancefor meeting those needs. Reasonable and fair provision may include provisionfor her residence, her food, clothes and other articles. The exr:ression "within"should be read as "during" "for" and this cannot be done b-ecause the wordscannot be construed contrary to their meaning as the word "within" wouldmean that "on or before" not beyond. The expiration of ttre iddat period, thehusband is bound to make and pay a maintenance to the wife and if he fails todo so then the wife is entitled to recover it by filing an application before themagistrate as provided in section 3(3) but not where the Parliament has

1. The Law Report of India, 2001 Vol 4 p. 36 (Justice Rajendra Babu has deliveredthe opinion of the court and other four of his brother judges, Pattanaik D.P.Mahapatra, Doriswamy Raju and Shivaraj V. Patil, JJ) concurred with him.

Impact of lttdicinl Actiuism on Personal Laus-A Case Study 241

provided that reasonable and fair provision and maintenance is limited only forthe period of iddat and not beyond it. It would extend to the whole life of the

divorced wife unless she gets married for a second time.r

While upholding the validity of the Act the Supreme Court has sum uP itsconclusions:2

(1) A Muslim husband is liable to make reasonable provision for the futureof the divorced wife which obviously includes her maintenance as wellsuch as reasonable and fair provision extending beyond the iddatperiod in terms of section 3(1)(a) of the Act.

(2) Liability of Muslim husband to his divorced wife arising out of section3(1Xa) of the Act to pay maintenance is not confined to iddnt period.s

(3) A divorced Muslim woman who has not remarried who is not able tomaintain herself after period of iddat can proceed as provided undersection 4 of the Act against her relaLives who are liable to maintain herin proportion to the properties which they inherit on her deathaccording to Muslim Law from such divorced woman including herchildren and parents. If any of the relatives being unable to paymaintenance, the magistrate may direct the state Wakf Boardestablished under the Act to pay such maintenance.

(a) The provision of the Act do not offend Articles 14, 15 and 21

Constitution of India.

Conclusion

The effect of various interpretations placed on suras 241 and 242 ofChapter II of the Holy Quaran has been referred to ln Shah Bano's case vividlyenunciated what the present judicial activism would be. It made distinctionbefween the provisions to be made and maintenance to be paid. It was notifiedthat the maintenance is payable only upto the stage of idtlnt and this provisionis applicable in case of a normal circumstances, while in case of a divorcedMuslim woman who is unable to maintain herself she is entitled to get mata.

The Muslim law should be amended and incorporate the provisionrelating to the divorced Muslim woman's mata after the period of iddat, theronly the injustice done to the divorced Muslim woman by her former husbandshould be rectified or otherwise the active Indian Judiciary will create new ruleof iaw to protect the interest of divorced, destitute Indian Women irrespective ofthe religion.

(,6&)

of the

1.

2.

2

Ibid., p.52.

lbicl., p.57.

Ibitl.

Part Vl

juucrALACCOUNTABILITY AND

CoNTEMPT |unlsDrcrroN

CONTEMPT ]URISDICTION-ITS PARAMETERSMohd. Sardar Ali Khan*

The object of this paper is to discuss the concept of contempt jurisdictionand the parameters within which such jurisdiction has to be exercised. It wasLord Diplock who ip the case of Attorney General v. Times Newspapers Ltd., (1924)AC 273, observed a$ follows:

"The proaision of a system fur the administration of justice by courts of lawand the mai4tenance of public confdmce in it are essmtial if citizens are to liaetogether in peaceful asnciation with one another. 'Contempt of Court, is ageneric term desciptioe of conduct in relation to particular proceedings in ncourt of law which tends to undermine that system or to inhibit citizms fromaoailing themseloes of it for the settlement of their disputes. Contempt of courtmay thus take many forms".

Again, in the same case Lord Simon is credited to have expressed hisopinion that the Law of Contempt is meant to ensure the effectiveadministration of justice and it is the law which vindicates the public interest indue administration of justice. It was also observed that the law does not exist toprotect the personal dignity of the judiciary nor does it exist to protect theprivate rights of parties or litigants. Indeed, in a sornewhat ancient case inJohnson v. Grnnt,7923 SC 789 at790, Lord Clyde observed thus:

"The phrase'Contempt of Court' iloes not in the least destibe the true nntureof the class of offence with which we are htre concuned. The offence consists ininterfeing with the administration of the law; in impeding and peroerting thecourse of justice. It is not the dignity of the court which is offended - a pettyand mislmding aiew of the issues inoolaed - it is the fundamental supremaiyof the law which is challmged" .

In comparably recent times in a celebrated jud gment in Monis v . The CroumOfice,7970 (2) QB 114,lord Deruring MR observed as follows:

" Judge, High Court of Andhra Pradesh, Honorary Dean, Faculty of Law, OsmaniaUniversity, Hyderabad (Andhra Pradesh;.

245

lhe Citizen and ludic zl Reforms under Indian Polity

"The phrase 'Contempt in the fnce of the court' has a quaint old fashioned ringabout it, but the importance of it is thus: of all the places where law and ordermust be maintained, it is here in these courts. The course of justice must not be

deJlected or interfered with. Those who strike at it strike at the aery foundationsof our society. To maintain Inw artd order, the judges haae and must hnoepower at once to denl with those who offend against it. It is a great power -pozoer instantly to imprison a person without a trial - but it is a necessarypower" .

The Law of Contempt, as it developed in England, and has culminated inthe shape of an Act, known as the 'Contempt of Courts Act, 1981' was evolvedover a number of years from the principle of common law. In terms of legalhistory it was named as " contemptus curiae" and it continued to play a key rolein protecting the administration of justice and making it more effective. With thepassage of time the concept of law also has undergone a change and it haddemonstrated a remarkable flexibility to adapt itself in accordance with thechanging conditions. Its overall object of the Law of Contempt has always beento maintain the 'supremacy of the law'. Moskovitz in his classical work'Contempt of injunctions, civil and criminal' has described the contempt as theproteus of the legal world assuming an almost infinite diversity of form andrising to the occasion to meet the diverse forms of challenges which aimed tointerfere with the course of justice. Hence, it is clear that the concept of Contemptof Court and the way it has been made punishable constitutes a corner stone tfthe administration of justice. As pointing out earlier, there is a remarkableunanimity of judicial opinion that in a matter of contempt it is not the dignity ofthe court which is involved but the overall juristic question is one relating to thefundamental supremacy of the law. It is the concept of supremacy of law whichis challenged in a case of contempt, civil or criminal, by a person and it mayvery well be true that a shrewd persuasive lawyer may hy to ignite the eye of theJudge by levelling the charge that it is the personality of the Judge which is heldto be in contempt and therefore, the contemnor must be punished in accordancewith law. Such a course of action runs contrary to the very grain of the law ofcontempt as it has been observed by F.A. Mann in (1979) 95 LQR 348 that,however, uncertain its definition and scope may be in some respects Contemptof Court is undoubtedly one of the great contributiors the common law hasmade to the civilised behaviour of a large part of the world, or to put morebluntly in the words of Chief Justice Mc Kean of the United States, expressed asfar back as 1978, that:

"The question seems to resolae itself into this, whether you shall bmd to theIaw, or the law shall bend to you, it is our duty to determine that the formershall be the case" .

Since the law of contempt is a creahlre of common law, it is regarded as aninherent power ef the court to punish for the contempts committed of the orderspassed by the court. ln most of the comrnonwealth jurisdictions the concept ofthe law is preserved as a principle of corlmon law. For instance, in CanadiandNew Zealand contempt is the only crime that can be prosecuted at common law.

Contempt lurisdiction-lts Parameters 247

However, in England where the contempt has originated it has been given theform of a statute and parts of such criminal contempt dealing with publicationsinterfering with the course of justice and in parlicular legal proceedings are nowcontrolled by the Contempt of Court Act, 1981.

ln Barada Knnta v . Registrar, Orissa High Court, AIR 1974 SC 710 the broadprinciples which govem the judicious exercise of the jurisdiction were laiddown by Iftishna lyer, f . in the following words:

"The cornerstone of the contempt law is the accommodation of two

constitutional aalues - the right to free speech and the right to independentjustice. The ignition of contempt action should be substnntinl and malafudeinterference with fearless judicial action, not fair comment or triainl reflections

on the judicial process and personnel" .

