(Sample Material) Gist of Important Articles from IIPA Journal

Topic: Indian Judiciary and Challenges of 21st Century A.S. Anand

Need for Restraint and Caution

Judicial activism and judicial restraint are two sides of the same coin. It is, therefore, essential to remember that judicial restraint in the exercise of its functions is of equal importance for the judiciary, while discharging its judicial obligations under the Constitution. With a view to see that judicial activism does not become ‘judicial adventurism and lead a judge going in pursuit of his own notions of justice and beauty, ignoring the limits of law, the bounds of his jurisdiction and the binding precedents; the courts must act with proper restraint and self-discipline. The courts have to be careful to see that by their over zealousness they do not cause any uncertainty or confusion either through their observations during the hearing of a case or through their written verdicts. If unmindful of the expected restraint, the courts make observations orally or through written decisions, one way or the other, they may consciously or unconsciously cause uncertainty and confusion in the law. The Courts should only create rights where they are certain that the right so created can be vindicated and the order of the Court can be enforced. The danger of the judiciary creating a multiplicity of rights without possibility of adequate enforcement is a real one. It must be guarded against. The judiciary should not become an institution of mere form bereft of substance. There are real limits to what the judicial process should attempt to accomplish and the judiciary should resist the temptation to cross those limits. The decisions of the Courts should be within the zone of juridical legitimacy. The judiciary cannot give decisions that ignore authoritative sources and are inconsistent or incoherent with the larger body of law.

I may, in (his connection, also usefully refer to the observations of Justice V.R. Krishna Iyer. In an article on “Judicial Activism and Administrative Autonomy”, published in a special issue, by the Lal Bahadur Shastri National Academy of Administration, Mussoorie 1997, the learned author said:

.... The Court cannot run the Governrnent nor the Administration indulge in abuse of or non-use of power and get away with it. Even the Legislature has limitations and must comply with the parameter prescribed by the Constitution; and when they are breached, the court steps in to correct. The essence of judicial review-which is a basic feature the Constitution, is a Constitutional fundamental. The radical role of the high bench (and even of the High Courts under Article 226) assigned to the Judiciary Casts on it a great obligation as the sentinel in the qui vive to defend and the values of the Constitution the rights of Indians.

Alarm-Clock Function of Judiciary

The judiciary can act only as an alarm-clock and not as a time-keeper. The Courts can neither take over the functions of the Government nor allow the Administration to get away with its omissions, and commissions. Every judge remains conscious of the limits of his jurisdiction and remembers that his role is to uphold the majesty of the Rule of Law and his power is meant to be harnessed in public interest. There are certain tasks which it is not possible for the judiciary to perform. Complex problems of policy cannot be resolved with the limited data available within the confines of the judicial process. These kinds of problems are incapable of resolution by “judicially manageable standards” and the courts must tread carefully when-confronted by them. We, in the judiciary, must forever remember the well-known saying that. “absolute power corrupts absolutely”. It is, therefore, the duty of the courts to ensure that while exercising their powers, they do not overstep their permissible limits and act within the bounds of the Constitution and the law. The greater the power, the greater is the need for restraint. No civilized system of justice can permit judicial authoritarianism and, therefore, judges at all levels, are expected to be circumspect and self-disciplined in the discharge of their judicial functions.

Preventing Misuse of PIL

With a view to retain legitimacy and its efficacy,’ the potent weapon of PIL, which is for the benefit of the weaker sections of society and those Who, as a class, cannot agitate their legal problems by themselves has to be used carefully so that it may not get blunted by-misuse or overuse. It is necessary and essential that PIL should develop on a consistent and firm path. Care has to be taken to see the PIL essentially remains Public interest litigation and does not become either Political Interest Litigation or Personal Interest. Litigation-or Publicity Interest Litigation or used for Persecution. If that happens, it would be unfortunate. PIL would loose its legitimacy and the credibility of the courts would suffer. Finding the delicate balance between ensuring justice in the society around as and yet maintaining institutional legitimacy is a continuing challenge for the higher judiciary. One can say that the court has maintained that balance remarkably well over the past 50 years.

Accountability and Transparency

It is well known that Rule of Law sustains democracy and it is equally true that to a bold and independent judiciary is assigned the task of maintaining Rule of Law. Impartiality an independence of judiciary depends on high standards of conduct followed by judes. Only if the highest possible standards are adhered to will the faith of the common in the judiciary be maintained.

