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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.

Source©SPEECH 2000

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