Article 215 of the Constitution of lndia provides that every High Courtshall be a court of record and shall have all the powers of such a court includingthe power to punish for contempt of itself. Under Article 129 the Supreme Courtis constituted as a court of record and shall have all the powers of such a courtincluding the power to punish for contempt of itself.

In the back-ground of the foregoing, it is now proposed to make a criticalstudy of the provisions of the Contempt of Courts Act, 7971. (Act 70 ot 7971).

This Act attempts a codification of law of contemPt existing in India andincorporates the concepts of the principles of common law which wereobtainable in England. The preamble of the Act itself says that it has beenpromulgated with a view to define and limit the powers of certain courts inpunishing contempts of courts and to regulate their procedure in relationthereto. The scheme of the Act is that the term "Contempt of Court" has beendivided into two pafts, aiz., one dealing with the civil contempt and the otherone with the criminal contempt. Under section 2, 'Civil Contempt' is defined as

wiltt:l, disobedience of any judgment, decree, directiorL order, writ or other processof a court or wilful breach of an undertaking given to a court. A 'CriminalContempt' on the other hand mearu the publication (whether by words, sPokenor written, or by signs or by visible representatioru or otherwise) of any matteror doing of any other act whatsoever which scandalises or tends to lower theauthority of any court or prejudices or interferes with the due course of anyjudicial proceeding or obstructs the administration of justice in any manner.Sections 3, 4 and 5 are concemed with the question of defences that may beavailable to a person who is charged with contempt. For instance, under section3 it is provided that innocent publication and distribution of matter does notcome within the purview of contempt. Similarly fair and accurate report ofjudicial proceedings or fair criticism of judicial act is not a contempt. Undersection 7 of the Act, a publication of information relating to proceedings inchambers or in camera except in certain cases do not come within the purviewof contempt. A mention of the above is made only to indicate that these defencesare available to a person as a matter of statutory right for the alleged contemptcommitted by him but under section 8 any other defence which could be a validdefence in any proceedings for contempt of court is not excluded and such a

248 The Citizen and ludicial Reforms under lndian Polity

defence will also be available to a person who is charged with contempt. Thejurisdiction of the courts in krdia is confined under section 9 of the said Act inso far as it provides that nothing contained in the Act shall be construed asimplying that any disobedience, breach or publication or other act ispunishable as contempt of court which would not be punishable under the Act.It, therefore, means that an act to fall within the purview of contempt must beone which becomes the contempt by reason of the provisions of Act. Any otherAct which does not come within this category will not be construed as contemptof the court. The second aspect of the jurisdiction is that the High Court, beingthe court of record under Article 215 of the Constifution, as stated above, has thejurisdiction, power and authority to punish in respect of contempt of courtssubordinate to it as it has the jurisdiction to punish contempts of itself. The extraterritorial effect of the jurisdiction is provided under section 11 of the Actwherein the High Court has been empowered to exercise its jurisdiction to try acontempt of itself or any court subordinate to it, whether the contempt is allegedto have been committed within or outsidd the iocal limits of its jurisdiction andwhether the person alleged to be guilty of contempt is within or or,rtside suchlimits. A deeper study of these provisions of the Act clearly leads to theconclusion that there are certain basic features which are peculiar to the law ofcontempt. As for instance, the power of a High Court to punish a person for thealleged contempt ,which may be committed outside the local limits of itsjurisdiction when the person who is guilty of contempt also happens to beresiding outside the territorial jurisdiction of the court. It may also be mentionedthat there is a procedure laid down in section 14 of the Act wherein the SupremeCourt or the High Court has been empowered to punish persons who commitcontempt in the face of the Supreme Court or the High Court, as the case may be.ln so far as the criminal contempt is concgrned, the Supreme Court or the HighCor.rrt, under section.15 ol the Act, is ernpowered to take action on a motionmade by the Advocate-General or any other peqson with the consent in writingof the Advocate-General. ln the case of any criminal contempt of a subordinatecourt the High Court may take action on a reference made to it by thesubordinate court or on a motion made by the Advocate-General or in relation toa Union territory by such Law Officer as the Central Government may bynotification in the Official Gazette specify. The Supreme Court has beenempowered to exercise the powers to take action in case of a contempt on amotion made by the Attorney-General or the Solicitor-General.

It is significant to note that a Judge or a Magistrate or any other personacting judicially may also commit contempt of his own court as any otherindividual under the provisions of the Act. Therefore, a behavionr unbecomingof a Judge or a Magistrate or a person acting judicially may constitute an act ofcontempt on the part of such a Judge or Magistrate, as the case may be, of thecourt in which he is sitting. Section 19 of the Act provides for an appeal from adecision of the single Judge to a Bench of not less than two Judges and from thedecision of the Bench to the Supreme Court. The appellate court has the powerunder sub-section (2) of section 19 to order that the execution of the punishmentor order appealed agairut be suspended or if the appellant is in con?inement he

Contempt I u risdi ctiott-lts Parameters 249

may be released on bail. The further embargo on the exercise of contemPt ofjurisdiction is provided under section 20 as it prol'ides that no court shallinstigate any proceedings for contempt either on its own motion or otherwiseafter the expiry of a period of one year from the date on which the contempt isalleged to have been commifted.

The above discussion of the general scheme of the Act is made with a viewto indicate the parameters of the jurisdiction of the courts in India in matters ofcontempt, civil or criminal, as the case may be.

Parameters

It is submitted that the jurisdiction of the court in matters of contempt, civilor criminal, is one which has to be exercised with great care and caution. Thecourt will have to, on the one hand, ensure that the supremacy of law isestablished and is not challenged by anyone and, on the other hand, it also hasto take a pragmatic view of a particular situation keeping in view the facts thatmay be existing in a particular case to determine whether achrally contempt has

been committed by a person who is charged with an offence of this nature. Itwas again Lord Denning who expressed l$:opinion that he will never use thisjurisdiction as a means to uphold dignity of the judiciary which must rest onsurer foundation and it was Stephenson Ll in Bnlogh v. Crou,tt Court at St. Albnns,1975 QB 73 at 75 who admirably summed up the contempt power beingsalutary as well as dangerous in the following words:

"lt is salutary because it giaes those who administer justice the protectionnecessary to secure justice fur the public, dnngerous because it depriaes a

citizen of the protection of safeguards considered generally necessary to secure

jttstice for him" .

\A/hat do these well-settled judicial dictums point at? The essential featureof the preponderance of the judicial opinion on the subject to the mind of theauthor of this paper is an inherent signal to the Judges that they should guardagainst the over-use of their contempt powers in order to ensure that the processwhich is to prevent interference with the administration of justice does notdegenerate into an oppressive or vindictive abuse of power by the courts. \Atrhat

has come to be known as'Parashuram's case' (i.e. Parashurnm Deterant Shnmdasantv. King Emperor, 7945 AC 264 Lord Goddard C| had expressed the opinion thatthe contempt power is a power which a court must, of necessity, possess; itsusefulness depends upon the wisdom and restraint with which it is used. It willbe no exaggeration to say that perhaps in no other field of jurisdiction the courtis required to rise above petty considerations or prestige and power and lookstraight into the face of the majesty of law as in the case of contempt jurisdiction.It has to exercise a judicial restraint tempered with the fact that the orders of thecorut are bound to be obeyed by those who come within the purview of it.Indeed, otherwise, it will result in the denegration of the very principles ofsanction provided behind the law as propounded by Prof. Austin in his Theoryof Jurisprudence. The need of such a judicious mixture of forthrightness andcaution is all the more necessary in the growing complexity of the orders whichthe courts are called upon to pass and the profuseness of the legislation which

