Law, Lawyers, Judiciary

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<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->Hindustan's legal system is a continuation of the colonial legal
system. The colonial legal system transplanted an alien rule of law
into a nation governed by dharma and related legal systems. A number
of debilities of the present-day system are traceable to this fact
that the colonial loot and oppression is simply continued by
indigenous colonialists (read the criminalised political class)--
manipulating the legal system to their personal advantage (the
nation's abhyudayam does NOT even come into the reckoning). How can
such a criminalised class be allowed to define and regulate a criminal
justice system?

There is the second problem. The colonial continuing legal system is
inadequate to deal with terror war, proselytization war and internal
insurgencies (egged on by external powers) disrupting the state
apparatus and security of the nation.

The legal system is broke and needs fixing. Nariman wonders if the
system can be saved at all. Read on...

-abcd

The Right to Silence: Should it be so sacrosanct?
8/1/2006 10:36:08 PM
- By Fali S. Nariman
-
One of the more controversial aspects of the Malimath Committee Report
(which has not been accepted by the Government of India) is the
inviolable rule as to the 'right to silence' of the accused — at all
times, and in all cases.

The accused is a good source of information; perhaps the best source
about the commission of the offence, but this source is not tapped for
fear of infringing the 'Right to Silence' guaranteed by Article 20(3),
which states that 'No person accused of any offence shall be compelled
to be a witness against himself. But the testimonial compulsion that
is prohibited under Article 20(3) of the Constitution, as explained by
several decisions of the Supreme Court itself, is against duress. The
Article does not prohibit admissions on confessions made without
inducement, threat or promise; it does not bar the accused from
voluntarily offering himself to be examined as a witness. The
conclusions of the Malimath Committee (on the Right to Silence) are as
follows:

In the considered view of the Committee, drawing of adverse inference
against the accused on his silence or refusing to answer will not
offend the fundamental right granted by Article 20(3) of the
Constitution, as it does not involve any testimonial compulsion.
Therefore the committee is in favour of amending the Code to provide
for drawing appropriate inferences from the silence of the accused.
But these conclusions are at variance with the law as it is presently
enacted in the Code of Criminal Procedure, 1973, which prohibits
adverse inferences being drawn from the deliberate silence of the
accused.

Although principles basic to the rule of law — the presumption of
innocence, the importance of a fair trial, and guaranteeing the rights
of individual accused — remain constant, in grave situations, as for
instance in heinous or terrorist-related situations, I believe that
the rule of law should take into account the importance of what is at
stake, whilst maintaining the basic rights of the defence.

Let me address this question. Is the concept of the rule of law strong
enough, or elastic enough, to devise means which would help maintain a
balance of "justice"? Justice for victims, as well as fairness to
those charged?

Under Scottish criminal law, for instance, the concept of a fair trial
is not solely a question for the accused. Lord Wheatley said that
"while the law of Scotland has always very properly regarded fairness
to an accused person as being an integral part in the administration
of justice, fairness is not a unilateral consideration, fairness to
the public is also a legitimate consideration." The judge went on to
say, "It is the function of the Court to seek a proper balance to
secure that the rights of individuals are properly preserved."

There is much tension in the rule of law as applied to
terrorist-related offences. And there is increasing concern that the
dice are loaded against the prosecuting agency, and in favour of the
accused terrorist. This perception of reasonable people — people who
also believe in the presumption of innocence, the need for a fair
trial, etc. — cannot just be wished away or ignored.

In the New York Times of March 25, 2006, it was reported that
England's home secretary, Charles Clarke, said that under the
adversarial system of justice, convictions were notoriously difficult
to secure in terrorist trials. He would support a shift to an
inquisitorial system in terrorist cases, because it offered protection
to the public. In France, magistrates interrogate suspects before
their lawyers are brought in. But the home secretary then added —
almost as an afterthought — "that nobody wants to give up the judicial
system that has served the English-speaking peoples so well for more
than a hundred years: But we have never faced such a menace before,
and we may have to make an exception for terrorism." (Emphasis
provided) What that exception is has to be worked out separately in
every nation-State.

