Indian Judicial System

I deem it a great privilege to have been asked to preside over the All India Seminar at Lucknow being held under the auspices of Indian Society of Lawyers. The topics which are going to be the subject matter of discussion in the Seminar include the Present State of the Bar and Its Role and whether Indian Judicial system is collapsing. These are matters of great interest to those of us in the world of law. Although they have been the subject of discussion in the past gatherings of men of law, recent events have invested them with a new significance. It is, therefore, in the fitness of things that the Seminar is going to focus its attention on these matters in an effort to renew faith in those vital principles which have provided us inspiration and constituted our sustenance and anchorage in the past.  Coming to a gathering of men of law, one naturally has some feelings of trepidation because of the consciousness that as a group there is hardly any more august, any more discerning and also perhaps any more sceptical. One is also conscious of the great past of the profession, the imprint the men of law have left on the sands of time and their glorious role on occasions as sentinels of cherished values and basic liberties. One also thinks of the distinguished role the members of the Bar played in the emancipation of the country from foreign yoke. If there is indeed one profession which contributed the most in the fight for independence and played the most significant part in bringing about national a wakening and political consciousness, it was the profession of law.  Although the members of the Bar were previously looked upon in India as natural leaders of the community, I am not sure whether, after the dawn of independence, those in the world of law can still claim that primacy in social hierarchy. This is a matter that must engage our serious attention and we must ponder over the causes of the same.  The question we have to ask is why, unlike in the past, the leading members of the Bar, with few exceptions, are generally keeping away from the political arena. Why is it that they are not getting involved in problems which beset the nation with a view to seeking their solution? Another question we have to face is as to whether the quality of our political life has not suffered because of the fact that leading members of the Bar have generally kept themselves aloof from active political life.  The legal profession is designed to be a profession of service — service to the community. The important duty of the profession is to act as the interpreter, guide and faithful servant of the community. Human nature being what it is, disputes are bound to arise amongst men. Man may be a little lower than the angels, he has not yet shed off the brute and the brute within is apt to break loose on occasions. To curb and control that brute, we need the rule of law. We also need the rule of law for the settlement of disputes, which are bound to arise in the affairs of men And in ensuring the rule of law the most significant part is, perhaps, played by the lawyers. I am not sure whether we give due expression to our gratitude to the legal profession for what we owe to it. Judges most often shine with reflected glory. A good many of the judgments which adorn the pages of Law Reports may nodoubtbe the product of judges' own labour, but that is only to an extent, in a great measure they embody and reflect the industry and erudition of the counsel who argued the case and assisted the judges by forensic arguments in preparing those judgments.  I always feel happy to be in the midst of gatherings of men of law and there is always a temptation to indulge in pleasantries but realism demands that we must acknowledge and not remain unaware of the fact that there has been a gradual shrinkage of the image of the courts. One main cause for that has been the tardy judicial process and the long delay that takes place in the disposal of cases with the result that the faith of the ordinary man in the capacity of the courts to dispense prompt justice had been slowly eroding. The long delay in the disposal of cases and the huge arrears which have piled up in courts must be a matter of great concern for allof us in the world of law. Even cases which by their very nature have an element of urgency and call for speedy disposal take considerably long time. I have heard of cases where a landlord living on the second floor had a heart attack and was advised by the doctors to live on the ground floor. The landlord started proceedings for the ejectment of his tenant on the ground floor. The proceedings lingered on for years and before they could end, the landlord died. To take another case, of what avail is a decree of divorce granted in matrimonial case if the parties spend their youth in court proceedings and a decree of divorce is granted only when they reach the middle ageoreven later. The problem of delay and huge arrears stares us all and unless we, the judges and the lawyers, can do something about it by joining our heads together, the whole judicial system would get crushed and collapse under the weight of it.  