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Extempore Speech Delivered at the First Judiciary-Executive Conference at Ranchi on 1st July, 2001
by Dr A.S. Anand, Chief Justice of India
Cite as : (2001) PL WebJour 3
Participating in this First Executive-Judiciary Conference organized by the High Court of Jharkhand is, indeed, a matter of pleasure. It is the first conference being held within less than eight months of the creation of the State of Jharkhand. Importance of this Conference reminds me of a story. A story with a lesson. The great Judge Holmes in his ripe old age once boarded a train, a local train, and as soon as he settled in his seat, he was approached by the Ticket Collector. Lord Holmes started searching his bag and pockets to look for the ticket. He could not find it. The Ticket Collector recognized him and said: "My Lord, please do not bother - whenever you find the ticket, just post it to this Railway Station." Holmes replied: "Young man, that is not what is bothering me. Unless I find the ticket, how would I know where I am going?"
This Conference, therefore, being the first of its kind, should be used to chalk out a direction as to how the Executive and the Judiciary in this State are going to serve the common man in his pursuit for justice. We must know where we are going!
Justice is mankind's cherished desire. It has been there all along. Participating in this Conference, we must first try and appreciate that to provide justice is a constitutional obligation of the State and though that constitutional obligation is required to be discharged through the Judiciary but it can be done only by complete cooperation and harmony between the three wings of the State: the Executive, the Legislature and the Judiciary. When these three wings work in harmony, only then can they produce results. It is one of the very essential characteristics of the Democratic Republic established under our Constitution that we have separation of powers. Of course, there is no provision, I mean, a single provision in the Constitution, which demarcates the separation of powers or compartmentalizes the same. But the Supreme Court as early as in 1951, within one year of the coming into force of the Constitution, discovered the essence of separation of powers as the core of the Constitution in Delhi Laws case1 and 25 years later in 1975 in Indira Nehru Gandhi v. Raj Narain2 The Court elevated this feature of separation of powers to the basic structure of the Constitution. But what does this separation of powers mean? Does it mean, the Executive knows its power, the Judiciary knows its power and the Legislature knows its power? Therefore, they should move in different directions, not to meet at any point of time? This is a misconception. Separation of powers only implies working within the parameters fixed by law and the Constitution for exercise of jurisdiction by each of the wings.
There are some misconceptions about the role of the Judiciary and I may take this opportunity to make an attempt to dispel some of those misconceptions. Sometimes it is felt by its critics that the Judiciary is anti-Executive, or anti-Legislature. There cannot be anything further than this from truth. Please remember that when the Judiciary either invalidates a legislation or finds fault with an executive action, it does not do so to assert any superiority or its supremacy. It does so only in discharge of its constitutional obligations. As a guardian of the Constitution, though not the only guardian, the other wings are also the guardians of the Constitution, the Judiciary in discharge of its constitutional obligations oversees as an impartial umpire what the other wings are doing. Neither the invalidation of legislation nor the striking down of any executive action should be considered as stigmatization by the Judiciary. When the Judiciary upholds a legislation, it does not approve or disapprove any policy. It only tests it within the parameters of judicial requirements. Therefore, the Executive and the Legislature shall have to look at the role of the Judiciary in that context.
One other misconception is about what has popularly come to be called as "judicial activism". Ladies and gentlemen, it is my firm belief that judicial activism reinforces the common man's faith in the rule of law and democracy. However, there is a very big but - and that is that judicial activism is not an unguided missile. It has to be used with all restraint. It is to be used with caution. It is a delicate exercise. It has to be used within the parameters of law. If the courts were to, in the garb of judicial activism, indulge in creating rights where none existed or while interpreting the Constitution, would create confusion rather than certainty then in that event, the ultimate sufferer will be the rule of law. The Judiciary cannot afford to do that. Therefore, by treating judicial activism as creativity, courts must use restraint and caution. They must not create confusion. Activism is justified but adventurism, no. There cannot be judicial adventurism. But what is the criticism against the legitimate use of judicial activism? The criticism, generally heard, is it has never been done before!! Why is the Judiciary now interfering in these matters nowadays? Well ladies and gentlemen, if the arguments were to prevail, it only means that the law must remain static while the society can move on. Unless the law keeps pace with the society, it cannot serve the society. Since the aim and object of law is to serve the society, it must keep pace with the society, otherwise it would be bad both for the law and the society.