I believe that victims of acts of terrorism are not to be treated as
mere victims of some tortuous action and given ex-post facto benefits
evolved by legal regimes in the form of "socialisation of risks."
Social guarantees for the benefit of victims of terrorism are simply
not enough. Serious consideration needs to be given to the proposal
that in terrorist-related offences, the right of the accused to remain
silent (a right given to him under most criminal justice systems)
should give way to the larger interests of society, and of victims
that are affected by the criminal acts.

In 1968, Lord Hartley Shawcross, who for many years was Britain's
Attorney General, gave evidence to a commission of inquiry set up in
Quebec, Canada, to study the administration of criminal law. In his
autobiography, he records what he said:

During evidence that extended over two days I told the commission that
I favoured the French procedure of juge d'instruction who conducts a
preliminary examination of witnesses, including the accused, whose
answers then form part of the evidence in the case.

In England judges are more or less umpires enforcing the rules of the
game, after which they throw it to the jury and ask "Howzat?: The
French juge d'instruction on the other hand is more like a scientist,
probing for the real truth.

It is time we recognise that in heinous and terrorist-related
offences, which can be suitably and precisely defined by law, what is
known as the "Right to Silence" is not really a right but a privilege,
and although every accused has a right to be presumed innocent till he
is proven guilty, in heinous and terrorist-related crimes the accused
has an obligation to assist the judge — not the prosecution, but the
judge — in the discovery of the truth. In such cases, the accused
should not have any right to remain absolutely silent and refuse to
answer questions on oath.

The accused, like any other witness knowing the facts, must tell the
Court what he knows. A presumption to be drawn from his failure to
give evidence may not be enough; it might well conflict with the
presumption of innocence, hence there should be a positive obligation
imposed by law on such a person to assist in the investigation, and if
so required by the Court (again, let me emphasise, not required by the
prosecution, but by the Court alone) to give evidence. This would not
transgress, but further the purposes of law. It would not be a
disproportionate response to the serious problem of terrorism.

There are many other causes for the current lack of public confidence
in criminal law administration.

Excerpted with permission from Penguin Books India

Excerpts from Fali S. Nariman, 2006, India's Legal system: can it be
saved?, Penguin

Blurb about the book: There are over eight lakh practising lawyers in
India—after the United States, our country has the second largest
legal profession in the world. But how are lawyers and the judicial
system in India perceived today?  It is no secret that the very
thought of facing the courts in India leaves the common man with a
sense of dread and despair; cases drag on interminably, and justice
sometimes seems like an afterthought. Who or what is responsible for
this situation? Where have we lost our way? It is at times good to see
ourselves as others see us, and the picture is not a very flattering
one, argues Fali S. Nariman, renowned constitutional expert,
practising lawyer and president of the Bar Association of India. In
this frank and thought-provoking book he realistically appraises the
performance of those in the profession and what they need to do in the
years ahead, and addresses some home truths about our country's legal
system.
http://penguinbooksindia.com/Books/BookD...sp?ID=6310

National Conference on "Reinventing Indian Legal System for Achieving
Double Digit Economic Growth"
April 10, 2004, New Delhi

Inaugural Address by Hon'ble Mr Justice Rajendra Babu, Judge, Supreme
Court of India

For more than one decade, both developed and developing countries have
engaged in ambitious economic reforms programs. Justice, law and human
rights are fundamental prerequisites for economic and social
development. Economic Growth cannot be separated from the
corresponding improvement in Legal field. It is difficult to
compartmentalize the `Economic growth' or `Political advancement' or
`Social progress' or Legal improvement' from each other. There is
`development' in the general sense. At the same time it would be
misleading to talk about `Economic growth' or `Legal improvement' as
separate entities. These are all various facets of `Development' that
we are ultimately trying to achieve. It is this integrated view that
we need to develop in the present context. While talking about
`Development' one won't ask whether it is - economical, social,
political or legal. Rather it encomno space passes all. In this
perspective legal or judicial reform could be seen as contributing to
the overall development of the country. Therefore the attempt to
"reinvent Indian legal system" and "attempt to achieve double digit
economic growth" are not fragmented concepts, but are two major
contributors of the national development.

