Nature of Judicial Process*
by Justice D.M. Dharmadhikari**
Cite as : (2002) 6 SCC (Jour) 1
We have accepted democracy as our form of government. Democracy is a Government of the people, by the people and for the people. Democracy is not merely an external set-up. In a democratic faith, power of word or speech has great importance. The greatest thinker and social reformer Vinoba Bhave found in democratic process a spiritual content. He says, when we treat every citizen as a competent voter and every voter has the same power to vote, indirectly we are acting on a fundamental faith that every person has the same human soul and every human soul has the same value. This fundamental faith is the foundation of the democracy. The capacity of a human soul cannot be measured on capacity more or less of the human being. All human souls are endowed with the same capacity. This is the basic faith in Indian philosophy to be found in the Vedant. And, indirectly, this is the basis of democracy. In democracy, therefore, the power of word or speech has greater value than the power of army and money.
In democratic processes of which judicial process is one, it is necessary that issues or controversies should be decided by discussion and exchange of views and not by resorting to the use of the police or the army. The elected bodies in a democracy adopt the process of debate or discussion on public issues of importance for making laws and solving problems of the people. This power of speech and discussion should be nurtured and continued unabated. In this process, resort to the army and the police should be minimum and only in the event of some unavoidable emergency. Unfortunately, the situation is otherwise. If we have accepted non-violent processes as conducive to the functioning of the democracy, gradually we should eliminate the power of arms and weapons. We should not be satisfied with merely outward and formal structure of democracy. To strengthen the democracy, we have to increase the power of words and speech. In other words, this requires increase in power of mutual trust. The judiciary is one organ in which we can find non-violent democratic process in action.
A constitutional democracy is one where the Constitution is supreme and no organ of the Government the legislature, the executive or the judiciary is above the Constitution. All the three organs have to function to achieve the aims of the Constitution and in doing so not to infringe the constitutional rights of the people. When we say that in constitutional democracy, the Constitution is supreme, indirectly we are accepting the supremacy and sovereignty of the people who have taken part in framing the Constitution and accepting the same as the highest law governing themselves. In a constitutional democracy, the judiciary is a touchstone to ascertain the genuineness and the truthfulness of the actions of other organs and authorities. The judiciary when approached confirms whether the actions of other wings of the Government are in accordance with law and the Constitution or not. The judiciary is a body of legal and constitutional experts. They are called upon to decide contentious issues between the parties strictly in accordance with law and the Constitution. It is a neutral force between the Government and the governed. The judiciary has no other power except the power given to them by the people by reposing faith and trust in its independence and impartiality. The people have given the judiciary that responsibility because it is thought that exercise of power has to be controlled so that in the hands of any organ of the State, there should not be destruction of the very values which it intends to promote. The judiciary ensures that the executive is more loyal to the existing Constitution and to the constitutional arrangements. The judiciary, thus, is meant to uphold the constitutional values and protect the citizens against encroachment on their constitutional rights. Sometimes, a tension between the executive and the judiciary comes to the surface but such tensions arising out of each being watchful of encroachment into the province of the other is the best guarantee that the citizens can have against the abuse of power.
In constitutional democracy, one has never to forget that all power, in fact, belongs to the people. It is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order. A sceptical and ever-watchful public opinion is the best guarantee of the quality of our democratic processes. The importance of the judiciary is that it maintains the Constitution. It is unelected and therefore, has allegiance only to law and the Constitution and not to any section of the society, community, region, relationship, sect, philosophy, thought or opinion.
Expectation of the common man and role of Judges
In this judicial process, in a constitutional democracy, the Judges have a great responsibility and obligation towards the people. Being a Judge is a difficult and responsible job making intellectual and moral demands unlike most others. The Judges are the unelected elite of professional experts. They exercise the authority of the State in public, in issues of intense importance of the parties and often to the community at large. They decide these issues according to law, it is not the same thing as their personal preferences or current public opinion. Indeed, they have to set public opinion aside and when the case requires, protect minorities against it. They do not and should not seek popularity. They do their work in a formal environment within a framework of procedure which is designed to secure justice. This sometimes make the Judges vulnerable to charges of being remote and out of touch. It goes with its territories. The judicial branch, therefore, does not represent any sections of the society as do the legislature and the executive. There are great expectations of the common man from the courts.
