|
JUDICIARY AND TRAINING+
by Justice S.B. Sinha++
Cite as : (2004) 7 SCC (J) 39
I am grateful to the Institute of Judicial Training and Research for giving me this opportunity to be amidst you this evening.
First of all, let me congratulate the new recruits to the judicial service who are undergoing training.
Getting through successfully into the judicial service is the aspiration of thousands of young advocates of this country. In fact, a recent survey conducted in Delhi and Bangalore found that the first career preference of law students was the judiciary—49% in Delhi and 45% in Bangalore. So, it cannot be doubted that you belong to a much-sought-after and prestigious service. There is no other service where one is truly independent and where his or her peers can only judge one's conduct. I can well imagine the amount of industry, patience and stern discipline and how many hours of self-denying toil has been put in by you young men and women, who have been able to make it to this service.
Need for continuing education
Many of you must have wondered why you were asked to undergo some training even after having passed the judicial service examination. Surely, you have had your basic routine education in school and professional education in a law college and you have spent some years at the Bar also before taking the judicial service examination. So, why should you have to undergo any training at all? I am sure that by having spent some time in this Academy, you must have now had some indication of, and perhaps also realised, the importance of professional training for the discharge of your duties as judicial officers.
But let me put it in a proper perspective. One of our greatest jurists, Mr Palkivala once described education, in one of his addresses, as the technique of transmitting civilisation. In order that it may transmit civilisation, education has to perform two major functions: it must enlighten the understanding, and it must enrich the character.
The two marks of a truly educated man, whose understanding has been enlightened, are the capacity to think clearly and his intellectual curiosity. If you have imbibed the ability to think clearly, you will adopt an attitude of reserve towards ideologies that are popular and be critical of the nostrums that are fashionable; enabling you to find the truth. Intellectual curiosity would enable you to continue and intensify the process of learning even after you have finished your training.
The second function of education is to enrich the character. What we need today, more than anything else is moral leadership—founded on courage, intellectual integrity and a sense of values. If you have been able to assimilate some of these attributes during the course of your training, only then I shall consider that this Academy has fulfilled its objective of imparting you proper education and the necessary training. You must appreciate that as members of the judicial service, you perform an important duty and belong to one of the important wings of administration. More importantly, in the course of your duties you would be discharging the essential sovereign function of dispensing justice.
This is where character is important. It is easy to get carried away with the importance of your position and to wield power that you never had before. But, you must remember that you are dispensing something divine, that is, justice according to law and reason. The power that you hold is, therefore, limited and circumscribed and not absolute. You cannot exercise power beyond your jurisdiction, and a man of character will be able to determine where his jurisdiction ends and when he begins to wield power that is beyond his jurisdiction. Training at the Academy is intended to guide you to appreciate your limits and thereby help you to build your character.
Attributes of a judge
Every judicial system consists of two components—a framework provided by the law and the judges who work within the system. The effectiveness of a system usually depends, in a substantial measure, on the effectiveness of the men who belong to and operate the system. The judicial system, even if it is perfectly structured, may yet not be an effective justice-delivery system if the persons working as judicial officers and administrative officers discharging judicial functions do not have the requisite operational skill or are not enthused to deliver robust substantial justice. Therefore, the quality of justice depends more on the men who administer the laws than on the laws they administer. It is these men and women who constitute the critical factor in the system, which has been operating for more than a century in this country.
For this reason, many people believe that our justice-delivery system, which has existed for so long is not at fault—they believe that it is the judges who are to be blamed for the ills of the system. Therefore, the judiciary today is at a crossroad. Accountability of judges is being talked about. There is nothing to worry about this and we must remember what Lord Atkin said in Andre Paul Terence Ambard v. Attorney General of Trinidad1 He said: (AIR p. 146)
"Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men."
But there are some people who could unfairly use all the weaponries in their possession on the least provocation. In this, you need to be forewarned and forearmed. The first and foremost attribute that you must inculcate as a judicial officer and a member of the judiciary is the necessity of living such a life and conducting yourselves in such a manner, both inside and outside the court, so as not to provoke the critics. You have to make yourselves totally above criticism. But when there is constructive criticism, it must be accepted without being oversensitive about the issue.