250 The Citizen and lttdicial Reforms under lndian potity

is invading every walk of life of the citizens of India to-day. In some cases atleast it has become a comnon feature of the courts passing the order and theaggrieved party trying to hedge behind some technical ground to disobey theorders of the court. The other essential parameter of the iurisdiction of thecontempt is the fundamental principle that the maxim "Nemo judex in proprin srncnuse" which means that no one should be a Judge in his own cause, does notapply to the exercise of jurisdiction of thd contemlpt of courts. More often thannot, it is the very Judge whose orders are supposed to have been flouted whohas to sit in judgment and give a finding on the basis of ..the evidence on recordwhether a contempt has been committed. The personalfeelings of prestige andpower will have to be purged when he decide the matter of contempt for theoverall object is the enforcement of the pdnciple of supremacy of law. It is forthis purpose that the parameters of the jurisdiction in respect of matters ofcontempt, civil and criminal, may require a Judge to exercise the power so vestedin him in a wise and judicious manner. In my opinion the above principles oflaw apply with more viqour in case of exercise of appellate jurisdiction undersection 19 of the Act. It is submitted th4t matters of an interlocutory naturepassed after due consideration by qlingle Judge, for instance with regard to thepresence of a person who is allegdd to have committed contempt, shall notordinarily be interfered with at the hands of the appellate court unless there is acompelling reason to do so. The reason for the above observation is thatotherwise it is bound to inculcate the feeling in the minds of persons who areheld up for contempt before a single Judge that the interlocutory applicationseither for presence of the contemner or for dispensing with the presence of theperson concerned are likeiy to be upset by the appellate court and the sanctity ofthe order made by a Judge sitting single is bound to be watered down by thefeeling that the last word does not rest with him even in the matter ofinterlocutory relief. It is not for a moment suggested that the power of theappellate court should be whittled down in this regard but it is suggested thatthe appellate power with regard to interlocutory matters may be used sparingly.It is only when there is a patent failure of justice or when there is an errorapparent on the face of record which does not cail for such an interim order thatit may be interfered with by the appellate ctrurt.

The power of the High Court under section 11 of the Act) as indicatedabove, to try offences committed even outside the jurisdiction is anotherparameter of the law of contempt in India. The exercise of this power is notconfined in relation to the teritories in which the High Court is exercising itsjurisdiction. It is indeed a jurisdiction of ektra territoriil nature because it is.notnecessary that the person alleged to have cornmitted contempt may not bewithin the local limits of the jurisdiction of the High Court. A notable feature ofthe Act is contained in section 16 that a Judge, Magistrate or other person actingjudicially may also be iiable for contempt of his own court or of any other courtby his inappropriate behaviour. The idea behind this principle seems to be thatwhat is punishable is the contempt of the tourt and the personality of the Judgein such a case does not play any part whatsoever. In fact, the dignitary holdinga high judicial position is treated on par with an ordinary person who may beguilty of contempt.

Contenryt I urisdiction-lts Parameters

Principles of Strict LiabilitY

25r

The principle of 'strict liability' as adopted under the common law has

been applied to the law of Contempt. It may be mentioned herein that in R' v'Cray, iobO (2) QB 36, it was observed by Lord Russell that any act done or any

article published which is calculated to bring a court into contemPt or to lower

the auti-rority of the court constitgtes 'contempt of court'. The point was further

elucidated fhut ur-,y act done or writing published deliberately to obstruct or

interfere with the due course of iustice or the lawful plocess of the court is a

contempt of court. This principle of strict liability has been enunciated in the Actof 1981 in England whi-h provides that any writing, speech, broadcast or other

communication in whatever form which is addressed to the public at large or

any section of the public may be treated as contempt regardless of intent if .it is

deiigrred to create a substantial risk that the course of justice in the proceedings

in question will be seriously hampered or prejudiced. This principle of strictliability as enunciated in Contempt of Courts Act of 1981 in England has been

applied with full force in India. In Brahma Prakash Sharmn v' State of Uttarpidesh, AIR 1954 SC 10. The Supreme Court was dealing with an offendingpublication which was likely to interfere with the administration of justice and

it was held that such a publication which involves a substantial risk ofimpeding the course of justice will amount to contemPt. In another case Hira ltlu. State o7 Utto, Pradesh, AIR 1954 SC 743, the Supreme Court considered the

contents of an article making a denunciatory attack on the Judges of the court as

well as the State administration. On a fair reading of the article and its contents,

it was observed that the object of writing the article was to affect the minds of the

Judges and to deflect them from the strict performance of their duties' The

offending passage was held to have been published with a view to hinder and

obstruct the due administration of iustice and come within the fottr-comers ofthe definition of 'contempt of court'. Thus, it may be seen that yet another

parameter of the jurisdiction of the contempt may be considered to be the

io-^ot law principle of strict liability which has been held to be applicable insuch cases. Ii P.C. Sen (in rd, AIR 1972 SC 1821 while dealing with a speech

made by the Chief Minister of the State it was observed that any act done or

writing published which is calculated to bring a court or a ludge into contempt

to lowei his authority or to interfere with due course of justice or the lawfulprocess of court is a contempt of court. Contempt by speech or writing may be

scandalising the court itself or by abusing parties to actions or by prejudicingmankind in favour or against a party before the cause is heard. It is submitted

on the basis of the above judicial dictum that the significant parameter of the

iurisdiction of the court in dealing with contempt cases is the above principle ofstrict liability enunciated in those cases.

To sum up on this aspect of the problem, it can be said that the principlesto govem the eiercise of contempt jurisdiction require the Judge to rise above the

noimal considerations of prestige and power of the court and to take an

objective view of the act perpetrated by the contemnor as to whether it amounts

to an interference in the administration of justice or cagses any obstruction inthe course of justice.

t52 The Citizen and ludicial R{orms under Indinn polity

The supreme Court in the case of perspectiae publication v. stnte ofMaharashtra, AIR i971 sc 221 dealt with the question of committals fo'rcontempt for scandalising the court. while reviewing the law as it exists on thesubject, it was held that it is open to anyone to express, fair, reasonable andlegitimate criticism of- any- act or conduct of a Judge in his ludicial capacity. Infact,.the view taken by the supreme Court *"r-"*prerr"d in the iollowingwords:

"Justice is not a cloistered airtue and she must be allowed to sffir the scrutinyand respectfuI eum though outspoken comments of ordinary men.,'

The questiory therefore, to be determined in all such cases would bewhether the impugned publication is .a defamatory attack on the Judge orwhether it is calculated to interfere with t[re due couise of justice or ttre pioperadministration of law by the court. It is only when it falG in the category ofinterference with due course of justice it will constitute contempt of couris. it is,therefore, evident that the parameters of iurisdiction of the couit on the issue offair criticism of the judgments of the court coincides with the concept thateveryone is free to express fair, reasonable and legitimate criticism of any act orconduct of a Judge in his judicial capacity and to make a proper

"t d fuit

comment on the decision given by hirn. In fact, such fair ind reasonablecriticism must be encouraged because it would be in the interests of the iudiciarvand the public at large. An academic criticism of a judgment *"y

".r"r, ,"*u ,, u

corrective to the judge in question enabling even him to see his ownshortcomings and may even rectify his approach to the problems in future. Itmust be stated that the opinion expressed by the supreme court in this regard isthoroughly on consonance with R v. Gray, (1990) ) eS SO which has tak-en theview that any act done or writing published calculated to bring a court intocontempt or lower his authority is a contempt of court and a fiir reasonablecriticism of the judgment rendered by any court carmot be termed as a contemptof court.

The Freeilom of Press v. Tial by Nezas papers

The concept of freedom of press constitutes a comer stone of the Indianconstitution. lt is through this mass media that the general members of thepublic educate themselves and get the information Jbout what is going onaround them' It is through the press agairrr that the multitude of the peoplJ gettheir news about how justice is being admlnistered in the courts. rne i.ame.Jofour constitution have jealously guarded the freedom of the press in the counhyand have ensured that there should be n0 stifling of this right of the press ttexpress freely about the situation existing in regard to the administration ofjustice or to report the proceedings in a court of law. However, at the same timethere has been a nagging fear in the minds of the iudiciary that we cannotcountenance what has been termed as a ,,Trial by news p^p"i"', and expositionof law by publication of news paper articles when matters are "subiudice,, incourts. In a celebrated judgment 1n Attornev General v. Times News papers Ltd..(1973) l All ER 815, which has otherwise come to be known as the,Thnlidomidecase', the law on this aspect has been enunciated in a detailed manner.