We are today passing through an age of social questioning. There is all round a spirit of iconoclasm. The Gods we worshipped till yesterday have been slowly and gradually dethroned from the minds of the people. No institution can take for granted the reverence of the community. The community demands from every institution the justification of its existence, the proof of its utility. There was, at one time, an aura about the judicial system. It created a sense of mystique about it in the minds of the people. Under the cover of that, we could hide some of the shortcomings and drawbacks of the system. To some extent, we in the world of law have thus thrived on the ignorance of others. Such a time is now past and no more. The legal institutions and the courts have to earn reverance through the test of truth. Justice is no ta cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary man. We should not brush under the carpet the criticism if true, however unpalatable it may be. Judiciary in no case can escape accountability. It, therefore, becomes essential that we do a bit of heart-searching and indulge in a bit of introspection. If, in the process, we discover drawbacks and infirmities in the administration of justice, enlightened self-interestdemands that we should set the same right. Contempt of court is no answer to genuine criticism of the courts.  It has to be borne in mind that the judicial system is primarily intended to serve the needs of the community. That was the object for which it exists. The judges and the lawyers may be the instruments of the system, the functionaries through whom the system operates, but the real beneficiaries of the system have to be the people, the members of the general public, the aggrieved, the injured, the wronged, the persecuted and the victimised. Let us not while working the system forget its basic purpose, the raison d'etre for its existence. It would be a sad reflection on us all if an impression comes to prevail and gains currency that the system operates mainly for the benefit of its functionaries and the interests of the general public if not ignored altogether, get a low priority.  The high cost of fighting a case is another aspect which must engage the attention of lawyers in a developing society. The feeling is there that the amount required for pursuing a legal remedy or defending a claim is much too exorbitant which most citizens can ill afford to pay, whatever might be the justice of the matter. To get involved in litigation for a good many results is getting steeped in indebtedness. It would not be inappropriate, in the above context, to emphasize that justice is not a commodity to be sold or auctioned to the highest bidder. Although something in the matter would have to be done by the State, the members of the Bar can also play their part in alleviating the situation.  Another, question which should engage our attention is how far the judicial findings of fact accord with the realities of the situation? Judges, of course, have to give their findings upon the evidence adduced in the case. Sometimes witnesses do not tell the truth. On other occasions, persons who could give true version are not willing to come forward and give evidence which might have the effect of antagonising one of the parties. Whatever might be the reason, the result is that judicial finding of fact is sometimes entirely divorced from the realities of the situation. It is one thing if this incongruity between the realities of the situation and the judicial finding of fact is confined to a small number of cases. If, however, the incongruity between the realities of the situation and the judicial finding of fact becomes extensive and widespread, it is bound to shake the confidence of the people in the ability of the courts to find the truth of the matter and thus create a credibility gap for them. Although it is not possible in any judicial system to prevent such incongruities in a marginal number of cases, our efforts should be to ensure that our judicial system functions in such a manner that consistently with a fair procedure, such incongruities are reduced to the minimum. There is a quest for truth in all judicial trials, an end eavour to find as to where the truth lies in the face of conflicting versions given by the opposite sides. It, therefore, becomes essential for the judicial officer to separate the grain from the chaff to arrive at the truth. Every judicial trial is, indeed, a trial of our judicial system. Every incongruity between those realities and the judicial findings is bound to bring down the judicial system in the estimation of the people and undermine their confidence in the capacity of the courts to arrive at the truth.  Another thing which is shaking the confidence of the people in the judicial system is the high incidence of acquittals and the increasing failure of the system to bring major culprits to book. Judges, of course, have to give their verdict on the material on record and no one can and should expect the courts to hold a person guilty unless there be credible evidence to substantiate the charge against him. One major reason for the high percentage of acquittals is the decline in the quality of police investigation and its consequent inability to procure and produce credible evidence as may establish the guilt of the accused. Such decline in its turn has been due to interference by the politicians in the investigation of cases. It is well-known that the greater a person is a goond a or anti-social being the greater is his value and utility at the time of elections. When politicians seek and secure the assistance of anti-social beings at the time of the elections, the latter extend their assistance in the expectation that when those anti-social elements are in trouble at the hands of the law enforcement agencies, the politicians would come to their rescue and take them out of the difficulty. The help rendered by the politicians to the anti-social beings when in difficulty is the quid pro quo for the help given by the anti-social beings at the time of elections. All this naturally makes the task of the police in investigation of crimes extremely difficult. This a part, we find that a good bit of the time of the police force is taken in the security and other arrangements for the VIPs. Demonstrations, bandhs, strikes, hartals and agitations have increasingly become a part of our public life and call for considerable