CJI: Law must not become instrument of oppression
What sustains judicial institutions in the long run is your sense of compassion, empathy, your ability to answer the plaintiff’s cry of a citizen in the wilderness DHANANJAYA Y CHANDRACHUD, Chief Justice of India
NEW DELHI: The law should not be used as an instrument of oppression by those who handle the law, stressed Chief Justice of India (CJI), Dhananjaya Y Chandrachud on Saturday, making a fine distinction between law and justice, adding that judges should have the “ability to hear unheard voices and unseen faces in the system” as this alone can sustain the judicial institutions in the long run.
Highlighting that law and justice do not necessarily follow the same linear path every time, the CJI flagged that a judge has to ascertain where the balance between the law and justice lies to be able to truly perform her or his mission as a judge.
Addressing the HT Leadership Summit where he chose to ignore his prepared speech and instead “spoke from the heart” on issues plaguing the judicial system, the challenges facing judges, and the criticism directed against the judiciary, CJI Chandrachud was emphatic that law must remain an instrument of justice and the responsibility is on all the stakeholders to handle the law in furthering the cause of justice.
“The core of judiciary is to judge. Technology, infrastructure and filling up of vacancies are just milestones in our mission. But above all, what sustains judicial institutions in the long run is your sense of compassion, empathy, your ability to answer the plaintiff’s cry of a citizen in the wilderness because when you have that ability to hear unheard voices and unseen faces in the system, you then try and see where the balance between law and justice lies that you can truly perform your mission as a judge,” he said. Law can be an instrument of justice but law can be an instrument of oppression as well, pointed out the CJI, as he referred to how the law that we have today was used in colonial times to oppress citizens.
“How then as citizens do we ensure that the law becomes an instrument of justice and not an instrument of oppression? The key to ensure the first outcome
and not the other is the way in which all decision makers, and not just judges, handle the law,” he emphasised.
Justice Chandrachud added that the role of the Supreme Court, in his opinion, is to hear all kinds of cases that litigants bring to it unlike the supreme courts in various foreign jurisdictions where only certain categories of cases with major significance are taken up.
“Once we basically conceive basic constitutional structure and design, it is important we don’t equate ourselves with supreme courts and constitutional courts of other countries, or some developed countries because we have a uniquely Indian structure for our own institutions which lie at the highest levels of the court system in India,” he said.Justice Chandrachud, who took over as the 50th CJI on November 9, underscored that the first challenge before the SC is the “challenge of expectations, as almost every social, legal and a large number of political cases land at its doorstep”.
Flagging that the government has very often been the largest litigant in the court, the CJI said. “The reason why the government is the largest litigant in the court is for the simple reason that we have over the last 70 years bred a culture of indecision at the low levels of the government,” he said, adding there is a “culture of distrust” among public officials and top decision makers who, out of their fear of consequences of taking a decision, would rather have a court decide.
“All those cases are deferred to the court. That is the reason why the courts have such a huge backlog of cases,” said the CJI, tackling the issue of huge backlog of cases in judiciary.
The third challenge, the CJI said, is a “culture of faith”, as people feel judicial decisions will favour them.
“This is the generation of people’s expectations in the court which leads to the proliferation of litigation. I say that with a sense of optimism but that’s also a great challenge and a sobering reflection for a judge... are we really capable of handling all these issues which come to us,” asked justice Chandrachud.
Referring to the criticism of judicial overreach in this context, he said: “One critical area that comes to the court is – how do you distinguish between the lines of area of policy and legality?” Often, the CJI added, courts are criticised for treading upon areas of policy that lie with the executive. But the difficulty arises when a case has some “facets of legality “and some “facets of policy”, justice Chandrachud said.
At the same time, the CJI clarified that he was open to criticism even as limitations of infrastruc“Merit, ture and vacancies dog the judiciary and lead to overflowing judicial docket in courts.
“I look at criticism in a very positive light...all criticism of the Court is really an effort for us to reform.” During the six-plus years as a SC judge, justice Chandrachud delivered an array of judgments. These included some celebrated decisions on privacy as a fundamental right, decriminalising homosexuality, entry of women into Sabarimala temple, unwed woman’s right to safe abortion, and even the exhaustive declaration in the Ayodhya title suit case among others.
Having championed the cause of women and marginalised sections of society through his judgments, justice Chandrachud spoke about merit being the root cause in preventing women an equal place in society.
in the conventional sense, in our society, is also a product of our cultural stereotypes. These stereotypes begin from the entry level that deny women an equal share in the legal profession which continues to be feudal, patriarchal, and not so accommodating of women... When we talk of broadening diversity within the Indian judiciary, we also need to have a hard look of how we conceive of merit and how we think of diversity,” he added.
He described courts as service providers to citizens and said: “Colonial designs of our democratic institutions can no longer hold good today 75 years independence and since the birth of our Constitution.”
Justice Chandrachud added that though it is great that the judiciary has the expectations of the citizens, it is important to understand that there is life beyond the law and life beyond the courts. “We need to understand the limits as well as the potentialities of our courts and institutions... because we should not become cynical about the potential for doing good by the use of the law and by the use of courts as instruments to advance justice.” The CJI concluded by underscoring that there is always a human story between the pages of legalese and it is only when judges realise that human story, that they can advance the cause of justice.
‘OFTEN THE COURTS ARE CRITICISED FOR TREADING UPON AREAS OF POLICY THAT LIE WITH THE EXECUTIVE. BUT THE DIFFICULTY ARISES WHEN A CASE HAS SOME “FACETS OF LEGALITY “AND SOME “FACETS OF POLICY’