"A sense of confidence in the courts is essential to maintain a fabric of order and liberty for a free people. Three things would destroy that confidence and do incalculable damage to the society; that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who had long been exploited in the small transactions of daily life come to believe that courts cannot vindicate their legal rights against fraud and overreaching; that people come to believe that the law in the larger sense cannot fulfil its primary function to protect them and their families in their homes, at their work and on the public streets."1
It is not the bare fact of physical injury or loss of property that arouses a sense of injustice in a man - it is the feeling that he has been wronged by another whom we cannot challenge or to whom he is forced to submit. It is the affront to his dignity which, if it is left unrelieved will lead to disorder and if others like him are similarly wronged, to social unrest. The judicial process which is a part of democratic process, therefore, is the struggle of the small man against the overpowering influence of the big, politically as well as financially. We, therefore, want to create a just order where an official, howsoever highly stationed, will not be able to trample ruthlessly and unjustly upon even the weakest citizen.
The people, therefore, expect from the courts disinterested application of law to the parties before them regardless of their station, occupation and financial or political power. In this judicial process, Judges are the kind of men who do not seriously question the law and its effect because they have to serve the law and not its masters. The function of the judiciary, therefore, is to derive its conclusions from issues before it in accordance with law and with impartiality. The law is thought of as an established body of principles, which prescribes rights and duties. The function of the judiciary as Prof. Jaffery puts it "is the disinterested application of known law". The judiciary, therefore, has to act impartially and impartiality means not merely an absence of personal bias or prejudice in the judging but also the exclusion of irrelevant considerations, even his own political or religious views.
If a lawyer or a person goes to the Bench with political, religious or spiritual views then unless he is constantly on the watch they will colour his judicial work. This is a task which requires supreme intellectual honesty, a complete absence of "lie in the soul" and it is the first duty of a Judge. The social services that the Judges render to the community is the removal of a sense of injustice. To perform this service, the essential quality which a Judge needs is impartiality and next after that appearance of impartiality. An individual litigant expects to be heard fairly and fully to receive justice. Essentially, its viewing rests on his essential neutral position. On this view, the Judge is not to take into account any consequences which might flow from his judgments or decisions which are wider than the direct interest of the parties. He must act like a political, economic and social recluse who has no interest in the world outside his court where he comes to judgment. This traditional role of the judiciary is to uphold the law. A constitutional court is expected to discharge constitutional duty to enforce the provisions of the Constitution. In a constitutional democracy, the judiciary is an essential part of the Government and a third source of power. Its function is not merely restricted to deciding impartially the disputes before them in accordance with law. Its more important function may be described as "underpinning the stability of constitutional system and protect it from attacks by resisting attempts to change it". Its principal function is to support the democratic Government as an institution established by law. The virtue of our judicial system is that first to last, Judges are exposed to the parties. Parties do not read the judgment. They see and hear it being made and given. This is why impartiality and the appearance of it are supreme judicial virtues. The disinterested application of laws calls for many virtues in the Judges such as balance, patience, courtesy and detachment which leaves little room for the enthusiasm of the social reformer. This is another way of saying that the Judge must decide each case largely according to its particular merits. Deciding cases are not merely going on from one precedent to another and following it. He is expected to act on his own if possible with no other guide than his own sense of justice.
The people, therefore, look at the Judges as an institution which secures them from comparable disorders within the nation and their value to the community is to be measured by the extent to which they do it and not by the extent to which their judgments and verdicts are pleasing to the critical eye.