Ultimately we desire to make India a developed country. Here the role
of law is as important as that of economic growth. Therefore, if we
want to develop we need notable economic growth. And economic growth
is impossible to achieve without a vibrant legal system. For example
the `East Asian Miracle' was strongly supported by a strong legal
system in those East Asian economies. The booming of the Chinese
economy is heavily indebted to the revamping of its legal system. The
lack of a strong legal system also contributed to the recent collapse
of Argentinean economy. Such connections between the collapse of
economies and the non-active legal systems could be understood by
learning the socio-economic systems of many African and Latin American
countries. No country could achieve the status of `Developed' without
a strong legal system. Legal and judicial reform is important not only
for legal development, but also for development in other spheres, such
as economic development or political development and so on. This in
turn contributes to overall development of the country. All these are
like a thickly interwoven textile. Hence the economic growth of a
country should be at par with its judicial reforms. Then only can
overall development be achieved. We should be clear in the context of
this conference that we must look at the law locally and think about
it globally. In other words, legal standards are ones that are
normative and can be generalized, but law is necessarily a locally
developed framework. Reinventing the Indian legal system can provide
an enabling environment for achieving a double-digit economic growth.

In recent years, the interest in the role played by institutions in
shaping economic development has grown steadily. In fact, according to
some estimates countries with good institutions are twice as efficient
and grow three times as fast, in per capita terms, as countries with
poor institutional endowments. Among the institutions that most
influence economic performance, the legal and judicial systems play a
prominent role.
No matter how good is a country's legislation, it will not stand up by
itself. To be effective, laws need to be supported by well-functioning
enforcement and dispute-resolution institutions. In this way, the
courts play a central role in market economies, guaranteeing that the
rule of law in fact applies. Let me now venture to offer a few
examples of what aspects of judicial functioning influences economic
functioning.
Technological Progress : A first channel through which
well-functioning legal and judicial systems may stimulate growth is by
protecting intellectual property, and in this way fostering
technological progress and absorption. There are two different
mechanisms that could produce this result. One, less developed
countries with stringent intellectual property legislation may find it
easier to buy advanced technology from firms in industrialized
countries, whether embodied or not in capital goods. Two, by
encouraging domestic firms to invest in research and development
(R&D).

Investment: Another way well-functioning judicial systems foster
growth is by stimulating a more rapid accumulation of factors of
production. In particular, investment in both physical and human
capital will be encouraged by securing property rights,
well-functioning legal and judicial systems and political stability.
In the case of rights that depend on a grant from the State, such as
land, intellectual property and the right to explore mineral resources
or other public concessions, poor enforcement and the risk of
administrative expropriation reduce the expected value of the property
right and, therefore, the returns on new investment. Dysfunctional
judicial systems may also discourage savings and stimulate capital
flight, reducing the volume of funds available to finance investment.

Efficiency: Finally, malfunctioning judicial systems hamper growth by
stimulating an inefficient use of resources and technology, moving
countries away from their potential or best practice output. High risk
and large transaction costs move the country's price system away from
international standards mainly by distorting resource allocation.
Because if contract and property rights are properly enforced, firms
may decide not to pursue certain activities, forego the opportunity to
specialize and exploit economies of scale, mix inputs inefficiently,
not allocate production among clients and markets in the most
efficient fashion, keep resources unemployed, etc. Efficiency may also
be affected if weak judicial performance segment markets to an extent
that competition is significantly reduced.

