President Supreme Court Bar Association
on Law Day, the 26th November, 1996
by R.K. Jain
Cite as : (1997) 2 SCC (Jour) 12
Hon'ble the Chief Justice of India Justice A.M. Ahmadi, Hon'ble Judges of this Court, Hon'ble Minister of State for Law, Justice and Company Affairs Shri Ramakant D. Khalap, Hon'ble the Chief Justice of Delhi High Court, Hon'ble Judges of the Delhi High Court, Learned Attorney General and Members of the Bar,
We have gathered here this afternoon on the occasion of the Law Day to affirm our faith in, and allegiance to the Rule of Law. This is an occasion when we should take stock of the problems and challenges which our legal system is facing today and also the progress it has made so far.
In the recent past there has been a concerted effort by a section of the people to tarnish the "image" of the Judiciary, but fortunately for all of us the system is so strong and the faith of the people in the Judiciary so deep that despite their best efforts they have not been able to make any dent in the system. At this juncture when the faith of the people in the political institution and bureaucracy is at its lowest ebb any attempt to shake the confidence of the people in the Judiciary, the only institution in which people have unflinching faith today, should be thwarted at the outset. If the faith of the people in this great institution is shaken then time is not far off when people might take to the streets and the country might have to face a situation of complete disintegration like that of USSR. It is high time that a stern warning is sent to those who are trying their best to destroy the system, that they will be dealt with a strong hand and Indian citizenry will not remain a silent spectator to their nefarious designs.
There has been a lot of criticism of the Judiciary by vested interests that it is indulging in Judicial Activism. Nobody can dispute the proposition that the three organs of the State and other institutions under the Constitution must remain within their respective domain and must function harmoniously. However, it would be naive to even suggest that Judiciary as a whole has overstepped its limit. Of course there may be an aberration here and there but the entire judiciary cannot be said to have transgressed boundaries. However, we should not forget that while advancing a viewpoint, the Judiciary has also to keep in mind its impact on National Economy and Growth.
I must also caution against the prevalent trend of making broad and sweeping generalisations one way or the other against politicians, bureaucrats, legislators and judges. Every institution may have some bad elements but to paint the whole institution as bad would be obviously looking at the institution through coloured glasses.
The Bar reiterates its commitment for an Independent Judiciary. The judiciary must be independent in financial matters also. It should have complete financial autonomy. More than the Bar, the judiciary itself must assert for financial autonomy. Unless that is done, the executive is not going to yield easily to this demand since it suits the executive that the judiciary remains dependent on it in financial matters at least. A section of the judiciary feels that the Judges should not get involved in taking upon themselves matters relating to finance, but I feel that it would be a short-sighted view and would not be in the larger interest of the judiciary. Even the audit of the accounts of the judiciary should not be done by the authorities outside the judiciary. A Committee headed by the Chief Justice of India, senior Judges of this Court and senior Chief Justices of the High Courts should be formed to oversee all financial matters. The Judiciary which has been entrusted with the task of deciding the fate of the nation in important matters, can certainly be entrusted with the matters relating to its own finances. The sooner it is done, the better it will be for the system.
The delays in the appointment of Judges is not in public interest. Since the date of retirement of every Judge is known a panel of individuals should be kept ready and the seniormost Judge from this panel should automatically take over as soon as a Judge retires. Alternatively, till a new Judge is appointed, the retiring Judge should continue as ad hoc Judge so that the work of the Court does not suffer.
We had requested the Chief Justice of India that the members of the Supreme Court Bar should also be considered for judicial appointments to the High Courts and the Supreme Court. I am glad to inform you that the Hon'ble Chief Justice, placed the said request before the Chief Justices of the High Courts in the Chief Justices' conference held recently. I understand that it is being considered favourably by all concerned. The zone of consideration for appointment to the higher judiciary must be widened, and the best talents in the country as a whole must be searched. There are some lawyers who are practising in the district courts and are brilliant and dedicated to the values and philosophy of the Constitution but due to circumstances beyond their control could not start practice either in the High Court or the Supreme Court. By some process all those persons who are eligible and deserving must be considered for appointment to the higher judiciary.
There is an urgent need to have an All India Judicial Service so that best available talents are available for the lower judiciary. What should be the modalities, how it should be done, who should conduct the examinations, etc. are all matters which require deep thinking.
Legal education has to be toned up. An effort in that direction was made by premier educational institutions of law but the experience has not been successful in the sense that the students of these institutions are going to the corporate law firms. The Constitution enshrines a different role for the Bar. Not just helping in dispute-resolution between two parties, companies including multinational ones. It has to be borne in mind that the legal profession is the only profession which finds mention in the Constitution and it puts an onerous duty on the Bar to oversee that the Constitution functions and the judicial system operates with full vigour. If the lawyers have to discharge their obligations and play their role enshrined in the Constitution they will have to combine the chamber practice with the constitutional commitment and discharge their obligations to the society. It has to be a combination of both. If the bright people from premier institutions of our country go only for corporate law or individual dispute resolution it would be a sad day and it will defeat the purpose for which these institutions were established. The lawyers with social commitment and the lawyers with commitment to the Constitution cannot ignore this disturbing trend.
I must thank the Chief Justice of India for the keen interest taken by him in the construction of lawyers' chambers for the members of the Supreme Court Bar. We hope to get the possession of the chambers in a couple of months. The Chief Justice of India is not only the Head of the Indian Judiciary but also the guardian of the legal fraternity. He is expected to look after the welfare of entire judicial system. The interest which he has taken in chambers' construction for the members of the Supreme Court Bar, I would request him to take the same interest for the construction of chambers for the lawyers practising in the High Courts and District Courts.
The difficulties which lawyers are facing today need immediate attention by the State to enable the Bar the fulfil its true role of establishing the Rule of Law as enshrined in our Constitution. Immediate provisions for lawyers' chambers, financial assistance for purchase of books, typewriters and office space is absolutely necessary to enable the grassroot lawyers to fulfil the aspirations of the people of this country. When the State helps the lawyers, it is only helping the public interest and the Rule of Law. The State must provide every Bar Association in the country with a telephone connection, FAX machine and a computer terminal. The State should also provide a proper library for the smooth functioning of the Bar.
The time has come when the lawyers must seize once again the political initiative for establishing the Rule of Law in the perspective perceived by Founding Fathers of our Constitution. It necessitates emergence of genuine leadership in every Bar Association in the country so that the problems of the majority can be dealt with by these Associations instead of such Associations becoming the tool for a handful of lawyers to project a purely commercial image in the public eye.