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"The Law Day" Address
by Mr R.K. Jain,
President, SCBA
Cite as : (2003) PL WebJour 2
Hon'ble Mr Justice G.B. Pattanaik, the Chief Justice of India, Hon'ble Mr Jana Krishnamurthy, Union Minister of Law, Justice and Company Affairs, Hon'ble Judges of the Supreme Court of India, Hon'ble Mr Ravi Shankar Prasad, Minister of State for Law, learned Attorney-General for India, Hon'ble Judges of the Delhi High Court, distinguished guests and my esteemed colleagues at the Bar.
It is my proud privilege to address the distinguished gathering this afternoon on Law Day. On this day, the people of India adopted the Constitution of India, a document of hope and aspirations for teeming millions. This fundamental law of the land was the result of the hard work of many trained legal minds, who were jurists of distinction and were directly involved in the long and arduous struggle for freedom. Their fight was basically for the rule of law, equality, justice and respect for human dignity. They had felt the pangs of denial of these basic human values. Little wonder that these visionaries had a dream, which was in essence the dream of every Indian that we should have a society which is based on equality, rule of law and justice — economic, social and political to all.
Law Day gives us an opportunity to do introspection and to see how far the hopes, aspirations and expectations of the people have been fulfilled and how far we have been able to progress as a socialist, democratic and secular India as envisaged in our Constitution.
Complete financial autonomy for the judicial system
We can be justly proud of our strong and independent judiciary, but one aspect which needs to be taken care of to further enhance the judicial independence is to provide the judiciary complete financial autonomy.
I have aired my views on this issue at various forums on different occasions particularly in my Law Day speeches right from 1992 onwards. As of now, there is excessive dependence of the judiciary on the executive in financial matters. This definitely interferes in maintaining its independence, so zealously guarded by the founding fathers of our Constitution. The judiciary must be the final arbiter of the needs of the courts and its support services. It must have the last word in the financial matters relating to the judicial system. I am very happy that same thoughts were aired by Dr Anand, former Chief Justice of India and Hon'ble Mr Justice S.P. Bharucha, also former Chief Justice of India. Whatever I have gathered from the newspapers about the present Chief Justice of India, he also shares the same views.
Strikes by advocates
These days much is being said about the lawyers' strike and the blame is being fastened on the lawyers for the same. It must be known to all that the Bar is against strikes. Nobody wants to go on strike. Is a strike in their interest? The answer is a definite "No". If the advocates go on strike, they obviously lose their money. The first thing, which has to be borne in mind, is to go into the causes as to why these strikes take place. It is sad that nobody wants to go into the causes of the strike. Before we condemn the strike, an enquiry should be held to go into the causes and to ascertain as to who was responsible for the same. Strikes are generally due to police excesses on lawyers or on thoughtless legislations which the Government even refuses to have a relook into despite their weaknesses being pointed out. We had strikes in Madras for long and from 7-11-2002, West Bengal is on strike for stamp duty problem. There should be a suitable mechanism to look into the problem faced by the Bar.
Indianisation of the legal system
In my Law Day speech of 26-11-1998, I had spoken about the need of Indianisation of our judicial system completely and shedding the shades of the colonial past. I again repeat my views on this issue. The Indian judicial system is recognized all over the world as a vibrant judicial system. Indian Judges and lawyers are treated with respect for their contribution in the legal field. We were under foreign rule for a long time. This is a historical fact but we would now like it to remain only a part of history. We have our own traditions and conventions. Is it not fair and proper that at least now we should have our own jurisprudence, which should not only govern us but should also act as a beacon light for the entire humanity? It is high time when we should have a complete break from the colonial past. Some of the things though apparently looking innocuous keep haunting us time and again and reminding us of our colonial past. For example, it is difficult to understand the rationale behind our present dress of black coat, black gown and a white collar band. Such a dress is not in consonance with our cultural ethos. At least now after more than half a century of our freedom, we should have our own dress in the courts, which is in tune with our cultural ethos and suits our climatic conditions. By saying so, I mean no disrespect to the present dress but we must have a dress, which we can proudly call as our own. What should be the dress could be decided by the Bar Council and the Bar Associations by deliberating on the issue. I am happy to say that by and large the majority of the members of the Bar support my views on Indianisation of the judicial system.