The concept of accountability is connected with the power to govern. A person who is given the authority to govern has certain duties, obligations and functions to be performed. But it is to be mentioned that there have been complaints against the judiciary by the legislators and the executive that the former impedes social development by misappropriating power, which does not belong to it. But this should not unduly bother you, for the Supreme Court said that:
"In the free marketplace of ideas criticisms about the judicial system or judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice." (P.N. Duda v. P. Shiv Shanker2, p. 178, para 9)
Judges play a pivotal part in the administration of justice and further the trial Judge has a greater role to play in the dispensation of justice. Impartiality, honesty, knowledge and sincerity are the basic and inherent qualities which a trial Judge must possess in the discharge of his duty as a judicial officer.
The conduct of every judicial officer should be above reproach. He should be conscientious, studious, comprehensive, courteous, patient, punctual, just, impartial, fearless of public glamour, regardless of public praise and indifferent to private, political or partisan influences; he should administer justice according to law and deal with his appointment as a public trust; he should neither allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
Judges are expected to be impeccable in their dealings. Each case coming before the judge has its own peculiarity and requires a fresh application of mind and skill. A judge has to constantly be a creative artist. His work, therefore, requires constant thinking and display of talent.
In light of the position projected above, the nature of judicial office, and the independence of the judiciary, personal conduct and official conduct of men who preside over this the most important branch of State have to be approached with care and caution. You must remember that judges are not employees of anybody. As members of the judiciary, you exercise the sovereign judicial power of the State. At whatever level they may be, judges represent the State and its authority (See All India Judges' Assn. v. Union of India3)
It is, therefore, essential that the personality of the judge, which in ultimate analysis consists of his equipment, behaviour and attitude, is developed to optimise the efficiency of the justice-delivery system.
I would like to end this aspect of the discussion with sagely advice given by the Greek philosopher Socrates over 2000 years ago:
"Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially."
Administration of justice
Philosophers have long debated and discussed what is justice. But, we need not enter that domain, for we are concerned more with the administration of justice rather than its theoretical aspects.
Democratic polity of India is based on rule of law.
Ours is a vibrant democracy, which not only has a strong and independent judiciary but also integrates with a society that recognises the existence of the rule of law. For the continued existence and sustenance of a truly democratic State, administration of justice should be in the hands of not only competent but also impartial, independent and conscientious persons so that justice is rendered and rule of law is upheld, both of which are imperative for a free society.
We have given ourselves a beautiful Constitution with a high tone. However, it is widely accepted that it is not the letters of the Constitution but the people who manage it, that make it successful. India has been a great country with one of the greatest and oldest civilisations to boast about.
This is not what we say about ourselves; it is the perception of many scholars of foreign origin as well. I will quote Friedrich Muller, a German scholar, in this behalf:
"If I were to look over the whole world to find out the country most richly endowed with all the wealth, power and beauty that nature can bestow—in some parts a very paradise on earth—I should point to India. If I were asked under what sky the human mind has most fully developed some of its choicest gifts, has most deeply pondered on the greatest problems of life, and has found solutions of some of them which well deserve the attention even of those who have studied Plato and Kant—I should point to India. And if I were to ask myself from what literature we, here in Europe, we who have been nurtured almost exclusively on the thoughts of Greeks and Romans, and of one Semitic race, the Jewish, may draw that corrective which is most wanted in order to make our inner life more perfect, more comprehensive, more universal, in fact more truly human, a life, not for this life only, but a transfigured and eternal life—again I should point to India."
However, that is what India was once upon a time. We cannot, with equal authority, claim this to be present-day India.
In our country the judiciary has been entrusted with the task to ensure actualisation of the rights granted to citizens, and also with the task of seeing that the other limbs of the Government function within the constitutionally ordained parameters, especially when dealing with rights of citizens. It is, therefore, imperative that the judicial system is effective and efficient so that the laws conferring rights, and prescribing norms for the functioning of the executive are not rendered ornate phrases, meaningless in content.
It is in this context that we may now observe some emerging trends that our justice-delivery system will face in the near future.
1. Human rights jurisprudence
We have long accepted human rights as one of the founding pillars of our Constitution. Part III of our Constitution incorporates many aspects and principles of the Universal Declaration of Human Rights, 1948 as well as the International Covenant on Civil and Political Rights, 1966 which is an optional protocol to the Universal Declaration. Our judicial system ensures that every citizen shall have an effective remedy for enforcing his rights or freedoms. The legal maxim ubi jus ibi remedium is not an empty promise.