Contempt lurisdiction-lts Patameters

Thalidomide is supposed to be a drug which causes deformity in children.in

utero and serreral ihild.en were bom with gross deformities as a result of the

use of this drug. Actions were initiated against the comPany who were the

manufacturers Jf thit dt.tg and the matter was settled by payment of-a huge

compensation. ln some cases writs were issued after leave was obtained and in

otheis no writs were issued at all. Subsequently there were negotiations between

the company and those affected and it was mooted to set up a charitable trust

fund foi the benefit of those who were afflicted by the drug. During the

pendency of the negotiations, sunday Times published an article under the

i,eading ''Our thaiidomide Children". . 'A cause for National Shame"' Drawing

the attlntion of the plight of the children who have been afflicted by the

Thalidomide drugs, i complaint was lodged by the company t9 tne eJt9t1e1

General stating tfJat the artiile was in cont'empt of court and has been published

during t1e peridency of the case in the court. The editor of the paper justified the

article*and'sent it to the Attomey-General claiming that what has been stated

there is factually correct. Nevertheless an injunction was granted by the

Division Court of the Queens Bench Division restraining publication on the

sround that it constituted contempt of court. Following the debate in Parliament

in England a national campaign was lodged in the press bringing Pressure on

the co;pany to make a better offer for the children and their parents. The matter

was takin io the Court of Appeal and Lord Deruring, who delivered _the

ludgment, observed that the porltior, in law is that when litigation is pending

ard"happens to be actively iniuit before the court no one shall comment on it in

such a way that there may be a real and substantial danger or prejudice to the

trial of the"actiory by influencing the Judge, the jurors or the witnesses or even by

prejudicing mankind in general against a party to the causes' Then he went on

io observe, ,,We must not allow 'trial by newspapet' or trial by television or trial

bv anv medium other than the courts of law". The court of appeal further held

that in the instant case before them the matter has been pending for L2 long

years and no settlement was reached and in such a case the law does authorise

ih" .ru-, papers to make their comments so long as their facts are correct and

their exprlssion is fair. It further observed that it is only active litigation which

is protected by the law of contempt, not the absence of it. The court of appeal

thirs discharged the injunction granted by the Divisional Court on the ground

that the artic-ie contained comments which the authors honestly believed to be

true on matters of outstanding public interest and did not prejudice pending

litigation since the litigation had been dormant for several years and no active

steis had been taken to settle the matter. On an appeal by the Attomey-General,

ho-errer, the House of Lords reversed the judgment of the Court of Appeal and

directed the Divisional Court to glant an injunction lestraining Sunday Times

from publishing any matter prejudicing the issues in action pending before the

courti. It *u, li"ld Ly House of Lords "It was contempt of court to publish an

article expressing an opinion on the merits of a specific issue which was sub-

judice beiore a court". It was also held that the issue before the court was not

iormant since active negotiations for a settlement had been going on all the

time. Lord Diplock in his opinion in the House of Lords held that once the

dispute has been submitted to a court of law they should be able to rery on therebeing no usurpation by any other person of the function of that court to decide itaccordrng to. law. The injunction thus granted by the Divisional Court wasrestored by the House of Lords and the'sunday ti-er took the matter to theEuropean Court of Human Right areging violation of Articre 10 of the Eu.opean!o1vent1o1 of Hr-rman Rights which guir*t"", freedom of expression u.,i th"right to hold opinions and to receivl and impart information. The court oiEuropean.Human Rights in a unanimous decision held that one p"rp;;iih;contempt laws is to maintain the authority and impartiality of th; judiciary. Butby_a- majority opinion it was ruled that the thatidomiae dilaster was a maiter ofpublic concem and the mere fact that litigation was in progress did not alter theright and indeed responsibility of the mass media to iipart information ofpublic interest' The public had a right to be properly informed which could onrybe denied them if it appeared abiolutely .".Li" tt"t ,r," ".tu"-*""iJi""ipresented a threat to judicial authority. Finaily the judgment wus i^ farroui oithe publication of the articre in sunaay Times on tie ground that it wasi?9:t3t" 1 tone and presented both sides of the case fairlliand did;;p;i;judicial authority of the courts to decide the matter. The above said decision hasbeen quoted and commented upon in extension for the reason that it lays downthe parameters of the jurisdiction of the courts while dealing with tr,. i,ruriio.,of reports and comments in the mass media about the matters which are ,,sub-judice" before a court. The test as laid down in the above cases, therefore, seemsto be_ that matters of public interest may be commented upon proviied thenarration of the facts is correct and nothing is said which is stat"a t'o i"rd" th;courts of justice or the trial of the case in the court which is hearing td ;;;;.An injunction in such matters

_

can be granted only when it i! abs;lutelynecessary to safeguard the integrity of the judiciary and to ensure thesupremacy of law.

The Citizen and ludicial Reforms under Indian politv

:i? * f. interest of justice or national security or for the prevention ofroer or cnme. lt remains to be seen how this ,impasse, is resoived in case adicial opinion is called for in a matter ariCing in fufure.

-, Another lspect of the problem connected with the above is that in Indiathe question whether the ]oumarists must disclose their source of informationhas been a matter of some estrangement between the courts and the journalists.There is no enactment in force

-protecti"g the joumalists rro* ai.i,rrg.rj *,e

sources of their information in law courts ind the position of the law i"i" tobe tt*t if the Judge considers that disclosure is nece^ssary for doing justice in thematter he should be free to insist upon such disclosures by the j"oumalist. Butthe Press Council of India has recommended that no court may require a person

::ji::t::::::-1"19 iiy p".son be suilty of contempt of court ri. ."ruli"!ioolsclose the source of information unless the court is satisfied that disclosui is

.. (") 3u contempt jurisdiction is to be exercised with utmost care and

:,1::3"^::ll -lll1.":. be justified in exercising this jurisdiction to upr,oiJdiCnity of the court or the personal presrige "Ftn";irJ!"-u"i?;#lj;cised only to uphold the digniry and tt e ,uir"-u.y of tu*.

Contempt I urisdiction-lts Parameters 255

(b) The jurisdiction for punishing the offender for contemPt of court mustbe exercised as complementary to the administration of justice with a view toprovide the necessary sanction behind the orders of the court.

(c) Public criticism of the judgment cannot be stifled so long as it is fair,reasonable and legitimate. Similarly the conduct of a Judge in his judicialcapacity can also be subject of a fair and proper comment. This is amply bornout by the words of the Supreme Court in Perspectiae Publications v. State ofMaharashtra, AIR 1971 SC 221. "Justice is not a cloistered virtue and she must be

allowed to suffer the scrutiny and respectfui even though outspoken commentsof ordinary men.

(d) Since the jurisdiction is exercised in certain cases contrary to the

principle that no one should be a judge in his own case "Nemo iudex in propria

sua atuse".lt is all the more necessary that the Judges must be more careful inavoiding any personal feelings in the exercise of the jurisdiction.

(e) The principle of strict liability enunciated in the several decisions of the

Supreme Court and to be applied only to cases which involve grave questions ofadministration of justice and supremacy of law and not to all other cases whichmay come up before the courts.

(f) The principle of the freedom of the press will have to be reconciled withthe idea that "there should be no trial by news papers'/ of a particular cause.The courts must try to draw clear and perceptive parameters for the exercise ofthe iurisdiction in such cases.

(g) hr matters of public concern, accurate and factual reporting of the cases

which may be "subjudice" may not fall within the four-comers of the law ofcontempt. Such an attitude will help in creating an informed public opinion inthe country about the matters pending in the courts. But it must be emphasizedthat the reporting of such matters must stand the objective test of being fair,accurate and precise and not aimed at the denigration of the judicial process ofthe court.

(rg&)

CONTEMPT OF COURT ANDACCOUNTABILITY OF TUDICIARY

Anil Diwan*

Over fifty years of the working of the Constitution has brought about aradical change in our democratic institutipns. One of the most visible changes isa vast acclrrnrllation of powers in the higher judiciary. These powers are onoccasion quasi-legislative or administrative. Judicial Review has immeasurablyenlarged the powers of the higher judiciary. The measure is only the Judge'ssense of self-restraint.

Such concentration of power in the judiciary is unique and unrivalled inany democratic country govemed by the [{ule of Law.