It is therefore, imperative that the actions of judges to transparent and, constitutionally sound. The judiciary cannot afford to adopt an uncritical attitude towards itself. We judged, at all levels, must make ourselves accountable and ensure that our actions are transparent and are with the parameters set by the Constitution. The judiciary must follow the standard of morality and behaviour which it sets for others and as a matter of fact before laying down standards of behaviour for others the judiciary must democratize that the some standards apply to it and are being followed by it. Constant evaluation of the functioning of the institution needs, therefore, to be encouraged if the high esteem ‘conferred ‘on the judiciary is to be justified.

Impartially as the Greatest Asset

The societal perception of judges as being detached and impartial referees is the greatest strength of the judiciary and every judge must ensure that this perception does not receive a setback on any account. The courts act for the people who have reposed confidence in them and therefore the greatest threat to the independence of judiciary is the erosion of credibility of the judiciary in public mind, for whatever reasons. Lord Denning, who left for his heavenly abode a few weeks ago, six weeks after completing 100 years, once said: “Justice is rooted in confidence, and confidence is destroyed when right minded go away thinking that the Judge is biased.” The import of these observations is that the person who don the robes of judges, should be, as far as practicable, fair, just, unbiased and impartial, while engaged in the administration of Justice.

As Justice Marshall of the United States Supreme Court put it:

We must never forget that the only real source of power that we as judges can tap is the respect of the people.

The source of this respect was beautifully explained by Lord Denning:

They (meaning Judges) will not be diverted from their duty by any extraneous influences; nor by any hope of reward nor by the fear of penalties; nor by flattering praise nor by indignant reproach, It is the sure knowledge of this that gives the people confidence in judges.

If a judge, decides wrongly, out of motives of self-promotion, he is no less corrupt than a judge who decides wrongly out-of motives-of financial gain. In either case, incumbent of the office is not worthy of being a judge. His actions erode the credibility of the institution-in public mind and that is the greatest threat to the independence of judiciary. Eternal vigilance by the judges to guard against such Intent dangers is, therefore; necessary.

Speedy Justice

One of the greatest challenges that stares us in the face as we approach the 21st Century is the failure of judiciary to deliver justice expeditiously, which has brought about a sense of frustration amongst the litigants. Human hope has its limits and waiting endlessly is not possible in the current life style.

When the Judicial administration enters the 21st Century, in not too distant a future, the first thing to be kept in view by all concerned is that the arrears of court cases which have mounted up till now get eradicated at the earliest. This cannot be possible without the full and unstinted cooperation of the members of the Bar and the presiding judges as partners in the great task of administration of justice. The consumer of justice wants unpolluted, expeditious and inexpensive justice. In the absence of it, instead of taking recourse to law, he may be tempted take law in his own hands. This is what the judicial system must guard against to that people do not take recourse to extrajudicial methods to settle scores and seek redress of their grievances. It has been noticed with dismay in recent years that often landlords do not file suits in rent courts but take the help of anti-social elements to throw out the tenants by force and coercion. This is nothing else but resorting to the rule of the jungle. If this tendency proliferates, it would be a sad day for the constitutional democracy to which we are all wedded. The Bar and the Branch, have to together resolve to remedy these ills to preserve people’s faith in the Rule of Law.

Delays

The high regard that people have for the judiciary often turns to dismay when faced with the working of the justice delivery system. The problem of delay on account of arrear bas been a topic of discussion for decades. Many attempts at improvement of the situation have been made but there is no denying the fact that this continues to remain the central challenge facing the Indian judiciary. The lack of speedy dispute resolution system has a direct, impact on the level of lawlessness in our society. A peaceful society is a necessary precondition for any kind of development.

The report of the Arrears Committee 1989-90, highlighted and identified some of the causes, It was opined that unfilled vacancies in the High Courts, largely accounted for the accumulation of cases as loss of man- days was directly proportionate to the accumulation of cases. It is rather unfortunate that in the last 50 years, no scientific study has been undertaken to assess the needs of the judge strength, more particularly in the subordinate judiciary. A proper study is needed to be undertaken to work out proper requirement of the infrastructure and, the number of judges in the country on the basis of the pendency, rate of inflow of legal matters into the courts and the estimated growth of litigation in the future. The ratio of judges per million population in this country is the lowest in the world. However, it must not be forgotten that it is not merely the raising of strength of the judges in the subordinate courts and the High Courts which is the need of the day-it is crucial that the right appointments are made based on merit, suitability, ability and integrity. An unfilled vacancy may not cause that much harm as a wrongly filled vacancy. The difficulty in persuading the leading members of the Bar to accept Judgeship is real and so well known that need not dwell on in any greater detail.

The over-flowing dockets of the Courts all over the country should, however, not be taken as a sign of failure of the system but a sign of faith in the administration of justice by those who are Involved in litigation. Public resort to Court to suppress public mischief is a tribute to the justice delivery system.

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