But we need to now focus on a new and developing strain of thought, that is, victimology. Are the victims of crime being adequately rehabilitated and is the criminal justice system adequately punishing the guilty? These are questions that we need to ask ourselves and try to find an answer. It is often said that criminals are ruling the roost with large-scale crimes, including murders, dacoities and white-collar crimes, which have assumed frightening and varied proportions. Women are not safe. There are frequent incidents of rape, molestation, and sexual harassment at workplaces, cases of bride burning and dowry deaths. In fact, the crime clock records 25 violent crimes every hour, including murders, culpable homicides, rapes and kidnappings. There is at least one dowry death every hour. Is our judicial system able to cope with the challenges thrown by hardened criminals?
Our criminal justice-delivery system bears a big question mark. Only 30 to 35 per cent of all criminal cases end in conviction, while 90 to 95 per cent of matters involving heinous offences end in acquittal. In contrast, when the rate of conviction in Japan in 1997 came down from 99 per cent to 96 per cent, a Commission of Inquiry was set up for the purpose of finding out as to whether more false cases are being registered.
Under these circumstances, does the victim of a crime believe that he is ever going to get justice? We need to think seriously about this facet of human rights jurisprudence and it is the judicial officers of today who have to provide the solutions for tomorrow.
2. Delay in disposal of cases
The judicial officers of today have to realise that they are inheriting a legacy of huge arrears. The pendency of cases is huge because earlier methods of disposal were not very effective. Therefore, the judicial officers of today have to look at the problem of case disposal differently and to adopt different alternative methods of dispute resolution. To illustrate the point of arrears, I would like to quote from a report in which it is said:
"Unless a court can start with a reasonably clean slate, improvement of methods is likely to tantalise only. The existence of a mass of arrears takes the heart out of a Presiding Judge.... So long as such arrears exist, there is temptation to which many presiding officers succumb, to hold back the heavier-contested suits and devote attention to the lighter ones. The turnout of decisions in contested suits is thus maintained somewhere near the figure of institution, while the real difficult work is pushed into the background."
This may appear to be a quotation from a report that could have been prepared only yesterday, but in fact it is from the Justice Rankin Report of 1925. The situation does not seem to have changed over the last 75 years and that is why some non-conventional methods have to be adopted to tackle the huge pendency of cases.
Our justice-delivery system is bursting at the seams and may collapse unless immediate remedial measures are adopted not only by the judiciary but also by the legislature and the executive. It has been said by Lord Devlin:
"If our business methods were as antiquated as our legal system, we would have become a bankrupt nation long back."
Different wings of the State are plagued with corruption, nepotism, red tapism. There is hardly any law and order in this society. There are problems of poverty, hunger, malnutrition and food adulteration. Even after more than 57 years of independence we have not been able to provide safe drinking water to the people of this country. It is in this background that the common people of this country, with a hope that the judiciary will remove these ills with which society is suffering, see our courts as a last resort. However, as mentioned above, today even the judiciary is at a crossroad and it is a matter of concern to all of us. People had lost faith in the other two wings of the State much earlier. Unfortunately, the faith of the common man in the judiciary is also being eroded.
We all know that people indisputably have been trying to avoid law courts. Sometimes they are forced to do so as is the case in some of the States where people are forced to take their disputes only to the extra-constitutional courts. Should we, being a part of the society, allow this to happen? When for avenging a murder another murder takes place; when a landlord instead of approaching the court of law, hires the services of goons or where the services of the criminals are hired for settling all types of disputes; can we say that we are living in a civilised society governed by the rule of law? Answer to this question must be rendered in the negative.
We have to take remedial steps to prevent this erosion any further, and one of the major requirements for this is to deliver speedy and inexpensive justice to the common man. I would urge all of you to take this seriously because it is not for nothing that it is said that justice delayed is justice denied—and if justice is denied, there will be a collapse of the rule of law.
Recently in H.P.A. International v. Bhagwandas Fateh Chand Daswani4 the Supreme Court while deciding a matter arising out the Specific Relief Act lamented the delay in disposal of the suit, thus: (SCC p. 550, para 2)
"2. The facts of the present case should be an eye-opener to functionaries in law courts at all levels, that delay more often defeats justice, invariably adds complications to the already complicated issues involved in cases coming before them, and makes their duties more onerous by requiring them to adjust rights and equities arising from delay."