But how is this awesome power disciplined? If abused it may pose a threatto the 'Rule of Law' itself. The Review Commission headed by former ChiefJustice Venkatachaliah states in a consultation paper that of late there is publicconcern over jndges behaving in an un-judge like manner and such conductcalls for a disciplinary system.

Recently, the Chief Justice of India as reported in the national dailies

"a good majority of jttdges in the country are honest but there is a minoritywhich is corrupt and sltould be identified and dismissed from seroice . . . and . .

. . judiciary would not tolerate corruption in its ranks. . . . while in the case oflower courts nction against corntpt judges was possible . . . it wns dfficult inthe case of higher judicinry since impeachment wns the only recourse in law."

Francis Bacon, Lord Chancellor of England when accused of bribery,defended himself by saying that "his offences were the offences of the time,,. Weare all aware of the vices and offences of our times.

* Senior Advocate, Supreme Court. The text is based on an articlepublished in Indian Express.

Contempt of Court and Accountability of Judiciary 257

Lord Devlin speaking of the English judge observed that "judges are notnow, neither have been in the past much better or much worse than other public

servants" and that "integrity comes haltingly into public life and that withoutwatchfulness it may slip away".

How does a citizen who is watchful make a complaint against a judge

who is dishonest? Is he liable for contempt even if, the allegations are true? Is

there any mechanism by which a credible and responsible complaint can be

examined?

As the 1aw of contempt stands todap vigorous and robust criticism of ajudgment is permitted but attributing bias, motives or corruption to a judge.

amounts to contempt of court. Truth or justification is no answer to a charge ofcontempt. The reason given is that if evidence was to be allowed to prove the

truth, iiwould expose the judge to allegations from disappointed litigants and

the public. The trial would itself damage the judge and the judiciary'

An example of robust criticism in England arose from the judgment in the

famous Spycatcher Case.

The British Govemment moved the court to stop publication of a book byPeter Wright a member of the British Secret Service' The Court of Appeal granted

an injunction. The House of Lords by a majority upheld and enlarged the ban.

The "London Times" came out with a blistering editorial. It said "Yesterdaymoming the law Iooked simply to be an ass. Those who regretted this fact werewaiting with quiet confidence for the Law Lords to do something about it ' . . Butyesterday afternoon the law was still an ass. In the hands of LordsTempleman, Ackner and Brandon (the majority who ruled for the gag order ) ithad become unpredictable and wild seemingly responsive only to autocraticwhims". The "Daiiy Mirror" came out with a front page caption "YOU FOOLS"

and published the photographs of Lords Templeman, Ackner and Brandonupside down.

American judges have been haditionally very forthright and unsparing oftheir colleagues. justice Rehnquist of the US Supreme Court (later Chief Justice)in one oI his dissents described the majority reasoning as "reminiscent not ofjurists such as Hale Holmes and Hughes but of escape artists such as Houdini(the conjurer)". Supreme Court Justice Jackson described his colleague JusticeBlack as a "stealthy assassin" whose disregard of judicial proprietiesthreatened to bring the court into disrepute.

AI1 over the world there is a movement towards a more accountablejudiciary and a wider scope for criticism of the judiciary. The CommonwealthLaw Association have framed "the Latimer House" guidelines. They visualise a

Code of Judicial Ethics. The American Bar Association Code of Conduct for the

Judiciary is widely accepted. The Phillimore Committee in England has

recommended truth as a defense to contempt if it is for the public benefit.

Unlike the iaw of contempt, the law of defamation always permitted thedefence of iustification or truth. But if truth was not established the defendantwould be liable. In the USA, however public men on public issues could be

The Citizen and ltrdicinl Reforms

criticised. The media or the citizen would not be liable even if the allegationswere not true provided the publisher acted bona fide and not recklessly andrelied on responsible sources. The above defence is now available in India indefamation cases as our Supreme Court has adopted the enlarged Americandgjence. This gives great freedom to the fnedia and the public to iriticize publicofficials and politicians. But what about judges? Barring the impracticil and" falled" impeachment process there is no avenue even for legitimate criticismagainst a dishonest Judge. A publication which can be justified cannot becontrary to the motto 'Truth alone triumphs' (Satynmeaa /aynfe) which adomsthe Supreme Court. Truth makes a dishofiest judge contemptible but ought notto bring the court into contempt.

In a case involving Chief Justice Veeraswamy of the Madras High Courtthe Supreme Court has directed that no criminal case for corruption should beregistered and no sanction-to prosecute a High Court or Supreme Court Judge begiven without the consent of the Chief Justice of Lrdia.

This judgment enables the Chief Justice of India to activate investigationby the appropriate authority when he is satished prima facie for its need.

To meet the "felt necessities,, of the times new Court framed guidelines areessential.

Fair comment and justification as applicable to the law of defamationneeds to be woven into the conternpt jurisdiction. Properly structuredcomplaints should be entertained by the Apex judiciary without fear ofcontempt proceedings or defamation. Confidential non-participatoryprocedures will not command credibilify.

Justice Shetty in the Veeraswami case observed:

"We must neaer forget that this court is not n murt of limited jurisdiction ofonly dispute settling. Almost from the beginning, this court has been a law-maker... Indeed the courts' role today is much more. lt is expanding beyonddispute settling and inter-stitial laro.mnking. It is a problem solaer in nebulousareas. ln this use, we unsider it no fiere opportunity, it is a duty..."

The law of contempt is a nebulous area and the problem needs to beurgently addressed. The damage caused by a dishonest judge should not gounrepaired.

If a credible mechanism is put in place quickly and firmly it will greatlydisarm the growing perception of an unaccountable judiciary.

o5&)

IUDICIAL ACCOUNTABILITY-REMOVAL OF

TUDGES AND CONTEMPT OF COURTPrashant Bhushan*

The failure of the motion for removal against Justice V. Ramaswami of theSupreme Court showed the practical un-workability of the system created by theConshtution as the only method for dealing with judicial misconduct. Here wasa case of proven misconduct proven by a Committee of three Judges appointedr-rnder the Judges Enquiry Act, yet the motion for removal failed because of apolitical decision of the Congress Party and the issuance of whip to its membersasking them to abstain from voting. The system is impracticable and un-workable because in order for the motion to succeed, the following steps have tobe successfully completed:

(a) More than 100 members of the Lok Sabha or 50 members of the RajyaSabha have to sign a motion containing the charges against the Judge;

(b) The Speaker of the Lok Sabha or the Chairman of the Rajya Sabha, as

the case may be, has to admit it and appoint an Enquiry Committeeunder the fudges Enquiry Ac!

(c) The Enquiry Committee has to find the Judge guilty of misconduct andrecommend his removal; and

(d) The motion has to be then voted upon and passed by a majority of 2/3of the members present and voting in each House of Parliament and anabsolute majority of the total membership of each House.

In the first place, it is very difficult for any private citizen or a Member ofParliament to collect evidence of misconduct or malfeasance against a sittingJudge without having statutory powers of investigation. Secondly, even if someone some how is able to get some evidence, for him to get all the requisitenumber of MPs to sign the motion, he needs to publicise the charges to makethem known to the MPs. This process would itself constitute contempt of court

* Advocate, Supreme Court.759


under the contempt of court Act as presently interpreted since imputation ofmisconduct or malfeasance against a judge has been held to scandalise thecourt and thus constitute criminal contempt. Thereafter, even if one crosses thisstage and succeeds in getting requisite number of Mps to sign the motiory it hasto be admitted by the speaker or Chairman and the Enquiry Committeeconstituted under the Judges Enquiry Act has to hold a trial bf the Judge andfind him guilty. However, even thereafter to secure the removal of the lud]ge themolion must be passed in both the Houses of parliament with the reJuisitemajority. This can be fmshated by any major party voting against the motion oreven abstaining from voting as happen€d in lustice V. Rnmaswami,s case, forpolitical reasolls.

. It is not, surprising, therefore, that judges of the superior Judiciary havebecome totally unaccountable having realiied that they cannot be held toaccount. This lack of accountability brdeds abuse of power, arrogance andcorruption and this is precisely what has happened to the higher ;udiciary inthis country, forcing no less a person than the chief justice of India to say in aspeech in Kerala that upto 20k of the Judges of the superior Judiciary arecorrupt and nothing can be done about it because of the failure of the system forremoval of jtrdges.