Securing property rights against administrative expropriation: The
most oft-cited channel through which functional judicial and legal
systems stimulate growth is by protecting private property rights from
administrative expropriation. The risk of expropriation arises from
the fact that the State, as any party in a contract, has an incentive
to behave opportunistically. Also as in any contract, the risk is
higher the more specific is the investment the other party has to make
to fulfill its side of the bargain. What makes the State so special is
the monopoly of legal coercion given to it by society, which increases
its degrees of freedom to unilaterally change the terms of the
contract or not abide by them, while still not breaking the law.
Therefore, while contracts may specify clauses aimed at constraining
government opportunism, transacting with the public sector is
particularly dependent on the protection awarded by an independent
judiciary.

A key element in economic liberalization is to reduce uncertainty for
investors. Things other than courts contribute, such as policy, trust,
crafting legislation, and more. While the public may perceive the
judicial system as having a major influence at certain moments noted
by the media, it may in fact have its greatest influence when it is
not widely noticed because, that is when it is casting its influence
silently into administrative and legislative arenas, keeping officials
honest and balanced in their responsibilities. This in turn influences
investment decisions.

The economic growth of any country will greatly revolve around a
strong, healthy and effective judicial system. The innumerable delays
within our judicial system, the myriad of procedures and documents and
improperly trained judges have all resulted in ensuring that our legal
system remains a big hurdle in achieving double digit economic growth
for our country. Hence we need to analyze the role of legal and
judicial institutions in determining the pace and form of economic
development is crucial. What are the merits and flaws of different
legal and judicial systems? What are their distributive impacts? How
should legal and judicial systems be reformed in developing and
transition economies to foster economic growth? Who are the
beneficiaries and the opponents of judicial reform in these countries?
How to employ law as a tool for achieving economic growth? These are
all questions that this conference should seek to address.
The theme of this conference is "Justice in Time". In fact the modern
business is all about `timings'. And time, invariably is the essence
of the business transaction. Therefore justice in time is a
sine-qua-non of modern business transactions. The oft-repeated phrases
"Justice delayed is justice denied" and "Justice hurried is justice
buried" may sound cliched, but the true challenge even today before
the legal fraternity is to strike the right balance between the two.
In this context our aim should be to ensure "quick dispensation of
Justice without being hasty".

A variety of suggestions have been offered on the issue ranging from
increasing the number of judges, to limiting the right to appeal and
to setting up of more specialized courts etc. Specialized courts for
adjudicating bankruptcies, labor relations disputes, tax cases, or
other commercial matters are usually high on the list of priorities
when we think about creating the institutional infrastructure for a
market economy. These courts have gained favor in the United States in
the past 50 years and have a longer history in some parts of Europe.

Therefore, in my view we could concentrate in establishing Specialized
courts for adjudicating commercial or economic disputes. Specialized
courts have several distinguishing characteristics. They are subject
matter specific- that is , judges handle only certain kinds of cases.
They usually follow streamlined rules of procedure to speed up
hearings and increase accessibility. They shorten the appeals process,
and they may or may not permit appeals to courts of general
jurisdiction. Often, but not always, they recruit through attractive
terms of service especially high-caliber judges who are experts in
their fields. These characteristics offer several theoretical
advantages.

Subject-matter specialization can reduce delay and improve the quality
of decisions. Judges who hear the same types of cases day in and day
out come to recognize fact patterns and issues more quickly and
accurately than those who encounter cases only occasionally. As a
result they can control the lawyers more easily, see possibilities for
settlement, and write better decisions. Their chance to see trends may
also put them in a better position to develop the law to suit evolving
conditions than judges who see a mix of cases.
Streamlined procedures reduce the time and money parties spend on
litigation. It may lower barriers to the use of courts by making
filing easier and by clarifying what litigants need to do to prepare
their cases.
Similarly, a shortened appeals process blocks the tactical use of the
courts by parties to a dispute. It makes endless appeals to postpone
payments or to harass litigants difficult. And using the appeals
process to shift costs under conditions of high inflation or deflation
becomes less feasible.

The ability to attract high-caliber judges through attractive terms of
service tends to improve the quality of judgments and discourage
corruption. It is sometimes argued that the temptation to accept
bribes increases with the difference between the perceived adequacy of
compensation and the amounts in controversy in the cases that come
before the court. If so, giving high compensation or other benefits to
judges who handle disputes in which large amounts of money are at
stake theoretically may help make these courts "good governance
zones."