When we talk of disinterested application of law by the Judges, we do not mean that Judges should down tools whenever they meet a defect in law. To some extent, in some situation, a Judge has to be an activist but it should be a "disciplined activism" and not "judicial dynamism". This is what is called "discretion" of a Judge. Discretion means that the Judge is on a looser rein and in certain areas alive to find his own way because law leaves certain areas more or less unchartered. A Judge is expected to apply the law on his own if possible with no other guide than his own sense of justice. In interpreting the law if more attention is paid to the apparent object of the statute than to the meticulous examination of the language used, the result sometimes is different. They have sometimes to adopt that meaning of a word in a statute under consideration, which best accords with its object. The written law whether it is derived from statute or from precedent is naturally much less flexible than the statute of policy. It is the gap between the text of law and the policy inspiring it, which leaves room for the Judge and some scope of dynamism. A sense of injustice is the most dreaded of disorders yet invented and all organs of the State have to concern themselves with justice. The public desires order and dislikes law though without law there would be no order. The judicial qualities that the public singles out for praise are common sense or humanity; devotion to the law is less admired than the willingness to strain it. So the Judge cannot openly dispense the law but can stealthily stretch or mould it. It is, however, imperative that the judicial powers and discretion should not be used except in support of consensus law. If the Judges are to do more than decide what the law means, if they are also to speak for it, their voice must be the voice of the community and in constitutional democracy as expressed in the Constitution such voice can never be taken for the voice of the Government, or the voice of the majority.2
In judicial process regulated by the Constitution, sometimes, many issues demand "judicial intervention". All over the world, the objectives of the judiciary have been recognised to be (a) to ensure that all persons are able to live securely under the rule of law; (b) to promote within the proper limits of the judicial functions, the observance and attainment of human rights; and (c) to administer the law impartially among the persons and between persons and the State.
Under the constitutional scheme, it is the duty of the executive to fill the vacuum of the legislature by executive orders because its field is coterminous with that of the legislature and where there is inaction even by the executive for whatever reasons, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.
Judicial interventions are sometimes called not only on the actions of those organs of the Government but also over large corporations and associations whose decision now escapes legal scrutiny but which because of their economic muscle may be unfair or contrary to the public interest. Lord Justice Wrolf suggests that a standard of judicial review doctrines like "unreasonableness", "irrelevant consideration", "natural justice" and so forth should be applied to commercial bodies in the same way as to public authorities.
Public interest litigation
The rise of the welfare State and with it the growth of both the legislative and the administrative branches is the outcome of the working of the Constitution. When the State takes up welfare activities, there is mass production, mass distribution and mass consumption. This results in affecting all sections of the society. In this process, social relationships, behaviours, feelings and conflicts arise because of the growing complexity of modern societies governed by the Constitution. Situations, in which a single human action can affect a number of people, are increasingly frequent. As a consequence, that traditional structure of litigation in court a mere two-party affair has become untenable. Damages caused by polluting industries by discharging of waste, erection of big dams, false publicity and violation of collective labour agreements are some of the instances which concern masses of consumers, employees and entire communities. People involved in such mass conflicts, violations and damages, try to find effective means of protection not only through political processes but also in courts. These approaches to courts are class actions or public interest litigation which we now find in great number in constitutional courts of India. The problems of public interest litigation are many. Some Judges might adopt a purely negative attitude. In such case, however, they would preclude themselves from having an influence, and from exercising a control, upon conflicts which have become more and more vital in modern society. They would still survive as a 19th century judiciary, respectable perhaps, but irrelevant and obsolete because of an inability to adapt to a radically changed world. The Judges have to grow up with these new demands and become the protectors not only of the traditional individual rights, but also of the new diffuse, collective, and fragmented rights and interests which are so characteristic of our mass civilization. In this case, however, inevitably new procedural powers and responsibilities will fall upon the judiciary for in class litigation the Judge must play an uncommonly active role in the control and supervision of the proceedings. It is, thus, a case of expanded procedural powers. Often class conflicts involve social rights and class conflicts are frequently disputes in which directly or indirectly governmental agencies are involved. Even when governmental agencies are not involved, some class conflicts may involve such private centres of powers as corporations. From the point of view of the affected citizens, litigation against such centres of powers has much the same difficulties and characteristics as litigation against the many powerful arms of the State. Hence the very reasons which demand the growth of a giant third branch to keep under control the expanded legislative and administrative powers, also demand that the judicial branch enter into the arena of class and public interest litigation against non-governmental entities. Like "big government" so also "big business", "big labour" and "big foundation" demand "big litigation" and a "big Judge".3
Lawyers are not interested in social reforms any more than the police or soldiers. Without policemen society would be threatened from within and without soldiers from frontiers. Judges are necessary to society especially in a time of social change, for change in the measure of its beneficence to the many, causes hardship and displacement to the few. It is essential to the stability of society that those who have to suffer change should be able to count on even-handed justice calmly dispensed and not driven forward by the agents of change. It is this even-handedness which is the chief characteristic of the judiciary and it is almost beyond price.
