THE TRIBUNE NEW YEAR SPECIAL 2011 : YEAR OF RECKONING

JUDICIARY

 Ensure quick justice
Fali S. Nariman
Distinguished jurist and former MP

Photo: Mukesh AggarwalIN the past 10 years (2000 to 2010), our established legal system has become unpopular because of too much law, too little justice, too much rhetoric and too little reform. In the coming decade (2011-2020), we need to move on: to do something different, something that we have not done before. Such as:

  • Taking justice to the people: Benches of the Supreme Court must be established at litigant-convenient locations in the East, North-East, West and South. Two Justices of the Supreme Court could sit for a few weeks every six months and dispose of cases at these locations. Only then would the present image of inaccessibility of the highest court to the vast majority of the people of India get altered.

  • Stopping 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.

  • Appointing respected and experienced members of the Bar practising in over-burdened High Courts to be judges for two, three or five-year periods, 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.

  • The crisis today is the increasing lack of confidence in the present judicial system to deliver speedy, yet effective, justice. Hence, requesting judges, both in the High Courts and in the Supreme Court, to write shorter judgments because the more words there are in the legal firmament, the more words are there about which doubts are likely to be entertained.

  • Repealing the Judges (Protection) Act, 1985 which had provided for the first time in that year additional protection to judges i.e. 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 a few wrong-doers 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 do believe that the 1968 Act must stay as it makes the ultimate chapter in the removal process of a judge of the higher judiciary extremely difficult. 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.

  • The moral imperative: Courts are not merely about cases, nor about enforcing legal rights. They are about hard work — which the public never gets to "see"; above all, courts are about transparency and integrity. The judiciary and the legal profession in the 21st century need to set an example in exemplary self-discipline: discipline in approach, discipline in lifestyle, discipline in thought, word and deed. Once the public becomes convinced of this, we will then need to once again look up to and learn to respect our judges, and honour what they say and do. Judges of the Supreme Court — because of the vast plenitude of power that they exercise — must continue to display noble qualities of head and heart and, above all, of courage. Because nobility and courage in the highest judiciary begets nobility and courage all the way down the line.

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