I only want to provoke a line of thinking by advancing the idea of
Specialized Business Courts in the larger context of delineating the
role of legal system in economic growth. There is persuasive evidence
that well-functioning judicial systems foster economic growth. By
securing property and contract rights, reducing policy instability and
curbing administrative expropriation, impartial, timely and
predictable judiciaries stimulate investment, efficiency and
technological progress.

I am positive that the aspects that I have focused on and many others
will be discussed and analysed in the following business sessions. I
am glad that this conference is a step towards achieving a steady
double-digit economic growth by improving and strengthening our legal
system. I also applaud the Federation of Indian Chambers of Commerce
and Industry and the Bar Association of India for organizing this
Conference. I wish this conference every success.
Thank you.
http://www.ficci.com/media-room/speeches-p...ustice-inug.htm

National Conference on "Reinventing Indian Legal System for Achieving
Double Digit Economic Growth"
April 10, 2004, New Delhi

Speech by Dr N.M. Ghatate, Vice-Chairman, Law Commission of India

Speedy justice has been declared a fundamental right by the Supreme
Court over 25 years back. It still remains a far cry. Direct
consequence of which is loss in the confidence in legal system which
in turn has resulted in increase in crime rate because criminals know
they can get away and even honest men are compelled to resort to
extra-legal way to redress their grievance.

Various proposals to tackle the problem of judicial arrears and delay
have been tried such as to ease the work-load of the courts by
establishing specialized tribunals; increasing the manpower of
judiciary, increasing the number of courts, simplifying the procedural
laws and cutting down appeals. However, the problem continues and the
society suffers. The public has right to know who is responsible
whether it is the judiciary, the executive or the legislature? The
judiciary faults the executive for not providing judicial manpower and
court in proportion to population. This justification is valid only to
a certain extent.

Adjudication is not like essential services like water, health-care
which have direct nexus with population. And this argument tends to
make the executive and legislature primarily responsible for the
arrears which is not correct. Legal community, which includes judges
and lawyers, also has a a responsibility to tackle this problem after
all reason de atre for their existence is justice to the litigant
public in civil cases and to society in criminal cases. The Supreme
Court has interpreted Articles 124 and 217 of the Constitution in
Advocates on Records case decided in 1993 that it will have primacy in
appointing judges. The correctness of this judgement is outside the
scope of this article. But having taken over this power, it invariably
follows a duty on the Supreme Court that there are no vacancies. It
knows well in advance when a particular judge will retire and vacancy
will arise. Therefore, the recommendations of persons to be appointed
as judge should reach the government well in advance. As of today the
total strength of judges in High Court is 669 out of which there are
163 vacancies which come to more than 25%. The total strength of
judges in Supreme Court is 26, there are two vacancies. I understand
that the government has been asking the judiciary to send the names
again and again. Why aren't the names sent. If recommendation to fill
the vacancies are not sent in time, and therefore vacancies are not
filled and delay occurs in disposing of cases who is responsible?
Since the date of occurrence of vacancy is known years before, the
practice of submitting the names and appointment should be over well
before the vacancy occurs so that each court works full sanctioned
strength at all times. However, this is only a part of the problem of
delayed justice.

The other method, which is no less important to solve this problem of
delay and arrears in we should have performance assessment or audit,
of work-load of court as well as individual judges and advocates on
the basis of statistical data. This is now possible with
computerization. This data should include details such as about the
number of cases disposed by each judge, names of judges who heard and
lawyers who appeared in the case; adjournments granted with names of
advocates and judges, time taken to decide the case, time lag between
judgement and the conclusion of hearing, legislation under which cause
of action is evoked or is appealed; what was the result and defect
pointed out and suggestions made to amend laws by the judiciary. Such
a data base will provide basis for assessing the efficiency of judges
and the advocates and the impact of laws in generating litigation. It
will also facilitate mapping the judicial activity subject-wise,
Act-wise as well as judge and lawyer-wise. It will also help
legislature to amend laws to plug loopholes and take remedial actions
to control litigation.