The importance of the judiciary and Judges in constitutional democracy is, therefore, so great. The Judges are not civil servants but they are like civil servants. They see "Governments come like water and go with the wind". "The prestige of the judiciary", as said by Lord Devlin, "is the reputation for stark impartiality to be kept up in appearance as well as, in fact. It is not at the disposal of any Government. It is an asset that belongs to the whole nation."
The role of lawyers
The courts can effectively function only with the able assistance of lawyers. They ensure judicial independence and effective justice delivery system and through it help in the democratic process. The role of lawyers is important as they are directly in contact with the society. In a constitutional democracy, lawyers cannot be termed merely as professionals. They are agencies or instruments through which the citizens can get justice. Their work, therefore, should be totally dedicated to the society and its interest.
During the independence struggle, lawyers in large number sacrificed their lucrative legal practice and jumped into the fray to gain freedom from the British. Many of them entered public life and occupied high public offices to serve the society. Unfortunately, in the last fifty years the role of lawyers has been more of professionals than as instrumentalities to reach justice to the needy. The patriotism that was at its peak amongst lawyers during the independence struggle is required very much in free India when India is still in the making as an efficient democracy.
Law's delay and judicial reforms
Our judicial system is ailing since long and requires intensive treatment in ICU. When foreign Judges came to visit our courts, they were surprised to know that in India the age of a case is always more than the age of the suitor. Sometimes, in civil cases the decree obtained by legal representatives is sought to be executed by their legal representatives and not always with success. This makes our system a subject of great criticism and worry for the people.
We have inherited our judicial system from Britain. It has in the initial period worked well even in free India. In the British pattern the procedural laws have been so meticulously and carefully drafted that it is difficult to improve upon them e.g. the Evidence Act.
With the growth of constitutional rights of the citizens and constitutional obligations of the welfare State, the traditional judicial system now is required to be set in tune with the present demands of social justice. The traditional system is required to be suitably modified and supplemented by new methods and forums. Experience shows that there are not many defects in the judicial system. The fault lies in those who are working the system. The Civil Procedure Code and the Criminal Procedure Code are basic procedural laws which are so much being misused and abused by the lawyers and trial Judges that enormous delay is caused in decision of cases. Recently amendments made to CPC have been brought into force with effect from July 1, 2000 to cut down the period of trial. Time-limits have been prescribed for filing pleadings. Fixed schedules have been prescribed for completing trials. The discretion of the Judge to a large extent has been taken away in granting time and adjournments. This was necessitated because of the recurring misuse of existing provisions. For issuance of notices and service of summons, simpler procedures have been evolved such as handing over notices to the parties for service, permitting use of modern information and communication techniques like fax. Affidavits are allowed in suits and cross-examination is permitted only if desired by the opposite party and with the permission of the court. Recording of evidence is permitted on commissions. These are some of the welcome changes.
The most welcome and notable change is insertion of a new Section 89 which allows the Judge to formulate the terms of settlement and give them to the parties for consideration and if necessary refer to them for arbitration or conciliation or mediation of settlement in Lok Adalat.
All the above changes in the procedural laws would give some result only if the lawyers sincerely use them to achieve the ends of justice and not for the benefit of one or the other party.