Appointment of Judges
The Supreme Court Bar is being ignored in the appointment of Judges to the High Courts and the Supreme Court. In the year 1996 I had sent a letter on behalf of the Bar Association to the then Chief Justice of India, Hon'ble Justice A.M. Ahmadi for considering members of the Supreme Court Bar for appointment to the High Courts. That letter was discussed in the All-India Chief Justices' Conference and I understand that all the Chief Justices had agreed that members of the Supreme Court Bar should also be considered for appointment as Judges in the High Courts. But, unfortunately we do not find that happening in substantial measure. Even for the Supreme Court, members of the Bar should be considered and at least 25% of the Judges in the Supreme Court must be drawn from the Bar so that the Court could have the benefit of the vision and expertise of the lawyers who have been practising in this Court. This is common knowledge that members of the Supreme Court Bar who have been appointed either in the High Courts or in the Supreme Court have done extremely well.
Further, Judges in the Supreme Court must be drawn from varying cross-sections of the society and the selection should be broad-based. Sometimes we see that for years together we do not have a Judge from a particular State. This is not correct. There has not been any Judge in the Supreme Court from Rajasthan since the last four years. No Judge from Himachal Pradesh has ever adorned the Bench of this Hon'ble Court. There is no Judge at the moment from Jammu and Kashmir and so on and so forth. I would, on this occasion, request the authorities to see that the nation, as a whole, is represented in the Supreme Court. Representation of different cross-sections of the society in the court is necessary as every section of the society must have faith in the judicial system.
I will also suggest that more openness in the appointment of Judges and consultation with the Bar, in their appointment, is needed because the Bar is vitally interested in the administration of justice. I have been told by some of my senior colleagues that if this is done there will be a spate of complaints against the proposed name. I submit that this is the very purpose why the name should be made public so that the person to be appointed stands the scrutiny of the Bar as well.
The present mode of appointment of Judges needs drastic change. A mechanism will have to be evolved where only the best and most meritorious persons adorn these positions. The system should be such that every member of the Bar gets proper consideration which unfortunately is not possible in the present system. In the Bar comprising about 8 to 9 lakhs of lawyers, it is not possible for the Judges of the Supreme Court or the High Courts to know all eligible lawyers. There should be a system by which all persons who are desirous of being considered for appointment as Supreme Court or High Court Judges must be allowed to give their biodata besides those who are picked up by the Court itself for consideration. The records of all such persons must be evaluated on the basis of defined guidelines and criteria. Such guidelines and criteria must be known to everybody so that persons desirous of becoming Judges may try to mould themselves accordingly. Merely looking to their income tax returns or recommendation by some senior lawyers may not be enough for these appointments. If such a system is evolved then and only then every member of the Bar will get a fair chance to be considered for these important positions.
In any case the aspirants to the appointment for the post of Judges must have aptitude for justice, commitment to the Constitution and service to the society besides a strong character. Certain incidents that have taken place in the recent past in the Karnataka, Rajasthan, Punjab and Haryana High Courts involving certain Judges are most disturbing and they tarnish the fair image of the judiciary. The redeeming feature is that these are only isolated incidents. I have no doubt in my mind that the Chief Justices concerned of the High Courts and the Hon'ble Chief Justice of India will leave no stone unturned to stem the rot by fishing out the persons involved.
Relationship between the Bar and the Bench
It needs no emphasis that the Bar and the Bench are two very important institutions to ensure that the Constitution functions and the rule of law prevails in the country. It will be no exaggeration if I say that both complement each other. Therefore, it is imperative that both enjoy the confidence of each other and maintain a harmonious relationship. Both must come to the rescue of each other whenever their independence is compromised because independence of the Bar is as important as that of the judiciary. Independence of the legal profession is important not for the sake of lawyers but because they serve the fundamental cause of rights of human beings and those of the society. If a lawyer is subjected to undue pressure or inducement of any kind from any quarter, he cannot properly and satisfactorily discharge his profession for and on behalf of the client. I have no doubt in my mind that the Bench fully appreciates the importance of a harmonious relationship between these two limbs of the profession.
