SPEECH
BY SHRI K.R. NARAYANAN, PRESIDENT OF INDIA, WHILE INAUGURATING THE ALL
INDIA SEMINAR ON JUDICIAL REFORMS
NEW DELHI, SATURDAY,
DECEMBER 5, 1998
I am happy to be present
at the inauguration of this All India Seminar on Judicial Reforms. I must
congratulate the Supreme Court Advocates on Record Association for organizing
a seminar on this very important topic. Your Association has been responsible
for pioneering several constructive initiatives in bringing about changes
in the functioning of our legal and judicial system. You have indeed been
the paragon of an active and alert Bar, a bridge between the judiciary and
the general public.
The question of judicial
reforms must be viewed against the basic background of the relationship
among the trinity in our constitutional system - the Parliament, the Executive
and the Judiciary. Our democratic system is based not only on checks and
balances among the trinity, but also on the functioning of the three organs
of the State in essential harmony towards the common goals enshrined in
the Constitution viz. the safeguarding and advancing the civil and political
rights, and in a more dynamic sense, promoting the social, economic and
cultural rights and aspirations of the people. There might be circumstances
in which one or other of the three institutions plays a more positive role,
but none of them is to encroach upon or highjack the functions of the other.
Judiciary, for example, is to provide, in the classic phrases of Justice
Douglas of the United States, "the sobre second thought", "the cooling period"
or "the contemplative pause" against the excesses of the legislature or
theexecutive. In fact in modern democracies the Judiciary has often gone
beyond that and indulged in judicial activism verging upon judicial adventurism.
However, in an established and well-balanced democratic system, judicial
activism rarely adventure beyond certain limits. Because ultimately it is
the Legislature, and the Executive created and sustained by the Legislature,
that is accountable to the people whose will, after all, is sovereign.
Judicial activism of
the kind I have mentioned above does not constitute any sort of change or
reform of the judicial system. In India, in most of the cases of so-called
activism, what the judiciary has done is to bring to the fore the principles
and objectives which have been stated in the Constitution explicitly or
implicitly, but which the Executive, for one reason or another, have been
unable or unwilling to implement in practice. What it has done is to amplify
the scope of the fundamental rights or to elevate some of the Directive
Principles of the Constitution to the level of the fundamental rights which
was what the founding fathers had envisaged and which have become in the
contemporary world indisputable rights of the citizen like the right to
work, the right to education, right to health and healthcare, and environmental
and human rights.
In this respect the device of public interest litigation
could be described as a major judicial innovation in the Indian judicial
system. Lord Wolf of the United Kingdom has expressed gasping admiration
for the work done in the field by the higher courts in India in attempting
to exercise judicial control over the Executive. Public interest litigation
has extended the scope of the judiciary to an array of issues which remained
hitherto beyond the reach of the citizen. But it seems to be important to
find a way of avoiding frivolous and indiscriminate litigation being admitted
by the Courts. Judicial restraint should be considered the counterpart of
judicial activism.
The facility of public
interest litigation has made law and justice more accessible to the generality
of the people. To treat even a simple post card from an aggrieved person
as a writ petition is nothing less than opening the portals of law to the
ordinary citizen for the redress of his grievances in regard to his social
and economic rights and liberties. But notwithstanding these facilities
the citizen's access to law remains limited. A more elementary question
is the cost of litigation in India - how much justice a person can afford?
Legal aid to the citizen has occupied the attention of lawyers, judges and
Law Commissions ever since our Constitution was enacted. In the heyday of
the Welfare State it was looked upon as the responsibility of the Government.
But that has not worked.
In the present, which may be described as the dawn
of the age of private enterprise in our country, could the private sector,
and particularly the legal profession itself, be motivated to take the initiative
in finding a solution to the problem. I have heard some group of lawyers
proposing that a fund for legal aid must be raised by the lawyers themselves.
It is the responsibility of the whole society, but one feels that the flourishing
legal community has the capacity and the goodwill to realize a proposition
of this kind.
A reform that can be
undertaken is to simplify the legal procedures involving litigation and
the disposal of cases. Laws delays are proverbial and it is in this field
that reforms are urgently needed not only to reduce the mounting cost of
litigation but to see that justice is not denied to people. A combination
of factors has conspired to make law a time-consuming process -- the intricacies
of procedures, the ingenuity of lawyers in prolonging cases, even the indifference
of judges, and the unending process of appeals that is available. It has
been calculated that the prosecution time for an average case in our country
is more than four years, and that only 4% of the FIRs result in conviction
in our country.
The growing population and the rapidly growing volume of
cases and the work connected with them, and the low ratio of judges to the
population are all cited as reasons for this intolerable delay in the disposal
of cases. In fact it has been estimated that the backlog of arrears of cases
in the country is a mind-boggling figure - 30 million. The government and
the judiciary itself must apply their minds more seriously than hitherto
in order to tackle this enormous backlog of undisposed cases. Each of the
30 million arrears represent the delay and the denial of justice to the
people. Now that the real power for the appointment of judges is in the
hands of the judiciary itself, one hopes that at least all the sanctioned
posts of judges remaining unfilled can be filled by the initiative of the
judiciary itself.
In our vast country with
its immensity of diversities it is a matter of importance that in the judiciary
all the major regions and sections of society are represented to the extent
possible consistent with the requirements of merit and the high standards
maintained by the judiciary. The argument is not that the judiciary should
follow some sort of proportional representation. The administration of law
and justice is intimately linked to the social philosophy of the judiciary,
and the social philosophy cannot be entirely separated from the social origins
of those who dispense justice. It has been said that those who live differently
think differently. In regard to the administrators of the country a British
observer had once said that: "In a country like India where loyalties to
family, caste, language, province and religion are strong, it demands of
a good bureaucrat an almost super human indifference to all old associations,
and most super-human capacity to stand apart from the old differences of
society around him, the pleasures of family, friends and groups".
What is
true of the administrators is more true and even more required of those
who dispense law and justice. Though our judiciary has displayed the rare
quality of standing apart and above the divisions of our society, we must
not expect them to be super-human. In any case, it is an old maxim, that
it is not enough to do justice and but that it must be seen to be done.
Hence the validity of the argument, which has been accepted in our social
policy and in our pragmatic practice that all major sections of society
must find a place in the judicial system of the country. By and large we
have followed this principle as a national policy.
One would go a step further
and say that law as it affects women and the weaker sections of society
needs to be reformed, and where there are laws already enacted must be faithfully
followed by the Executive and the Judiciary. All the world over it is well
known that the law is tilted against women. The law governing rape is a
point in question. In India, what with the traditional attitudes of society,
it is not easy if not impossible for a woman to prove that she has been
the victim of rape. Even in the so-called advanced society, the attitude
of judges to women involved in rape is neither understanding nor sympathetic.
It has been reported that in the case of a five-year old girl child who
had been sexually assaulted by her mother's boy-friend, the Judge in the
United States observed that the child was "an unusually promiscuous young
lady". This is the rationale for judicial reform relating to the women's
question and the need for the requisite representation of women on the Bench.
The appointment and transfers
of Judges is an issue of current and perennial importance. It is not for
me to say anything on this subject. I am sure this Seminar will give the
matter the most objective consideration as it is not a matter concerning
the judiciary only but the whole society, every section of society and every
individual in society.
May I wish your deliberations
all success.
Thank you
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