Various kinds of litigations coming to courts cannot be effectively dealt with by one uniform procedure. The procedure should differ with the nature of the litigation e.g. contested civil suits can best be decided by our existing courts with the traditional system. Family disputes should go to the Family Court for decision in a much congenial atmosphere with involvement of lady Judges and lady lawyers, if necessary. Service disputes should go to Service Tribunals and taxation cases to Taxation Tribunals. Claim and compensation cases can best be handled in Lok Adalats. With the growth of multinational trade and commerce, traditional civil litigation is ill-suited for quick decision of cases. Such commercial litigation can be referred to Mediation Centres. In foreign countries the forum is known as Alternative Disputes Resolution Mechanism (ADRM). The ADRM system is in many respects different from Lok Adalats. In Lok Adalats parties are brought together to come to agreed terms and settlement. In ADRM forum, many options are available including settlement. The parties exchange views in the forum with the assistance of lawyers and independent mediators who are either retired Judges or independent experts or senior lawyers. In the course of mediation a new arrangement or contract may be reached to satisfy both parties. Sometimes contentious issues are narrowed down for seeking opinion of the court. The parties may also agree to submit themselves to arbitration of an independent arbitrator or they may come to a compromise and seek a decree based thereon.
We had a very useful interaction for opening ADRM forums in Gujarat. One forum with the assistance of the Legal Services Authority was opened in the High Court in the name of Vivad Samadhan Madhyam VISAMA. The lawyers themselves have started a Mediation Centre in the name of Ahmedabad Mediation Centre. In the Gujarat High Court in VISAMA with the assistance of retired High Court Judges some very contested suits of the erstwhile Baroda State were satisfactorily resolved. There are a large number of litigants coming to court who not only want justice but solutions to their problems. For them satisfactory solution to their problem is more important than winning or losing a case. Now with the amendment of CPC it is necessary that each court should have a Mediation Centre to be set up by the lawyers or the Legal Services Authorities.
Lok Adalats are being held mostly for motor accidents claim cases and money suits of the banks. The lawyers should encourage parties to approach Lok Adalats even in contested suits regarding properties and disputes based on contracts. Litigation involving government and corporate bodies are very large in number. We tried the utmost to persuade the Government to participate in Lok Adalats through their inner committees and help in early decision of long-pending land acquisition cases but the response was lukewarm.
24-hour legal aid clinics
Ahmedabad probably is the only city in the whole world where 24-hour legal aid clinics under the Gujarat Legal Services Authority is functioning with complete efficiency. We have experienced its usefulness for earthquake victims, riot victims, women and aged persons. The women's cell in the clinic run by women lawyers and social activist groups has done immense work in providing legal assistance to the needy and distressed women and helped them to save their life and honour. The Ahmedabad experiment can also be followed in other cities and lawyers have to come out in a big way in the service of the community.
High Court backlog Gujarat experience
Work in the High Court is ever-increasing and more than fifty per cent is writ work and criminal appeals. Decentralization of the whole judicial system is now the need of the hour. Why should it be necessary for a person in a remote village to approach the High Court for enforcement of his constitutional and legal rights? Cases in which the subject-matter is worth a writ petition can be filed by the lawyers in the civil courts. All civil and constitutional rights can be enforced by civil courts because powers of the High Court and civil courts in that regard are concurrent. The High Court may be approached and in its discretion take up a case in which the question involved is of legal difficulty and of general importance. Appeals against the judgment of the civil court should be restricted to important questions of law and the last approach to the High Court be allowed only if there is a serious error in the judgment and failure of justice. The concentration of work in the High Court against governmental agencies has to be diffused. In the present system itself it is possible to do so. When we speak of law's delay we have also to consider that the majority of litigation emanates from governmental authorities and corporate bodies. This floods the superior courts. Apart from amending the procedural laws and making them stringent, in each department, Grievance Redressal Cells should be opened headed by an independent officer or Judges. Only those cases which are not resolved may be allowed to come to superior courts or tribunals. In no forum appearance of lawyers should be barred. Under the present system in many forums like Family Courts, Debt Relief Courts and Labour Courts appearance of lawyers is barred. The principle of "natural justice" requires grant of opportunity of hearing to the aggrieved party. The grant of opportunity of hearing will have no meaning if the hearing is not granted to parties through a lawyer engaged by them. The dockets of the High Courts are full and this workload for satisfactory disposal requires use of modern techniques. While I was in Gujarat as Chief Justice, some of the techniques we adopted gave encouraging results (1) classification and mini-classification of cases subjectwise for preparation of rosters for the Judges; (2) best use of manpower by assigning each Judge that category of work in which he is well versed like taxation, service cases, civil cases and criminal cases; (3) lawyers were encouraged to provide synopsis or submissions after arguments are over and supply copies of the rulings; and (4) in the course of hearing, lawyers accepted the suggestion to complete their arguments within fixed time.