attention of the police force. Investigation of crimes occupies comparatively lower priority in the functioning of the police. The result as such is deteriorationin the quality of investigation and the increasing inability of the police force to adduce credible evidence at the trial. Be that as it may, whatever may be the reason for the high incidence of acquittals, the inevitable effect of that would necessarily be the loss of confidence of the people in the courts to bring the major culprits to book. We have to bear in mind that if the people lose their faith in the judicial system and carry the impression that the judiciary is not able to punish the culprits, the victims and the kinsmen of the victims would resort to extra-legal methods to settle scores with the culprits whose identity is normally known to them. It is plain that such a state of affairs would lead to chaotic and anarchical conditions.  The office of a judge demands that he must give his decision one way or the other. One of the parties in the very nature of things must feel dissatisfied with the decision given by the judge. It is one thing to dislike a decision; it is quite another to attack the judge because of the decision given by him. In the ultimate analysis the greatest asset and the strongest weapon in the armoury of the judiciary is its image as dispenser of even-handed justice. Every effort should be made to preserve that image. There is no office which is so infinitely powerful and at the same time so frightfully defence less as that of a judge. All this underlines the importance of restraint in the criticism of judges. If the denunciation of judges by persons outside the field of law is undesirable, much more objectionable is the tendency betrayed on occasions by some judges of the superior courts — luckily their number is small — to run down the judges whose decisions are the subject-matter of appeal. Use of strong language ill goes together with judicial temperament necessary for dealing with judgments of courts below.  Liberty, Democracy and the Rule of Law are the most important indices of a free and civilised society. They can well be described to be the three faces of the Holy Trinity which presides over the destiny of all free societies. Each one of them gives strength and sustenance to the other. Destroy one of I them and you can take it that the other two would not be able to survive for long. Rule of Law in its turn depends upon the existence of independent courts. It is indeed difficult to visualise a truly democratic state which does not provide for the independence of the judiciary, for it is the presence of an independent judiciary which guarantees rule, of law and ensures that the rights of minorities and those in opposition guaranteed by the Constitution shall not be trampled upon by the majority and those in seats of power. Independence of judiciary can well be described to be the very matrix of the system, the one indispensable condition for the continued existence and survival of liberal democratic institutions and state of rule of law. Without such independence the courts would not enjoy or deserve to enjoy the confidence and faith of the people.  One of the greatest dangers faced by the judiciary is the tendency, raising its ugly head during recent years in some Asian and African countries, of using judicial processes by those in power to harass their political opponents. It is such cases which put a strain on and give an uneasy time to the independence of the judiciary and provide a real test of the judiciary's claim and allegiance to independence. Independence of the judiciary must be protected if we want to maintain the essentials of a decent society governed by the rule of law. It is notest of the independence of judiciary that it can hold the scales even in ordinary run of cases between obscure citizens. The real test of the independence of judiciary arises when times are abnormal, when the atmosphere is surcharged with passion and emotion, when there is a brooding sense of fear, when important personalities get involved and when judicial processes are used by those in power to persecute political opponents under the garb of prosecution. At such times it is not so much the person arraigned as the accused who is on trial, as it is the judiciary which is on trial. Such moments can well prove to be the twilight of the rule of law. It is indeed then that our allegiance to the principle of the independence of the judiciary is put to the real test. Law knows of no finer hour than when it cuts through formal concepts and transitory emotions to come to the rescue of the oppressed citizen.  If our Constitution visualises that judiciary should be kept out of politics, we have also to ensure that politics is kept out of the judiciary. Indeed if there is one branch of the State which must steer clear of political controversies and not get involved in or aligned with any of the political personages and parties in their disputes and struggles, it is the judiciary. That all constitutional interpretations, to repeat what was said in Kesavananda Bharati's case AIR 1973 SC 1461, have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decisions , have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so they cannot allow any political ideology or economic theory which may have caught their fancy to colour the decision. The sobering reflection has always to be there that the Constitution is meant not merely for people of their way of thinking but for people of fundamentally differing views.  