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--------------- Print Magazine --------------
  May 2016
  April 2016
Legal Article

Justice Always Needs Courage

By Fali S. Nariman

"Like old clocks, our judicial institutions need to be oiled, wound up and set to true time." (Lord Harry Woolf, Lord Chief Justice of England from 2000 to 2005)

The reach of India's highest court is all-pervasive. The Supreme Court sits in final judgment over the decisions not only of the High Courts in the States (there are 21 High Courts for 28 States and Union territories), but also over all tribunals (Central and State) functioning throughout India: there are literally hundreds of them. And the law declared by the Supreme Court, including its pronouncements on the validity of enacted law, is binding (under the Constitution) on all other courts and authorities in the country. There is virtually no area of legislative or executive activity which is beyond the highest court's scrutiny. Its writ extends to all two million square miles of Indian territory, and over its (now) 1.2 billion inhabitants. Making use of the trappings of modern technology, India's Supreme Court has been performing a stupendous task with distinction.

In the last 10 years, however, our established legal system has become unpopular because of too much law, too little justice, too much rhetoric and too little reform. We need to move on: To do something different, something that we have not done before. Illustratively, I suggest the following:

Curb the Surfeit of Case-law

In a three-tier, precedent-bound system like ours, cases go on far too long; one of the primary reasons is that too much time is spent by lawyers citing case-law. Over the years our law reports are filled with some useful, and many not-so-useful decisions. The Americans had the same problem but the surfeit of judicial opinions in the US is now kept strictly under control by a simple judicial device known as "un-publication of opinions". "Un-publication" means that an opinion (or judgment), because it is restricted to the facts of the case, is (judicially) designated not fit for publication in the official law reports, and when this is put out on the website as an "unpublished" opinion, it cannot be cited in court. This expedient has proved effective: the rate of "unpublished opinions" of federal courts in the US is presently around 80 per cent! To introduce this system in India will require spadework: Hundreds of thousands of judgments will have to be scanned and declared "unpublished"; but it will be worth the effort. It will help reduce the law's interminable delays.

The Supreme Court of India

Stop the current trend of 'tribunalising' the justice system. Most litigants believe that they will get justice only in the established courts (the High Courts and the Supreme Court), and not in tribunals set up by statutes - even when their decisions are overseen by superannuated judges presiding over appellate tribunals. In a vast majority of cases, decisions rendered by these bodies invariably - though tortuously-land up in the High Courts (through writs under Article 226 of the Constitution), and ultimately, in the Supreme Court of India (through that court's plenary jurisdiction under Article 136 of the Constitution), thus contributing in no small measure to the law's proverbial delays.

Costs should follow the event

One outstanding failing in our system of judicial governance is that although mandated by law, costs hardly ever follow the event. The fear of costs is what the courts must instil into the dilatory and speculative litigant including (I would plead) on the litigant who undertakes a PIL (Public Interest Litigation). Projects and programmes devised by popularly elected governments are held up for years in the High Courts (and in the Supreme Court) at the instance of persons who have no direct interest, on some suspicion of corruption or the like-and when at the end of a tortuous judicial process such PILs are ultimately dismissed, the loss in economic terms to the community at large is never compensated.

Stop recommendations for appointment of judges by judges

The present method of selection of members of the higher judiciary by recommendations from judges themselves has outlived its utility. Judges of the High Court and of the Supreme Court can be trusted to decide cases that come before them-but experience has shown that they cannot be trusted to make binding recommendations for appointments to the higher judiciary. In High Courts, overburdened with its dockets, respected and experienced practising members of the Bar need to be appointed judges for two, three or five - year terms without restricting them from setting up practice again in the same court after they demit office. This would make an enormous difference in case disposal rates in the High Courts.

Repeal the Judges (Protection) Act, 1985

This Act had provided for the first time in that year additional protection to judges, viz, that no court shall entertain civil or criminal proceedings against any person who is or was a judge, for any act, thing or word committed, done or spoken when in the course of acting, or purporting to act in the discharge of official or judicial duties. "Honourable Judges" (and believe me, there are many) do not need this additional protection. Besides, the 1985 law has long outlived the good intentions that inspired its enactment; it is now proving to be a shield for the very few wrongdoers who have passed through the system. There is already sufficient protection granted to the independence of sitting judges under the deliberately cumbersome procedure envisaged under the Judges Inquiry Act, 1968. I now believe that the 1968 Act must stay since it makes the ultimate chapter in the removal process of a judge of the higher judiciary extremely difficult, as it should be to preserve the independence of the judges. The current Judicial Standards and Accountability Bill 2010 is a poor substitute for the Judges Inquiry Act, 1968, which it intends to repeal. The Bill has raised more problems that it had intended to solve; it should be dropped or withdrawn.

In the end, reform is not merely about cases and the speed with which they are decided. The judiciary of the 21st century needs to set an example in exemplary self-discipline; discipline in its approach to legal (and more often, political-cum-legal) problems that fall in its lap. There is also need for greater transparency in the lifestyle of the justices, and an abiding tolerance of public criticism. Litigants no longer accept judge's decisions as they did in the past. The mystique of the judiciary (the "awful Majesty of the Law" as it used to be called) is no longer a sufficient protection. The job has become harder. Judges are seen less as the impersonal agents of a system and regarded more as human beings responsible for the failure of a particular losing party in the case! The attack has shifted-from the ball to the player! Hence the need for ethics - and some guidelines from the top (which 'the top' too must scrupulously observe!)

In a country like ours, and in times like these, it is not enough for the judiciary to be independent of the executive and of all other external influences. The judges, because of the high office they hold and the plenitude of powers they exercise, must be seen to have qualities of excellence-both of mind and of heart. Above all, they must be men and women of courage. Nobility and courage in the highest court begets nobility and courage all down the line. In this country the judiciary, because of its prime importance, needs both the biblical exhortation and the biblical warning that follows it: "Ye are the salt of the earth; but if the salt loses its savour wherewith shall it be salted?"

(The author is a distinguished jurist and senior Supreme Court advocate.)

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