In­dia’s Supreme Court has been per­form­ing a stu­pen­dous task with dis­tinc­tion, but in the last 10 years, the es­tab­lished le­gal sys­tem has be­come un­pop­u­lar be­cause of too much law, too lit­tle jus­tice, too much rhetoric and too lit­tle re­form

India Today - - SIGNATURE - Fali S. Na­ri­man The au­thor is a dis­tin­guished ju­rist and se­nior Supreme Court ad­vo­cate

Like old clocks, our ju­di­cial in­sti­tu­tions need to be oiled, wound up and set to true time.” ( Lord Harry Woolf, Lord Chief Jus­tice of Eng­land from 2000 to 2005) 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 over all 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) 1.2 bil­lion in­hab­i­tants. Mak­ing use of the trap­pings of mod­ern tech­nol­ogy, In­dia’s Supreme Court has been per­form­ing a stu­pen­dous task with dis­tinc­tion.

In the last 10 years, how­ever, our es­tab­lished le­gal sys­tem has be­come un­pop­u­lar be­cause of too much law, too lit­tle jus­tice, too much rhetoric and too lit­tle re­form. We need to move on: To do some­thing dif­fer­ent, some­thing that we have not done be­fore. Il­lus­tra­tively, I sug­gest the fol­low­ing:

Curb the sur­feit of case- law. In a three- tier, prece­dent- bound sys­tem like ours, cases go on far too long; one of the pri­mary rea­sons is that too much time is 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 US 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 “un­pub­lished” opin­ion, it can­not be cited in court. This ex­pe­di­ent has proved ef­fec­tive: The rate of “un­pub­lished opin­ions” of fed­eral courts in the US is presently around 80 per cent! To in­tro­duce this sys­tem in In­dia will re­quire spade­work: Hun­dreds of thou­sands of judg­ments will have to be scanned and de­clared “un­pub­lished”; but it will be worth the ef­fort: It will help re­duce the law’s in­ter­minable de­lays.

Stop the cur­rent trend of ‘ tri­bunal­is­ing’ the jus­tice sys­tem. Most lit­i­gants be­lieve that they will get jus­tice only in the es­tab­lished courts ( the high courts and the Supreme Court), and not in tri­bunals set up by statutes— even when their de­ci­sions are over­seen by su­per­an­nu­ated judges pre­sid­ing over ap­pel­late tri­bunals. In a vast ma­jor­ity of cases, de­ci­sions ren­dered by these bod­ies in­vari­ably— though tor­tu­ously— land up in the high courts ( through writs un­der Ar­ti­cle 226 of the Con­sti­tu­tion), and ul­ti­mately, in the Supreme Court of In­dia ( through that court’s ple­nary ju­ris­dic­tion un­der Ar­ti­cle 136 of the Con­sti­tu­tion), thus con­tribut­ing in no small mea­sure to the law’s prover­bial de­lays.

Costs should fol­low the event. 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, 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.

Stop rec­om­men­da­tions for ap­point­ment of judges by judges. The present method of se­lec­tion of mem­bers of the higher ju­di­ciary by rec­om­men­da­tions from judges them­selves has out­lived its util­ity. Judges of the high court and of the Supreme Court can be trusted to de­cide cases that come be­fore them— but ex­pe­ri­ence has shown that they can­not be trusted to make bind­ing rec­om­men­da­tions for ap­point­ments to the higher ju­di­ciary.

In high courts, over­bur­dened with its dock­ets, re­spected and ex­pe­ri­enced prac­tis­ing mem­bers of the Bar need to be ap­pointed judges for two, three or five- year terms with­out re­strict­ing them from set­ting up prac­tice again in the same court af­ter they demit of­fice. This would make an enor­mous dif­fer­ence in case dis­posal rates in the high courts.

Re­peal the Judges ( Pro­tec­tion) Act, 1985. This Act had pro­vided for the first time in that year ad­di­tional pro­tec­tion to judges, viz, that no court shall en­ter­tain civil or crim­i­nal pro­ceed­ings against any per­son who is or was a judge, for any act, thing or word com­mit­ted, done or spo­ken when in the course of act­ing, or pur­port­ing to act in the dis­charge of of­fi­cial or ju­di­cial du­ties. “Honourable Judges” ( and be­lieve me, there are many) do not need this ad­di­tional pro­tec­tion. Be­sides, the 1985 law has long out­lived the good in­ten­tions that in­spired its en­act­ment: It is now prov­ing to be a shield for the very few wrong­do­ers who have passed through the sys­tem. There is al­ready suf­fi­cient pro­tec­tion granted to the in­de­pen­dence of sit­ting judges un­der the de­lib­er­ately cum­ber­some pro­ce­dure en­vis­aged un­der the Judges In­quiry Act, 1968. I now be­lieve that the 1968 Act must stay since it makes the ul­ti­mate chap­ter in the re­moval process of a judge of the higher ju­di­ciary ex­tremely dif­fi­cult— as it should be to pre­serve the in­de­pen­dence of the judges. The cur­rent Ju­di­cial Stan­dards and Ac­count­abil­ity Bill 2010 is a poor sub­sti­tute for the Judges In­quiry Act, 1968, which it in­tends to re­peal. The bill has raised more prob­lems that it had in­tended to solve— it should be dropped or with­drawn.

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 did in the past. The mys­tique of the ju­di­ciary ( the “aw­ful 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 a par­tic­u­lar los­ing party in the case! The at­tack has 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— both 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?”

HE­MANT CHAWLA/ www. in­di­a­to­day­im­ages. com


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