3. Inculcating the scientific temper
New and revolutionary methods and techniques of investigations are being tried out the world over. Are we in the judiciary ready for the advances made in technology? DNA fingerprinting has become commonplace in almost all investigations in Europe and America. This technology has been introduced in investigations in some of the larger cities of India such as Delhi and Bombay. Hyderabad has now established an expert institution of forensic science, which can help DNA fingerprinting of criminals. It is necessary for judicial officers to study the recent trends in investigative skills and to understand some of the problems that would arise with the use of new technology.
Another problematic area that is emerging in the scientific and technological field is that of cyber crimes. Although there are not many such crimes committed in India, it is bound to increase with the use of credit cards becoming a major source of fraud. Very often in cases of this kind the question of jurisdiction arises. In the international sphere, this has become a major issue of debate because crimes are committed in one country and the effect of that is felt in another country. Such problems are bound to arise within the courts in India, although on a smaller scale but then all judicial officers have to be prepared for this.
Tomorrow, new technologies are going to develop and to understand and appreciate these developments, we have to inculcate the scientific temper mandated by our Constitution. Already in India, e-courts at Mysore have started functioning and other courts will soon follow suit. E-filing in the Supreme Court is possible and in some other High Courts it is not a distant dream. Videoconferencing to examine witnesses has now received the approval of the Supreme Court in State of Maharashtra v. Dr. Praful B. Desai5 The use of digital signatures is being actively considered as a substitute for certified copies.
4. Effects of the international scene
We are now in the new economic sphere, which includes information technology, entertainment and communications. Society has become a global village. The face of the corporate sector has completely changed as old economic thoughts and practices have given way to the new economy and rapid economic changes. In this environment and atmosphere, law cannot remain static and it has to cope up with the fast changes especially on economic matters due to liberalisation.
The interpretation of law depends upon the need felt by society at any given point of time. We must take notice of the changes in society and in socio-economic trends. What at one point of time might be possible may not be possible in a changed situation. New areas of law are emerging, for example, intellectual property rights, international law, new interpretative canons and in particular interpretation with reference to the international treaties, declarations and conventions, antitrust law, competition law, commercial arbitration, new arenas of fundamental rights, human rights, environment and convergence, etc.
The new doctrines of interpretation of statutes as, for example, purposive construction or economic interpretation of a statute in the wake of globalisation of economy are gaining importance. Courts are frequently receiving cases where new interpretative jurisprudence is required to be invoked having regard to the international conventions, covenants and protocols. The doctrine of incompatibility in the wake of human rights movement envisaged under various international protocols and conventions as also protection of human rights is gaining momentum.
With the laws being incessantly made, decisions continually rendered, and new theories propounded giving new meanings to old principles, one does need to get out of the court periodically after every few years to lean back in a learning environment and imbibe the developments systematically to think about one's own functioning and also to exchange notes with similarly engaged judges.
And yet, in all this hustle and bustle, traditional disputes must not be overlooked. Speedy resolution of disputes between parties and the involvement of a third-party forum has been found imperative in areas of commercial and family law. The new concept of alternative dispute resolution (ADR) mechanisms have been given a thrust and meaning with the amendment of CPC. This reflects one of the changes being brought about by societal needs for which judicial officers must be prepared. It is worth recalling what Dean Roscoe Pound said:
"Men count more than machinery in the administration of justice."
5. Juvenile justice and justice for the depressed classes
Recent trends show that the weaker sections of society need special protection, whether they are children or women or those belonging to the depressed classes. Often they are victims of crime and are unable to speak out and help the investigating agencies in prosecuting the offender. A recent case at hand is a shocking incident of sexual abuse of young children in a juvenile home. In some cases young children themselves become criminals and then it becomes very difficult to deal with their problems except through special training.
One of the advantages of a Judicial Academy such as this is to impart training to judicial officers in certain areas where expertise was earlier not available or even if it was available, it was not utilised to the fullest extent.