There is now almost a consenslrs in the country that there needs to be analternative system for bringing the errant Judges to 6ook. virtually all politicalparties had stated in their manifestos tha! they would bring a NationalJudicialCommission to deal with appointment a$ well as removal-of the Judges of thesuperior Judiciary. Recently, even the National Review Commission bo Reviewthe working of the Constitution (NCRWC) has recommended the amendment ofthe Constitution to provide for a National Judicial Commission which will havethe power to initiate enquiries against Judges of the superior Judiciary. Alsorecommended is a permanent and standirrg Judges Enquiry Committee whichcould enquire into allegations against any Judge if so recommended by theNational Judicial commission. However, according to the recommendations ofthe NCRWC, if Enquiry Committee finds the J.dge guilty and recommends hisremoval and the recommendation is accepted by ihe National Judicialcommissiory and if thereafter also.the Judge does noiresign, the mattei wouldagain be referred to the Parliament for removal proieedings. Moreover,according to NCRWC, the National Judicia! commission should be composedof three senior Judges of the supreme Court, the Law Minister and one personrecommended by the President. These recommendations, do not go far enoughto ensure an effective and workable system of judicial accountability. This isbecause of two main reasons: firstly, the Nationar Judicial Commissioryaccording to this proposal, is dominated by the Judiciary since three of this fivemembers are three senior Judges of the supreme Court. Apart from the feeling ofjudicial brotherhood of the sitting Judges of the superior Judiciary whlch mi"ghtfrustrate an independent view on the allegationJ against the biother judg"es,there is, also the spectre of allegations being made afainst these senior jud[es.There have been such allegations against a sitting chief Justice ani aprospective Chief Justice in the recent past. It is unrealistic to expect a

ludicial Accountability-Remooal of ludges and Contempt of Court 261

subordinate of a sitting Chief Justice to make independent recommendations forhis removal or even for an enquiry against him. Secondly, even if the JudicialCommission recommends removal according to the recommendations of theNCRWC, if the Judge does not resign, the matter would come back toParliament, which has been found to be an unsatisfactory political process.

Taking all these things into consideration, the Committee on JudicialAccountability had more than five years ato, proposed a Constitutionalamendment creating a National Judicial Commission with disciplinary powerover the Judges of the higher Judiciary. According to this proposal, the NationalJudicial Commission consist of five members, chosen in a manner such that theChairman would be chosen by a collegium of three Judges of the Supreme Court.One member would be chosen by a collegium of Chief justices of the HighCourts. One member would be chosen by the Govemment, one member by theLeader of the Opposition in the Lok Sabha in consultation with leaders ofopposition in the Lok Sabha and one member by a collegium of the entire BarCouncil of India. It is also provided that the National Judlcial Commissionwould have an investigative machinery under its own administrative controlthrough which it could get the charges against Judges investigated. If afterinves tigation it found the charges to be prima fncie proved, it would constitute anEnquiry Committee of three retired Judges of the Supreme Court to hold a trial ofthe Judge and if he was found guilty of any of the charges, the JudicialCommission would recommend his removal. On such recommendatiory theJudge would have to be removed without the matter going to Parliament.According to the proposal of the Committee on Judicial Accountability, allmembers of the National Judicial Commission would have to be only retiredJudges of the Supreme Court or retired Chief Justices of the High Courts. Such acomposition of the Commission would ensure that the members had sufficientjudicial experience and knowledge of the working of the Judiciary to be able tounderstand and decide such matters and vet thev would not be either under thecontrol of the executive or even under the contiol of the sitting judiciary. Theproviding of an investigating body under their administrative control wouldensure that credible charges against the Judges could be properly investigatedand that individual citizens would not be required to produce hard evidence ofmalfeasance or misbehaviour against the Judges.

Unfortunately, however, despite the consensus on the need to have a

Judicial Commission with disciplinary powers on other Judges, no Governmenthas so far taken any initiative in bringing such a constitutional amendment.Obviously, the Judiciary has been opposing such a Commission which wouldhave the effect of divesting them of their present powers of appointment ofJudges and would also make them accountable. Each Government has beencontent io have a cozy relationship with ihe Judiciary by which they keep theJudiciary on their side in return for not bringing in the National JudicialCommission. Unfortunately, there has not been enough public outcry on thisissue to force dre Parliament and the Govemment io bring such an amendment.

Allied to this problem is the problem of contempt of court. The power topunish for civil contempt or to punish for obstruction of justice is an un-


exceptional. The problem, is in what is known as "scandalizing the court" or"lowering the authority of the court{'. This is capable of a whimsicalinterpretation and occasionally persons, who have merely been criticizing thecourt, have been punished for scandalizing it. Moreover, in exercise of thispower, the Judges act as Judges in their cause, thus rendering the power all themore liable to misuse. It is being perceived to be a power being wielded by theJudiciary to even prevent public exposure of their conduct, which is currentlythe only manner by which they can be held accountable.

It is submitted that the view that thib power is essential for the rule of lawbecause otherwise the authority of the Judiciary would be totally eroded by allkinds of irresponsible and slanderous comments by the citizens, is a totallymistaken view. It is the actions of the Judiciary and not the comments of thepeopie of it which determine the public perception of the Judiciary and publicconfidence in it. If a person makes absurd and irresponsibly disparagingcomments on the Judiciary, people will eventually realise that they are absurdand in the process it is the reputation of the maker of such comments and notthe reputation of the court which will suffer. The reputation of the court andpublic confidence in it is.a gradual process built up only by the actions of thecourt and its judgments and the people's perception of the merits and publicinterest character of those judgments and actions. There is, therefore, nojustification for the existence of power, which serves only to protect individualjudges from criticism and exposure and does not in any way serve the interest ofthe administration of justice or the rule df 1aw. It is, therefore, essential in theinterest of judicial accountability, that the power to punish for scandalising thecourt or lowering the authority of court be deleted from the statute book.Alternatively, article 19 (2) of the Const[tution should be amended to deletecontempt of court as a basis for placing reasonable restdctions on the freedom ofsDeech.

ANNEXIJRE(1) The National Judicihl Commission Bill

Statement of Objects & Reasons

There is a wide spread public perception that the quality of the higherjudiciary in the country in general has deteriorated over the last two decadesleading to a decline in the quality of administration of justice. Apart from thelong deiays in the decision of cases, there are also many complaints being heardnow about the competence and integrity of judges manning the higher judiciary.It is felt that part of the cause of these problems lie in the present system undirthe Constitution for the appointment and removal of judges. Experience doesseem to suggest that the present system of appointments as well as for removalis not appropriate to the needs of the present days which require that allvacancies will be filled up promptly by the best available persons of highintegrity. The present system of appo'rntment has often led to delay inappointments and has often led to inappropriate appointments being madewhich is ill-suited to judging the merits oi proipective appointees.

Itrrlicial Accotmtability-Remoual of ludges and Contempt of Cottrt 263

Experience has also shown that the procedure for removal of iudges is too

cumbersome and impractical to be effective. Further, it is felt that the matter of

determining whether a judge is guilty of misbehaviour and thus fit for being

removed, should be left to the professional body rather than to Parliament

which is not the appropriate body to decide such questions.

It is, therefore, felt necessary, to constitute a high powered National

Judicial commission which will be an eminent body of judicial PersonaSes to be

entrusted with the task of recommending aPPointments and removal of

members of the higher judiciary. This body will be independent of the Executive

as well as of the Judiciary shall be provided with an investigative machinery at

its disposal for investigating the antecedents of judge. It shall have the power to

examine complaints against judges and in suitable cases set up enquiry

committees for conducting a full judicial enquiry into the charges against errantjudges. It shali have the final power for recommending the removals of an errantjud[e after such enq'iry. Likewise its recommendations for appointments willalso be final and binding. It is hoped that such a high powered eminent bodywould make the best possible appointments to the higher judiciary and provide

the much needed aCcountability in the higher judiciary' This bill seeks to

achieve these purposes.

The Constitution Amendment Act

An act to fur'ther amend the Constitution of India.

Br it enacted by Parliament in the..'..........year of the Republic as follows:-

1. Short title.-This Act may be called the Constitution ...' Amendment

Act,............-..