Such data base will also facilitate monitoring progress of pending
cases and help Chief Justices to find bottlenecks and take action in
management of cases and enables him to assess the quality and
performance of the judges and the bar on the basis of facts and
figures.

Publication of such statistics will increase the judicial efficiency
as found in the U.S.A and Britain. The American and the British courts
annually publish such reports. This has not only helped in reducing
delays but has also made legal system more transparent and thereby
more efficient and accountable to the people. It will also enhance the
image of the judiciary in the public eye.

Unfortunately, our judiciary is reluctant to part with even simple
statistics available with them. For example, pursuant to a
Parliamentary question about the time lag between conclusion of
hearings and delivery of judgements and number of cases decided by
judges in the High Courts, the government asked for information and
about the number of judgements delayed over a period of one year. One
High Court replied that it would infringe its autonomy to furnish such
information. How? When it has direct relation with the delay. There
has been instance when some judges took more than two years to deliver
judgement. Also there are cases when judges having heard the case
retired without delivering judgement. As a result there had to be
fresh round of hearing causing unavoidable delay but also expense to
litigants. There was a case when one Chief Justice did not deliver a
single judgement during his entire tenure. Independence of judiciary
does not mean unaccountability. In a democratic system every
institution is accountable to people – the ultimate sovereign.
Judiciary and lawyers exist for litigants and general public. In the
circumstances, there is an urgent need to have a law providing for
collection and publication of judicial statistics. This will not only
help in better management of courts and pinpoint cause of delays and
take effective measures to tackle the problem of arrears. It will also
in turn increase the efficiency of courts and lawyers and thereby
improve the image of our legal system.

These suggestions will help in speedy justice, which as mentioned
earlier, is the command of Constitution under Article 21 – which is
the soul of Fundamental Rights and therefore binding on all the arms
of the state.
http://www.ficci.com/media-room/speeches-p...ice-ghatate.htm

JUDICIAL REFORM
Protect integrity, independence
Fali S. Nariman (Sept. 24, 2005)
Like old clocks, our judicial institutions need to be oiled, wound up
and set to true time.
— Lord Woolf, Lord Chief Justice of England
—
ARMED with a written Constitution our proud boast in India is that we
are a nation governed by laws, and not by men. But this is only true
in theory: the law is ultimately what the judges of the final court
say it is.
The reach of India's highest court is all-pervasive. The Supreme Court
sits in final judgment over the decisions not only of the high courts
in the states (there are 18 high courts for 28 states and Union
Territories), but also tribunals, (Central and State) functioning
throughout India; there are literally hundreds of them. And the law
declared by the Supreme Court, including its pronouncements on the
validity of enacted law, is binding (under the Constitution) on all
other courts and authorities in the country.

There is virtually no area of legislative or executive activity which
is beyond the highest court's scrutiny. Its writ extends to all two
million square miles of Indian territory, and over its (now) one
billion inhabitants. Empowering itself with the trappings of modern
technology, India's Supreme Court has been performing a stupendous
task with considerable distinction. But what of the future?

Public confidence
First, and always foremost, the judiciary as an institution needs to
preserve its independence, and to do this it must strive to maintain
the confidence of the public in the established courts. Independence
of judges is best safeguarded by the judges themselves — through
institutions and organisations that the law empowers them to set up,
to preserve the image of an incorruptible higher judiciary that would
command the respect of all right-thinking people.

In the United States, under the Judicial Councils Act, 1980, this task
has been gladly undertaken by the judges. But regrettably, so far,
there is no law in India to guide our judges, though there is a felt
need for one. The 1980 US Act confers powers on bodies constituted of
judges to take such action against a federal judge "as is appropriate,
short of removal." Under this law, a committee of fellow judges had
recently investigated complaints against a Federal District Judge,
John McBryde.