Crime statistics up to 31-12-2002 show that almost 20% of all murders committed in the country are actually committed within the State of U.P. It has to be considered whether young offenders or first-time offenders should be kept in jail along with such a large number of alleged murderers. Prison reforms are also needed because sometimes the nature of the offence has also to be considered. Statistics show that 24% of all crimes against Scheduled Caste persons are reported from Uttar Pradesh. Can such persons be dealt with leniently, even if they are first-time offenders? This requires a delicate balancing.
6. Case management techniques
Today, court management has gained considerable importance because it has been tried and tested in other parts of the world and has been found to be a successful method of controlling the huge backlog of cases. Court management was first introduced in America in 1972 and over the years it has gained so much importance that it has become imperative for all courts to use court management techniques to reduce the caseload. This has now become a science involving not only court management but also case-flow management, which is the study of the time taken in various stages in litigation. It is not difficult in India to adopt the strategy of court management because the giving of adjournments and dates is in the hands of the judge and he can control the time spent at each stage of a case. By practising this method, it is possible to have a case ready for disposal within a specified period of time. Judicial officers now undergoing training will realise the benefits of this if they diligently and vigorously adopt this strategy from the date they start doing judicial work.
It may sometimes be necessary to acquire specialised knowledge for a special post or a special court, or even in respect of a specific skill in performance as a judge or an administrator. It is one thing for ideas and theories to evolve and be tested over the years in the study and the lecture room, and another thing to judge competing theories in the hothouse of the courtroom.
7. Judicial ethics
During this period of your training you must have been stuffed with sermons on moral values; what should be the qualities of a good judge, how a judicial officer should conduct himself inside and outside the court, culture of a judge, dos and don'ts to be practised by a judge et al. Therefore, I am not going to give you any such sermon today. Wherever, in the discharge of your duties you are able to redress a wrong, you should not hesitate in dethroning that wrong. You should be a person with high moral fibre. Character, commitment and capacity should be your hallmark. Simplicity and clarity should be your virtues. You have to achieve excellence in the administration of your duties. You have to restore the faith of people in the system.
We require a new vision accompanied by a concrete strategy to accomplish it. The whole emphasis is to develop a legal system, which does not stop at declaring rights but backs it up with concrete steps to enforce them. If you imbibe the qualities and discharge your duties with sincerity and devotion we can hope to restore credibility into the system. And if every person discharges his duties sincerely we can again put our great nation on the same pedestal as it was.
All the judges owe their allegiance to the Constitution of India which proclaims in the preamble the cherished goals of this fundamental document, namely, to usher in a socialist democratic republic. In this context, it is apt to quote from the Preamble to the Model Code of Judicial Conduct (1990) suggested by the American Bar Association:
"Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the percepts that judges, individually and collectively, must respect and honour the judicial office as a public trust and strive to enhance and maintain confidence in our legal system."
Conclusion
The Supreme Court of India recently in All India Judges' Assn. case3 also laid emphasis on the training to be imparted to the judicial officers. The objective behind the judicial training is to develop the skills, knowledge, work culture and attitude in a judicial officer with a view to improve the quality and quantity of his output.
A person who is selected to perform as a judicial officer discharging judicial functions may not be adequately equipped for this. He may commit errors unless trained before performance. Those errors may cause gross injustice and irretrievable harm to the person concerned which renders the system unjust at least for those who so suffer. Even then the judge can correct only if he is made to realise the mistake before he repeats them. This can be taken care of by forearming him with necessary tools of knowledge, skills and attitudes to induce the desired level of performance. Only by careful scrutiny of all aspects of the judiciary can we hope to detect, deter and defeat potential injustices.
This is done by training. It seeks to identify the gaps in the expertise available with a person for performance of a job and filling these gaps to raise the level of the expertise, to equip him to perform effectively. This training is indispensable at the threshold stage before a person starts performing.
Yet the process of training does not end here.
I close with a quotation from Ehrlich, who said:
"The ultimate guarantee of justice in a court of law is the personality of the judge."
Again I wish you and my country good luck!
---
+ Speech delivered by Hon'ble Mr Justice S.B. Sinha at JTRI, Lucknow on 18th September, 2004.
Return to Text
++ Judge, Supreme Court.
Return to Text
1 AIR 1936 PC 141
Return to Text
2 (1988) 3 SCC 167
Return to Text
3 (1993) 4 SCC 288
Return to Text
4 (2004) 6 SCC 537
Return to Text
5 (2003) 4 SCC 601
|