2. Insertion of Chapter IIIA.-After Chapter III, the following Chapter IIIAshall be inserted.

CHAPTERIIIA

THE NATIONAL JUDICIAL COMMISSION

1234.-(1) There shall be a National Judicial Commission 6snsisting of a

Chairman and four other members who will be appointed by the Preciding bywarrant under liis hand and seal.

(2) The functions of the National Judicial Commission will be torecommend the appointment, transfer and removal of Judges and chie{ Justices

of High Courts u.rd thtu appointment and removal of Judges and Chief Justice of

the Supreme Court.

(3) The Chairman shall be appointed on the recommendation of a

collegium consisting of all sitting judges of the supreme court. one member of

the Commission shall be appointed on the recomrnendation of a collegium

consisting of all the Chief Justices of the High courts. one member shall be

appointed on the recommendation of Union Cabinet. One member shall be

appointed on the recommendation of the Leader of ihe opposition in the Lok

Sibha who will act in consultation with leaders of other opposition parties in

Tle Citizcn and Jttdicial Reforms

both Houses. One member shall be appointed on the recommendation of acollegium consisting of all the members of tire Bar Council of India.

(4) A person shall not be qualified for appointment to the National JudicialClommission unless:

(a) He is at least 55 years of age; and

(i) He has been a judge of the Suprenre Court or a judge of a High Courf or(ii) He is a Senior Advocate.

(5) Each member of the National Judicial Commission shall have a fixedtenure of 5 years, but he shall be eligible for further terms if reappointed by anyof the appointing authorifies. Each vacancy will be filled by appointment on therecommendation of the same authority on whose recommendation the memberwhose membership fell vacant was originally appointed.

(6) A member can resign his office by a letter addressed to the President.He shall not be removed from the office except on the rinanimousrecommendation of all the other members of the Commission. No member of theNational Judicial Commission after completion of his terms will hold any otherpublic office or will practice in a court or chambers.

(7) The Chairman of thestahrs and salary of the Chiefmembers shall have the staruslndia.

National Judicial Commission shall haveJustice of the Supreme Court of India, andand salary of a judge of the Supreme Court

theits:of

(8) The National ludicial Comrnission u,ill frame its own rules ofprocedure and will recruit and frame the terms and conditions of its own staff,including a term of investigators to assist it. The National Judicial Commissionshall have such officers, staff and ser'ants including a team of investigators, asmay be deerned necessary by the Commission.

(9) The administrative expenses Of the Nationalincluding all salaries, allowances and pensions payableofficers, staff and servants of the Commission shallConsolidated Fund of lnclia

(10) The seat of the National ludicial Commission shall be at New Delhi.

Judicial Commissionto or in respect of thebe charged upon the

3. ln place of Article 124, the follon'ing shall be substituted:" 124.-(1) There shall be a Supreme Court of India consisting of the Chief

J'stice of India and such number of judges as the National Judicial Commissionshall determine from time to time.

(2) Every judge of the Supreme Court shali be appointed by the presidentbv warrant under his hand on recommendatio., o] th" National JudicialCommission and shall hold office until he attains the aee of 65 vears. The chiefJustice of India shall always be appointed by seniority fiom among the judges ofthe Supreme Court, unless the National Judicial Commission unanimouslyrecommends otherwise. The recommendations of the National IudiciilCommission will be binding on the Presidlent.

Irttl icial Accountability-Remoxal of ludges and Contempt of Coutt 265

Before making any recommendation for the appointment of a Judge to the

Supreme Court, the National Judicial Commission may consult the Chief Justiceof lndia and other judges of the Supreme Court. However in case of a

disagreement of view of the Commission shall be final in the matter.

A judge may by writing under his hand addressed to the President resign

his office;

(3) If any dispute arises about the age of a judge of the Supreme Court, itshall be determined by the National Judicial Commission whose decision shallbe final.

(4) A person shall not be qualified for appointment as a iudge of the

Supreme Court unless he is a citizen of India; and

(a) has been for atleast 15 years a judge of a High Court or of two or moreHigh Courts in strccession; or

(b) has been for atleast 15 years an advocate of a High Court or of two ormore High Courts in succession; or

(c) is in the opinion of the National Judicial Commission a distinguishedjurist.

(5) A judge shall not be removed from his office except by an order of the

President passed on the recommendation of the National Judicial Commissionwhich wil[be binding on the President.

The National Judicial Cr:mmission will recommend the removal of a iudgeof the Supreme Court only on the finding of misbehaviour or incapacity arrivedat after an enquiry by a Committee of three retired judges the Supreme Court, tobe selected by the National Judicial Commission to inquire into charges ofmisbehaviour or incapacity against the judge. The rules of procedure forframing the charges, constituting the Inquiry Commission and the rules ofprocedure for the Lrquiry shall be framed by the National |udicial Commission'

(6) Once the Inquiry Committee is constituted to enquire into the charges

against a judge he shall desist from discharging judicial functions'

(7) Every person appointed to be a iudge of the Supreme Court shall, before

he enters upon his office, make and subscribe before the President, or some

person appointed in that behalf by him, an oath or affirmation according to the

form set out for the purpose in the Third Schedule.

(8) No person who has held office as a fudge of the Supreme Court shallplead or act in any court or before any authority within the territory of India. He

shall not be appointed to any office of profit, including a Commission of Inquiryby the govemment at the Centre or any State, except on the recommendation ofthe National Judicial Commission.

4. In Article 126 of the Constitution, in place of the words, "as the

President may appoint for the purpose", the following words will be substituted"as the President may appoint on the recommendation of the National JudicialCommission".


5. In place of Article 217, the following will be substituted:

217.-(7) Every judge of the High Court shall be appointed by thePresident by warrant under his hand on the recommendation of the NationalJudicial Commission and shall hold offirce until he attains the age of 62 years.The Chief Justice of a High Court shall Always be appointed by seniority fromamong the sitting jr,rdges of that High Court, unless the National fudicialCommission unanimously recommends Otherwise.

(2) The President will be borrnd by the advice of the National JudicialCommission.

(3) The National Judicial Commission shall not make its recommendationto the President until at least two weeks after the name of the proposedappointee has been duly notified to the public in the pressJudicial Commission.

( ) A judge may by writing under his hand addressedresign his office.

(5) If any dispute arises about the age of a judge of the High Court, it shallbe determined by the National Judicial Commission whose decision shall befinal.

(6) A person shall not be qualified for appointment as a judge of the HighCourt unless he is a citizen of lndia; and

(a) has held for atleast 10 years a judicial office in the territory of India; or

@) has been for atleast 10 years an advocate of a High Court or of two ormore High Cor"rrts in succession; or

(c) is in the opinion of the National fudicial Commission a distinzuishediurist.

(8) A judge shall not be removed frpm his office except by an order of thePresident passed on the recommendation of the National Judiiial commissionwhich will be binding on the President.

The National Judicial Commission will recommend the removal of a judgegnly on the finding of misbehaviour or incapacity arrived at after an Inquiiycommittee of

-3 retired iudges of the supreme Court or High Court constituted by

the National Iudicial Commission to inquire into charges of misbehaviour orincapacity against the judge. The rules of procedure for framing the charges,constituting the Inquiry Committee and the rules of procedure for the Inquirvshall be framed by the National fudicial Commission.

5. In place of article 220, the following will be substihrted:"No person who after the commencement of this Constitution has held

office as I ildqe of a High Court shall plead or act in any court or before anyauthority in India except the supreme colrrt and the other High Courts. He shailnot be appointed to any office of profit, including a Commission of Inquiry bythe Covernment, except on the recommendation of the National iudicijlCommission".

by the National

to the President

Itrlicial Accountnbility-Remounl of lttclges and Contentpt of Court 267

7. Article 222(1) shall be substituted by the following:

"A jr.rdge of a High Court may be transferred from one High Court to

another High Court by the President on the recommendation of the National

Judicial Commission. Such recommendation will be binding on the President".