The Judicial Council had reprimanded him and suspended him from
hearing new cases for a year. McBryde argued that the 1980 law
violated the judicial independence which the US Constitution had
guaranteed to life-tenured federal judges. He said that it also
interfered with the mechanism of Congressional impeachment that the US
Constitution had established for removing judges. A one-year
suspension from hearing new cases, (he argued), was nothing but a
"temporary impeachment". But a US Court of Appeals rejected all these
pleas. And a petition for certiorari was denied by the US Supreme
Court: it accepted the argument of the Solicitor-General that judicial
independence, protected by Article III of the US Constitution, was
meant "to insulate judges from interference from other branches of
government — not from oversight by other judges". An American judge
once famously said: "some things will sometimes go wrong — in the
judiciary".

In India in recent times, some things have gone wrong. And citizens
need reassurance of a system of judicial accountability — a remedial
mechanism which will protect the higher judiciary from some of its own
members who have gone astray. Such reassurance can only be provided by
enacting a law on the lines of the American model.

Other aspects of judicial reform are not lacking for want of ideas. We
have been overwhelmed with innumerable reports of Law Commissions
(nearly 200 of them!) on all aspects of judicial governance. And a
bench of three Justices of the Supreme Court (through a judgment
delivered by its Seniormost Puisne Judge on August 2, 2005) has drawn
up a fine blue-print on case-management, on how to make recent
amendments in our procedural laws work on the ground, and how to get
more cases moving along in three different tracks: Fast Track, Normal
Track and Slow Track.

The Justices have requested the high courts to implement this
blue-print — they could not direct the high courts to do so because
under our constitutional scheme the latter are autonomous
constitutional bodies not subject to administrative directions of the
Supreme Court. But it is in the high courts that there are the largest
number of roadblocks and delays; in their administrative functioning
the high courts are answerable to no one but themselves. This often
enables the Supreme Court to plead helplessness: not a good augury for
integrated court-management. It is time that the Supreme Court is
entrusted with direct responsibility for the functioning of the high
courts: only then can the highest court be an effective apex court,
only then can the Supreme Court be made answerable (as it should be)
for judicial governance for the entire country.

Set standards
Judicial governance means that judges who are constitutionally
entrusted with the responsibility of protecting the rights of citizens
must also be seen to be persons of rectitude. They must make annual
financial disclosure statements, not privately to their respective
chief justices, but publicly. This is done by justices of the Supreme
Court in the world's oldest democracy, (the USA) and it is appropriate
that such disclosure statements of its judges be also published in the
world's most populous democracy (India). In this land of The
Bhagvadagita which says: "Whatsoever great men doeth, that other men
also do; the standard they set up, by that the people go", judges must
set an example for ministers, parliamentarians and higher officials of
government to follow.

And what about the law's delays? In a three-tier, precedent-bound
system like ours cases go on far too long; and one of the primary
reasons is too much time spent by lawyers citing case-law. Over the
years, our law reports are filled with some useful, and many
not-so-useful decisions. The Americans had the same problem but the
surfeit of judicial opinions in the United States is now kept strictly
under control by a simple judicial device known as "un-publication of
opinions". "Un-publication" means that an opinion, (or judgment)
because it is restricted to the facts of the case is (judicially)
designated not fit for publication in the official law reports, and
when this is put out on the website as an "un-published" opinion, it
just cannot be cited in court. This has proved most effective: the
rate of un-published opinions of federal courts in the United States
is presently around 80 per cent! To introduce this system in India
will require much spade work; thousands of judgments will have to be
scanned and declared "un-published"; but it will be worth the effort.
It will help reduce the law's interminable delays.

Next, take the business of judging — everyone knows that it is not
easy. Judging, like lawyering, is a technique — it requires experience
and expertise. And the most important, and yet the most deficient
aspect, in the judging of cases — in many of our High Courts today —
is the lack of will on the part of some of its judges to push cases
along towards either a speedy settlement or a speedy resolution. The
judge in India — unlike the modern judge in England and in the US —
still functions like an umpire in a cricket match: he will not declare
you out until either side makes an appeal.