In the field of human rights and protection of human rights, the courts must always act in furtherance of the protection of human rights, criticism of judicial activism notwithstanding. The courts in this country are under a constitutional obligation to protect human rights of the citizens. The criticism that courts have now embarked upon looking into matters which are not their concern, is again born out of a misconception. The Judiciary - barring a few suo motu actions, does not act unless it is moved by a litigating party before it. Please appreciate that if a citizen comes knocking at the door of the Judiciary and says I went to my legislator with my grievance but he says "meet me at the next elections four years later" that I went to the Minister and his PA says "Mantri mahoday to bahut busy hai".
Well, after they find the door shut on them by the Legislature and the Executive, should the Judiciary also shut its door to them when they come to it for redressal? If it is so done, what will the citizen do? My fear is that he shall take to the street and that will be bad for the rule of law and will pose a great threat to democracy. To that extent, when the Judiciary responds to his knock, without any prevarication or procrastination - it is acting as a buffer between various wings of the State to maintain the rule of law, which is essential to sustain democracy and as His Excellency the Governor put it, welfare of the people is the supreme law. The Judiciary must take that into consideration.
Last time when I was at an international conference, one of the Chief Justices from another Commonwealth country told me that in his jurisdiction, courts have started relying upon our judgments, but went on to add that where we find ourselves in difficulty is, "your intervention in environmental matters". He frankly asked as to how courts in India interfere in environmental matters? My answer to him was that Article 21 of the Constitution of India guarantees life and liberty to the citizen. Life does not mean mere existence. Life means to live with dignity. To lead a healthy life, you need clean air, pure water, forests and unpolluted environment. I told him that, perhaps, you are not aware that under the Constitution of India, the Directive Principles provide it as a duty of the State to protect and preserve the environment. I explained to him that in India, the Supreme Court was vested with certain extraordinary powers which may not be available under many other Constitutions - the power emanating from Article 142 of the Constitution, which says that the Supreme Court may make any order in the interest of justice in any cause or matter before it. I mentioned Article 144 by which all authorities, civil and judiciary in the country, shall act in aid of the orders of the Supreme Court. I said these powers were given by the framers of the Constitution and not "created" or "usurped" by the Judiciary. I told him that Directive Principles are not enforceable so far as the courts are concerned but the State cannot be heard to ask as to why "you are asking us to protect the environment" because "it is not an enforceable right". Yes, it is not enforceable but it is fundamental for the good governance of the State. I also informed the Chief Justice that Article 51-A has been introduced in our Constitution providing for fundamental duties and clause (g) makes it a duty of every citizen to protect the environment. I asked the Chief Justice: "What would you do, if a citizen comes to you and says that the State is giving licences to deforest and destroy the environment? But I am under a duty to protect the environment and ecology and since as a Chief Justice and a citizen of the country, you are also under a duty to do so, what will you do?" He replied: "Of course, act to protect the environment." I said, I hope you have got the answer to your question.
But having said all this, we must address ourselves and ask what is it that we are lacking, particularly, in the justice delivery system? The greatest threat today is because of the lopsidedness of the criminal justice delivery system. Large-scale acquittals are eroding the confidence of the common man, in the justice delivery system. Acquittals to the extent of 93% are alarming. The common man, who finds a criminal going scot-free, is not interested to know why he is going scot-free. What he knows is that it is the courts which have let him off. So the impression he gathers is that either the courts and the investigating officers have got mixed up with the criminals, or that the courts are too lenient as not to bother about the crime situation. He has justification to think along those lines. When a criminal goes unpunished, it is not only the victim of the crime who suffers but the society at large also suffers. There are various causes for large-scale acquittals. But the primary ones are non-scientific investigations and delayed trials. Let us not beat about the bush. We are living in a materialistic society. What happens with the delay in the trial of cases? The witness either becomes not available or is otherwise bought over and is not willing to speak the truth in court. It is my experience that in the first four to six weeks or two months during investigation of a case, it is the investigating officer who is on top of the case and the criminal is trying to run but when delay occurs, the investigating officer is on the run, not the criminal!! I do not say that what is done by the investigating officer is surely out of ill motive. No. It was pointed out by previous speakers that there was shortage of police personnel and non-separation of the police personnel investigating the cases from those maintaining law and order was adding to the problem. These are matters which require serious thought and consideration. His Excellency the Governor mentioned that the State has taken some steps and is in the process of reorganizing the police force. I hope while doing so, the State will keep in mind various suggestions made here to streamline the criminal justice delivery system. The progress of society depends upon the quality of justice it gets and if the criminals have a field day, the society can never be protected.