(2) Resolution Passed by the Convention onjudicial Accountability on 7-9'1996

The Convention notes with serious concem that despite the demonstrated

failure of the system of impeachment for holding iudges accountable fot theirmisbehaviour, and despite the recommendation of the previotts Convention on

Judicial Accountability and all other responsible observers of the judiciary thatthe system of impeachment be replaced by a more practical and easily workable

system, nothing has been done to achieve this. On the other hand, the Supreme

Court has frowned upon the Bar for raising question about the integrity ofjudges. This is despite the fact that the so-called 'in house' system of the

judiciary for cleaning the mess within it has hardly worked at all. Any action

against judges for their misbehaviour and iack of integrity so far, though it has

been very iare, has been possible only because of the stand taken by the Bar

against these judges. The result is that the judges still continue to remain largely

unaccountable.

The Convention is of the firm view that we need an independent, high

oowered, multi-member National Judicial Commission which should be vested

with the ultimate power of aPpointment, transfer and removal of judges' Itshould have an investigative machinery of its own and its functioning should

be transparent. The Convention recommends that Parliament should

immediatily enact a constitution Amendment Act to bring about these changes.

The Convention also notes that despite the 9 judges decision vesting the

ultimate power of aPpointment of judges on the Supreme Court of India, the

system of appointment of judges still remains unsatisfactory. In particular, the

lick of trinsparency in the system of appointments has allowed the

appointment of a nirmber of undesirable Persons in the recent past' The

ionvention is firmly of the view that the vesting of the ultimate power of

appointment and trinsfers in a single person, even if he be the head of the

ludiciary, is unsatisfactory and is likely to iead to the exercise of this power on

the basis of imProPer information and exh'aneous considerations.

The Convention constitutes a sub-committee of the following members of

the committee to finalize the draft of such a legislation and pursue it withParliament. The drafting Committee inciudes M/s' A' Shanti Bhusharu Ram

Jethmalani, Indira Jaisingtr, V.M, Tarkunde, Har Dev Singh, Kamini Jaiswal and

Prashant Bhushan.

SUB]ECT INDEX

AAccountability of |udiciary, 256, 259Administrative wing of the cour! 138Anticipatory bail, 224Anti-Defection law

Constihution 52nd Amendment, 7control.ersy, 7

Appointment of judges,t7 , 27 , 45 , 47 , 737 , 1.52, 154, 1,59 , 1,93 ,

21.1.

additional qualification, 168balancing representation, 167Commission for, 171

Constitution of India, 159, 160criteria for, 159ethical behaviour, 169from bar, 159injustice and inequalities, victims of,

t62judge's backgiound, 166rnatter of practice, 1.59

professional expertise,'172reflective judiciary, 163report of suggestions of National

Judicial Commissiory 211

BBail

bail, not jail, 224right to justice, 224

Bav 53,757,1,59appointnent of judges, 159, 164representatives of, 172

Bar Council, 40Burden of proof, 230

cCitizen

basic law, 8citizenship valug 99, 1.00

citizenship value as lawyers, l0lcitizenship value and lawmakers, 102citizenship vaiue and litigants, 102citizenship value and wihresses, 102

confidence in police administration, 31duty ot, 742duty of judiciary, 85freedom of speech, 8fundamental duties, 130, 131judicial reform, 106justice, 24law abiding, 24personality of, 93rights of, 179solemn duty, 140

Code of conduct, 138conflict bet',veen executive and

legislature, 88conflict between legislature and

judiciary 88Constitution

distribution of powert 44due process of law, 6High Courts and Supreme Court, 4interpretation of, 6. 7, 44Iaw's delay, 45organs of State, ,lPreamble of, 44, 45, 153scheme of, 5, 44supreme, 60Supreme Court and High Court, 4, 159written, 4

Contempt of Court, 17, 245, 254, 256accountability of judiciary, 256oellnl on, I /rernoval of jrrdgcs, 259

Courthierarchy of, 4laxity irg 201number of judges, 5pendency of cases, 195State courts, 210subordinate courts, 206

Cfime,228Criminal justice

syslem, 226

268

Subject Index

DDe1ay, 199, 222

cause of, 104

interlocutory applicatiory 105

EEmergency

proclamation of, 12

F

Freedom of press, 252

HHigh Court

appointment of judges, 154

sub-judiciary, 53subordinate courts, 54

Human Rights, 62, 153

IImpeachment of itdge, 23Independence of judiciary, 43, 82,88,179

T

Judgeappointment of, 17, 27, 15, 47, 137, 150,

1.52, 1.54, 159, "t72,211,

dignity,147honest judge and independent judge,

150impeachment, 23, 157Indian judiciary, 147prosecutor, 149quality of 147, 189

removal of , 1,57, 176

iudicial accountablllty, 256, 259

Judicial activism, 29, 54, 72, 238criticism, 72

public interest litigahon, l5Judicial council, 29

|udicial delays, 24judicial Reform, 82, 84,1.06, 125

Constitutional validity, 35

fudiciaryaccess to justice, 48accountability of, 256, 259Act of Parliament, 6adjudication of right, i26administration of justice, 142, 143

administrative wings of court, 138

appointment of judges, 17, 27, 45, 47,1.37, 152, 1.59, 172, L93, 2'1 1.

British Parliamentary system, 5Constitution, 161

contempt iudsdiction, 245corruPtion, 77

269

cost of justice, 86dispension of justice, 199

dir.ine seat of justice, 102

due process, 5executive orders, 87faith and confidence, 69freedom and democracy, 27fundamental duties, 138

hierarchy of courts, 4

human rightq 153

independence and competent, 165

independence of, 1,4, 27, 43, 46, 82, 88,132,r79

Indian judicial system. weaknesses, 198

inexpensive justice, 90institution of governance, 35interpretation of law, 87judges, 99judicial accountablllty, 47judicial activism, 56, 72, 238judicial council, 29judicial reforms, 44, 84, 125judicial review, 5judicial review of legislation, 6judicial system of European courts, 39justice citizen friendly, 106

knowledge of law, 149

Iaw enforcement agencies, 138

object of, 65partial separation of power, 88pillars of State, 81

political question doctrine, 51prof essional misconduct. 40public interest litigation, 16, 86public opinion, 35, 43recommendations on, 27reflective judicia ry ,1,63, 164representative democracy, 14

responsibilities, 36role of fudiciary and legislahrre, 75social transformation, 170speedy iustice, 48, 49,90subordinate 137 ,207substantial justice, 103technology and justice, 192 205transfer of judge, 156working of, 3

LLetter

writ petition on the basis of, 15

Lok adalat, 82

petty cases, 55

Social transformation, 170

The Citizen and ludicinl Reforms

definition of, 6organs of, 3. 4pillars of, 81powers of union and State, distribution

of,4Fubstantive criminal iustice, 223Sovereignty

total sovereignty, 36Speedy justice,

right to, 48$upreme Court

advisory opinion, 8appointment of judges, 45assets of iudges, declaration of, 48contempt, I 7fixed time framed for hearing of cases,

3lfreedom of speeclr, 8impeachment of iudge, 23independence of judiciary, 14interpretation of Constitution, 6pre-trial procedurg 51pronouncement of judgment, 6removal of judges, 23right to approach, 51

strict liability, 251

TTermination of judges, 183Transfer of iudges, 211

VVacation of seat

Constitution (52nd Amendment), 1985,7

Parliament, 7Vacation of evidence, 200Victim

protection of, 234secondary victimisatron, 224

wWitness

citizenship values, 102divine seat of justice, 102protection of, 234

Writ petitionletter, 15principles and norms for welfare of

children. 15

NNational fudicial Commission Bill, 263News paper

trtalby,252.P

ParliamentAct of, judiciary, 6administrative tribunal, 5Anti-Defection law, 7British sovereignty, 6court proceeding, 5making of laws, 5number of judges, 5pe4ury,237police,229privilege, 7, 10sovereign, 5vacation of seat, 7

PolityConstitution of India, 4democratic polity, 4, 81interpretation of law and

interpretation of policy, 87judiciary, 3Parliamentary, 4politisation, 89Presidenfs Rule, 11

severe strain, 3sovereignty,4

Pressfreedom of, 252

PrivilegeParliamentary privilege, 10

Privy council, 82Procedure law, 224Professional misconduct, 40Public interest litigation

judicial activism, 15

irdiciary, 1,6, 86non-judicial political matters, 16proper jurisdictiory 83sufficient interes! 15

RRemoval of iudges, 776,259Right of maintenance, 239Role of Government, 62

s