Pushing cases can be unpopular. But once the bar recognises that a
particular judge sitting in a particular courtroom has made up his
mind to go through his list, and will not countenance lawyer's pleas
for adjournments, the bar in turn takes note, and cases somehow get
decided more effectively and in a more satisfactory manner than in
other courts. Why? Not because the judge sitting in that courtroom is
necessarily a person of greater erudition than the one sitting in the
next — but simply because he or she never forget the she when speaking
about judges) is practical and pragmatic, and gently but firmly moves
cases along towards a conclusion, disregarding what the lawyers may
want.

Fear of costs
And then, one outstanding failing in our system of judicial governance
is that although mandated by law, costs hardly ever follow the event.
The fear of costs is what the courts must instil into the dilatory and
speculative litigant including, I would plead on the litigant who
undertakes a PIL (public interest litigation). Projects and programmes
devised by popularly elected governments are held up for years in the
high courts (and in the Supreme Court) at the instance of persons who
have no direct interest, but on some suspicion of corruption or the
like — and when at the end of a tortuous judicial process such PILs
are ultimately dismissed, the loss in economic terms to the community
at large is never compensated. In India there is hardly any court
decision where costs are made to follow the event.

Then, take the problem of vacancies of judges in the superior
judiciary — they keep piling up. An action plan to prevent this is not
one which requires a high degree of sophistication or planning. It
requires only some elementary co-ordination between the Justice
Ministry and chief justices: of high courts and of the Supreme Court.
We all know that judges in high courts retire at 62 and in the Supreme
Court at 65. So there need be no unfilled positions: dates of birth
are recorded, and anticipated vacancies can always be filled in time;
if there is the will to do so.

And the imbalance in the retirement age of judges of high courts and
of the Supreme Court should have been rectified years ago. The ages of
retirement of all members of the higher judiciary — whether a judge of
the Supreme Court or of a high court — must be uniform, if only to
prevent the degrading spectacle of judges, when they reach 61,
anxiously looking upwards, waiting to be picked up and moved to the
highest court — and so gaining three more years on the bench. So what
do they do? Some (not many, I am proud to say), only some, take to
sycophancy, and since (as a Harvard Law Professor once told me) "great
men enjoy the genuflections of other men", flattery does help,
sometimes!

The present woeful method of selection of members of the higher
judiciary by the judges themselves, can only be remedied by
Parliament, since it has been mandated by judicial diktat, not by the
Constitution or by law. Judges of the high court and the Supreme Court
can be trusted to decide cases that come before them — but they cannot
be trusted to make absolutely binding recommendations for appointments
to the higher judiciary.

Exemplary discipline
In the end, reform is not merely about cases and the speed with which
they are decided. The judiciary of the 21st century needs to set an
example in exemplary self-discipline: discipline in its approach to
legal, and more often, political-cum-legal, problems that fall in its
lap. There is also need for greater transparency in the lifestyle of
the justices, and an abiding tolerance of public criticism. Litigants
no longer accept judge's decisions as they used to in the past. The
mystique of the judiciary — the "awesome Majesty of the Law" as it
used to be called — is no longer a sufficient protection. The job has
become harder. Judges are seen less as the impersonal agents of a
system and regarded more as human beings responsible for the failure
of the losing party; the attacks have shifted from the ball to the
player! Hence the need for ethics — and some guidelines from the top,
which "the top" too must scrupulously observe!

In a country like ours, and in times like these, it is not enough for
the judiciary to be independent of the executive and of all other
external influences. The Judges, because of the high office they hold
and the plenitude of powers they exercise, must be seen to have
qualities of excellence — of mind and of heart. Above all they must be
men and women of courage. Nobility and courage in the highest court
begets nobility and courage all down the line. In this country the
judiciary because of its prime importance needs both the Biblical
exhortation, and the Biblical warning that follows it: Ye are the salt
of the earth; but if the salt loses its savour wherewith shall it be
salted"?

— The writer is an eminent jurist and a Member of Parliament.
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