So far as the Subordinate Judiciary is concerned, I have only to remind you what a Greek philosopher said about the requirements of a great Judge. A Judge shall act courteously, hear patiently, consider wisely and decide impartially. So far as the first three of these qualities are concerned, "act courteously", "hear patiently" and "consider wisely" - these are attributes which are essential for any Judicial Officer. We know courtesy begets courtesy. A Judicial Officer expects the Bar to be most respectful to him, but on his own, he thinks he can do what he wants to do. Where is the courtesy? If he becomes impatient while hearing arguments, who suffers? The cause of justice - that invisible litigant. There must be mutual respect and courtesy between the Bar and the Bench. The Subordinate Judiciary is the backbone of the judicial system. The litigant comes into contact with the Subordinate Judiciary essentially. In some cases, it may also be in the High Court, but very, very rarely, in the Supreme Court. Therefore, the behaviour of the Subordinate Judiciary is the yardstick by which a common man would judge how the Judiciary in the country is functioning. Therefore, a great responsibility lies on the Subordinate Judiciary. Great responsibility also lies on the High Court in selecting right officers to manage the Subordinate Judiciary. It is not merely filling of the vacancies but filling of the vacancies by right persons on considerations of merit and suitability alone.
So far as the fourth quality is concerned i.e. to decide impartially, there cannot be any compromise with it in any sphere. There is no such thing that a Judge is nearly honest - either he is honest or he is not and if he is not, he has no business to be where he is.
The inspection by the High Court Judges of the subordinate courts must be objective. They must consider all factors when giving their remarks - otherwise giving a goody-goody report - everyone is good - A+ A+ is no use because when it comes to selecting a High Court Judge, you will go by the record and even if he is "no good", you will be helpless. We are responsible for this because we are not true to ourselves. Are we not under an oath bound to decide matters without fear or favour, without any ill will, without any malice? We must be true to that oath.
For recruitment whether to the Subordinate Judiciary or the High Courts directly, the raw material is a law graduate. He is the raw material both for the Bar and the Bench because it is from the Bar that they go to the Bench - to whatever level. Unfortunately, the status of legal education is much to be desired. When Dr Radhakrishnan lamented in the late 40s about the ill state of the health of legal education in the country, Chairman, Law Commission, Setalvad found that Dr Radhakrishnan's lament even 17 years later was well justified. We have made some experiments by having National Law Schools with five years' course at Bangalore, Calcutta, Bhopal, Hyderabad and one is now coming up in Jodhpur. Law is a profession and we should not reduce it to the status of business. Since it is a profession, it must be accorded with the same professional responsibility as is available to other professions and, therefore, it becomes essential to make provision for good legal education. Five years' integrated course, which should be a professional degree so that those who come to the Bar are well equipped, is most desirable. The quality of the Bar will reflect the quality of the Bench. I hope, the State of Jharkhand will take effective steps to see that not only the five years' course is introduced, but also to model that institute - that faculty - that college - that university on the same pattern as National Law Schools in the five places that I have mentioned because the reports which come from Harvard about the quality of students who have passed out from the National Law School at Bangalore are flattering. They say, these boys compare very well with our brightest students. We have the talent, we have the will to work, we need an opportunity. The State must provide that opportunity.
What is the direction that we are going in for - what I started with, our direction should be to provide unpolluted, inexpensive and speedy justice to the common man - the consumer of justice. He is not interested in your excuses, he is not interested in your faults - shortcomings or other qualities. He wants justice, pure and simple. Give it to him.
- Delhi Laws Act (1912), Re, AIR 1951 SC 332
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- 1975 Supp SCC 1
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