In the work of the Registry, to monitor movement of files, more and more use of computers was encouraged and a separate computer cell was opened in the High Court funded by the State with a judicial officer as its head. For improvement of the work of the Registry management experts were involved and a project was given to them to suggest ways and methods for cutting down delay in processing of files for making cases ripe for hearing early.
The weekly work was so arranged as to give priority to old matters. Admission matters were to be taken up only on three days and up to pre-lunch period. On all other days, only final hearing matters were listed. For a few months on all Fridays, all thirty-two Judges were made to sit singly to deal with more than seven-year-old cases and with the understanding with the Bar that no adjournment would be granted except on very strong ground. This Friday Nyay Yagya gave wonderful results and especially junior members of the Bar got the opportunity to participate and their response was overwhelming.
For old criminal cases in subordinate courts Fast Track Courts were set up in which initially the difficulty was availability of space and suitable retired Judges but in a few important districts they could be set up and have started work.
Apart from these different methods, the Government on its own in some of the States has set up Grievance Redressal Cells in their departments. This experiment is worth emulating by other States. In the State of Madhya Pradesh, Nyay Panchayats have been set up to achieve Vivad Viheen Gram. This is the ideology and concept of Gandhi and Vinoba. The disputes in villages should be handled and decided in the village itself and should not, as far as possible, be allowed to go to forums outside the village.
Various experiments of which I have made a mention can succeed only if the lawyers which are instruments for reaching justice to the community take them up seriously and put them into practice; otherwise they will remain only on paper. The lawyers are not merely professionals but they have an obligation towards society because they should not forget that they earn and make a living on social disputes and conflicts.
To avoid delay and difficulty in producing the undertrial prisoners in court, video conferencing was introduced. A demonstration was held. From the court/chamber the Judges could directly talk with the prisoners. The camera was so fitted that we could see whether in the prison from the vicinity anybody is prompting or pressurizing them. In the video conferencing, we could also directly talk to Judges in Hyderabad and to the prisoners lodged in Andhra Pradesh. If video conference cell is introduced, no State will be compelled to call a prisoner lodged in the prison of another State. If there is any mischief found in video conferencing the power of the Judge to call the prisoner is never taken away. A very minor amendment was required in the Criminal Procedure Code on the subject of power of remand of the trial Judge. Such local amendment was readily moved by the State of Gujarat to the Criminal Procedure Code.
In some of the important trials Section 161 CrPC statements can be tape-recorded. The entire scene of the crime can be videographed so that if necessary the trial Judge can hear the witnesses deposing before the police and see the actual scene of the crime. These scientific methods and techniques can be developed subject to the financial capacity of the State. They will definitely add to the efficiency of the court.
Please permit me to close my speech with the appeal made to lawyers by the social philosopher and Gandhian thinker of our family Acharya Dada Dharmadhikari. In his address to the members of the Bangalore Bar Association on 18th April, 1978 he said
"let me in fine appeal to you to elevate the lawyer's vocation into a noble instrument on social change. There are lawyers enough known for their advocacy who can plead the case of their clients with marvellous eloquence. Be it yours to espouse the case of mother India and plead for her fundamental unity. Let it be your proud privilege to guard the rights of those for whom life has become virtually a sentence of rigorous imprisonment. Be it yours to guard their rights and restore them to their sovereign status in democracy. Your role is the role of the sentinels and guardians of the disinherited and the downtrodden. I trust that you will measure up to this noble task".
In the end, let me thank all the office-bearers of the Bar Association and all organizers of this Lecture Series and all of you for giving me this rare opportunity to express my views on a topic which is uppermost in the minds of all associated with the judiciary.
Thanking you all for a patient hearing.
- Chief Justice Burger, from the article "Judges of the New Century" by Sir Thomas Legg (Public Law Spring Edition, 2001)
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