The Bar and the Bench are the "wheels of the chariot of justice". Unless both function in harmony, the cause of justice cannot be advanced. The Bar and the Bench both cannot afford to talk in terms of "I and You". Both will have to talk in terms of "We". Then and only then we can say that we can think of providing justice for the teeming millions of the nation. It should be our constant endeavour to see that our relationship is strengthened day in and day out.
Legal Services Authority Act
Now a word about the Legal Services Authority Act, 1987 as amended by the Act of 2002. The Act provides a tribunal comprising three members — two from the executive and one from the judiciary. The majority decision of this Tribunal will be binding on the parties. The Act does not envisage the consent of both the parties for reference of a dispute to the Tribunal. The Act even does not provide for an appeal by the aggrieved party against the verdict of the Tribunal. Such a strange system does not exist anywhere in the world. I must inform you that the pecuniary jurisdiction of this Tribunal is of Rs 10 lakhs to begin with, which presently includes the jurisdiction of the original side of the High Court. The cases which are being handled by the High Court Judges will now go to this Tribunal. Merely because you cannot handle the litigatory workload within the existing framework of the justice delivery system, does not mean that you should provide a dispute resolution mechanism, which is absolutely perverse and obnoxious. Hon'ble Mr Law Minister, you may recall that you were reminded about the pitfalls of this obnoxious Act several times and advised to take remedial action. I do admit that this piece of legislation was passed before you were appointed as Law Minister but that does not mean that your powers are fettered to have a relook into the statute. If the Bar and the entire legal fraternity is opposing such a legislation, that means there is something basically wrong with this legislation.
I have been told that the Bar Council in its meeting on the day before yesterday have given a call for strike on 18-12-2002 to protest against this legislation. I must announce here loud and clear that the Bar does not believe in strikes but if they are forced to do so the blame should not lie at their door. I will urge upon the powers concerned that they must find a suitable substitute for this legislation, which is accepted by the majority as a civilized and workable legislation. I have been informed by some of my senior colleagues who prefer to align themselves with the establishment that the Bar is opposing this legislation because it will hit their belly. I must inform them that they could not be more wrong in their assessment on this score. The Bar is opposing this piece of legislation because such a legislation cannot find any place in a civilized society which is run by the rule of law and that such a legislation cannot advance the cause of justice. I hope that better counsel will prevail and the Government will withdraw this legislation and bring out a suitable alternative disputes resolution mechanism, which will be efficacious and effective.
Commissions
We must give a fresh look to the appointment of retired High Court and Supreme Court Judges to commissions. We request both the executive and the Hon'ble Chief Justice of India, not to recommend one name for more than one commission. Recently, we saw Justice R. Venkataswamy, who is known for his integrity and impartiality by all concerned, coming into unfair criticism by some in Parliament and outside. This situation could have been avoided if his name for the second commission was not recommended particularly when he was already heading a sensitive commission. Imagine the injury that has been caused in the process. It has caused incalculable damage to the institution in general and to the impeccable reputation of the Judge in particular. I have been told that retired Judges who are heading full-time commissions are allowed to act as arbitrators and give opinions. I would request the executive and particularly the Hon'ble the Chief Justice of India to look into the matter and issue proper instructions for the guidance of all. Allowing a Judge to give opinions when he is heading a full-time commission shakes the confidence of the people in the person concerned.
Communal harmony
Our Constitution is seeped in the Gandhian philosophy of non-violence. Our entire Constitution starting from the preamble to the last article is woven in the golden thread of non-violence and tolerance for each other, be it tolerance for various sections of the society or tolerance for all religions. In fact it even teaches tolerance for one's adversary. But, unfortunately, some of the recent happenings in certain parts of our country have shaken the very foundation of the principles of tolerance. It is high time that all of us, the lawyers, judges, executives, politicians and all concerned must ponder over and do their best to ensure that the age-old culture and philosophy of tolerance and non-violence of our society continues to be the basis of democracy.
In the end, I, on my own behalf and on behalf of the Bar, will like to assure the nation that in the cause of nation-building, the lawyers will keep extending their full cooperation to the judiciary, the legislature and the executive alike to ensure that justice — social, economic and political — reaches to one and all in the true spirit as enshrined in the preamble of our great Constitution.
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