I feel perturbed when in the sordid game of political mud-slinging sitting judges allow themselves to be used as instruments to malign one party and support another. Necessarily it would erode the confidence of the people in the judiciary as an institution above political wranglings. We must beware of the charge levelled against the judiciary in some of the Afro-Asian countries of those in power securing stamp of judicial legitimacy for their oppressive treatment of political opponents or as masquerade to cover their own misdeeds.  While resisting inroads into the independence of judiciary, we have also at the same time to ensure that there is no deviation on the part of those donning judicial robes from the high standards of rectitude and allegiance to values which are the proud legacy of the judiciary. The best guarantee for the independence of the judiciary is the impeccable conduct of the judges themselves.  The Bar has an important role to play in protecting the independence of the judiciary and thereby ensuring the rule of law. I have always believed that if there are three prime requisites for the prevalence of the rule of law they are a strong Bar, an independent judiciary and an enlightened public opinion. There could indeed be no greater indication of decay in the rule of law than a docile Bar, a subservient judiciary and a society with choked or coarsened conscience. In order to enable it to discharge its great responsibilities it is essential that the deliberations of the Bar as a body should be marked by sense of discerning objectivity. It is in this context that I want to advert to some disturbing trends which have made themselves manifest of late. Attempts are on occasions made to create division and schism amongst the members of the Bar as a collective body in order to make them subserve the partisan ends of different political parties. Students have already been divided into groups because of infiltration of politicians into the campus of different universities. The, result has been that amongst students we have different groups each affiliated to one or other of the political parties. The division of students into groups has led to indiscipline and marred the functioning of our universities. Likewise, we find that industrial workers have been divided into groups on score of affiliation with different political parties. This has resulted in the formation of rival worker's unions and led to internecine strikes. It has also damaged the interest of the workers and retarded the growth of healthy trade unionism. We have to ensure that this evil does not percolate into the field of legal profession. There can be no doubt that as individuals lawyers belong to that part of the community which is politically most conscious and it is but natural that as individuals some lawyers would play a significant part in the deliberations of the parties to which they belong and take effective steps for the furtherance of the programmes of those parties. All this is perfectly justified and legitimate and no exception can be taken to that. What is, however, disturbing is the  involvement of the associations or organisations of lawyers in the fortunes of political parties and making them pander to the interests of those political parties. The allegiance of the members of the Bar acting as a collective body can only be to the country and the nation, to the Constitution and the laws, and to cherished values like human rights and civil liberties. It is only then that they would be discharging the responsibility which history and tradition has assigned to them. It is only thus that they would hold aloft and keep aglow the torch symbolising the rule of law.  As one who has spent years in the profession and is deeply interested in its welfare and projection of good public image I cannot help voicing my anguish when I find different Bar Associations engaged in a posture of confrontation with each other. Sometimes there is a conflict between High Court Bar Association and District Bar Associations, while at other times there is confrontation between Bar Associations of different regions. While I can understand the strong feelings that some issues may rouse, we have to bear in mind that as men of law we cannot stoop to street level but have to sort out our differences by arguments and persuasion and not by resort to agitations and strikes. We must also realise the plight of people whose cases are pending in courts when members of Bar go on strike for long periods. If the conflicts between the different Bar Associations present an unedifying spectacle much more so are the occasional incidents of confrontation between the members of the Bench and Bar. These have to be avoided at any cost. The judges and the lawyers are the most important participants in the dispensation of justice and it is essential that they must work in coordination and harmony. Court decorum, self discipline and cool temperament are indispensable for the smooth working of the system. Irascibility at individual level should be treated as an aberration and should not mar the general relations between the Bench and Bar. There is an element of vulnerability about the office of a judge. The Bar more than any other body should be ever vigilant to ward off any attack on the judiciary in the same way as the judges must exert their best to see that the legitimate grievances of the Bar are attended to. Conflicts between the Bench and Bar thus looked at would appear to be wholly misconceived and irrational.  Before concluding may I recall the words of Learned Hand :  "Let us look up to the great edifice which our forbears have built and of which we now are the guardians and the craftsmen. Though severally we may perhaps be paltry and inconsequent, for the present it is we who are charged with its maintenance and its growth. Descended to us, in some sort moulded by our hands, passed on to the future with reverence and with pride, we at once its servants and its masters renew our fealty to the law."

Author Name: Hon'ble Justice H R Khanna