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Law day
(Address of Shri M.N. Krishnamani, President, SCBA)
Cite as : (2004) 1 SCC (Jour) 1
My Lord the Chief Justice of India, Hon’ble Judges, Hon’ble Minister for Law, Justice and Company Affairs, Shri Arun Jaitley, Hon’ble Minister of State for Law, Shri P.C. Thomas, Vice-President of the Supreme Court Bar, Shri Suri, Secretary of the Supreme Court Bar, Ms Priya, and my dearest Sisters and Brothers
Why Law Day?
Before 1979, we were not celebrating “Law Day”. It first occurred to the Supreme Court Bar Association in 1979, under the dynamic leadership of
Dr L.M. Singhvi, to select 26th November to celebrate the same as “Law Day”. November 26, 1949 was the day on which the people of India gave to themselves the unique document to govern their national life i.e. the Constitution of India. This document was beautifully designed to make this country a Democratic Republic to be governed by Rule of Law and to keep it as one huge nation with its wonderful and matchless unity in diversity.
Why should we commemorate this day and celebrate it as Law Day? My predecessor Dr Singhvi spelt out the main purposes of celebrating “Law Day” in the following terms:
1. To review the state of law and administration of justice.
2. To suggest ways and means to improve our legal and judicial system.
3. To strengthen the Bar and the Bench relationship.
4. To strengthen the independence of the judiciary.
5. To strengthen the freedom of the legal profession.
6. To make the legal and judicial system an effective instrument to serve the people.
7. To maintain and augment public confidence in our legal and judicial system.
Rule of Law Day
The aforesaid sevenfold objects of celebrating “Law Day” converge on one single objective in final analysis viz.: We want to be a cohesive democracy governed by Rule of Law. In fact, true democracy and the Rule of Law always go together. It is the rule of law which guards a democratic polity. This aspect of the purpose of celebrating Law Day was indicated by Hon’ble Mr Justice P.N. Bhagwati while delivering his “Law Day” address on 26th November, 1985 by saying:
“It is therefore in the fitness of things that on the day on which the Constitution was adopted and enacted we should wish to emphasize and highlight the fundamental role of law in society and remind ourselves of the sublime purpose which law is intended to serve in a Republic governed by Rule of Law.”
It is thus clear from the words of these two illustrious sons of India that the real purpose of celebrating Law Day is to rededicate ourselves to the following cardinal principles which form the solid foundation on which this grand constitutional edifice is erected:
I. Rule of law.
II. Independence of the judiciary.
III. Independence of the legal profession.
These three principles are intimately interconnected. The main purpose of an independent judiciary and an independent Bar is only to ensure that there is a Rule of Law. The main aim of celebrating Law Day is to ensure and to dedicate ourselves to the Rule of Law. For all these reasons, when we say “Law Day”, we really mean: Rule of Law Day!
Main Issues
There are innumerable issues which have to be pondered over in the context of improving the present justice-delivery system and augmenting the public confidence in that system. However, I would be dealing with four main issues pertaining to public confidence in the present system. The confidence of the people in the legal system and in the justice-delivery system is an essential prerequisite for the very survival of democracy. This aspect is adequately taken care of by the judiciary in India. This great institution, our Supreme Court, is primarily responsible for the smooth functioning of democracy in our country. The other day, when our Law Minister spoke in these very lawns, he specifically mentioned that the former Prime Minister of Pakistan, Smt Benazir Bhutto was once asked as to what was the main reason for the successful functioning of democracy in India. Her clear answer was:
“It is the effective functioning of the Indian Supreme Court, the Indian judiciary which is the main reason for the successful survival of democracy in India.”
Yes! She is 100% correct in her understanding. It is heartening to note that the British who ruled us for over a century, are now looking to our country and are attempting to follow our judicial system.
Still, there are certain problems which require the attention of everyone. In my assessment, even these problems are not very serious. They could be easily resolved if we bestow our attention to the root causes for them and take certain measures to tackle them.
I. Problem of huge backlog
In 1985, Hon’ble Mr Justice P.N. Bhagwati, in his Law Day address referring to the problem of arrears of cases virtually lamented openly by saying:
“The judicial system in the country is almost on the verge of collapse.”
Again in 1986, with unabated agony he declared:
“Even today, the judicial system is creaking under the weight of arrears.”
In 1985, the total number of cases pending in the Supreme Court was 1,66,319. In 1986, thanks to the hue and cry raised by Justice Bhagwati, it was brought down to 1,48,319. In 1992, it was further brought down to 1,04,936. This further came down to 58,794 in 1994 and to 37,168 in 1996. By 1997, it came down to 26,673 cases. Now, compared to the population of India and its vastness, one feels relieved of the problem of arrears in the Supreme Court. If the awareness created in 1985 and certain marginal but effective measures taken by the Supreme Court thereafter, could bring down the arrears so steeply, how could this problem be considered as insurmountable at the level of High Courts and the subordinate courts?
Though Justice Bhagwati declared in 1985 that the judicial system in India was on the verge of collapse, in fact, it did not collapse in the last 18 years! We found it functioning on the other hand, more effectively. In fact, far from collapsing, the judiciary has proved to be the only effective organ of the State on account of which alone the Indian democracy is subsisting today and in fact it is thriving as the largest and the longest democracy in the world. Shri Fali Nariman’s words in this context as quoted by the Lord Chief Justice of England and Wales in his Law Day address of 1999 are very significant. He said:
“I believe that the judges of the nineties and the judges of today are somehow more important than the judges of yesteryears simply because they have been called upon to discharge and have readily assumed far greater responsibilities than their predecessors ever did. Over recent years judging is no longer what it used to be earlier. Judges have now a dominant role in society — and because of this they are more often criticised for what they do and what they say — and yet today, the highest judiciary is held in highest public esteem. This may sound paradoxical, but it is not. The public turns to the judiciary, and ultimately to the highest judiciary, more and more for the resolution of its problems — more than it ever did in the past.”
Growing awareness
Normally the problem of huge arrears is attributed to the low judgespopulation ratio which is hardly 8:1 million in India, whereas in Western countries it is 50:1 million. The other minor reasons suggested for delay in courts are: lawyers taking adjournments, some judges in lower courts being slow in disposal rate, courts having long vacations etc. But all these are not the real reasons for the increasing backlog in great proportions. Everyone forgets the main and perhaps the only real reason for the mounting arrears. From 1950 to 1965, the literacy rate was abysmally low. We did not have the electronic media at all. We just had radio and a few newspapers and most of them in English. Even the educated class at IAS level were not properly aware of their constitutional rights. They reconciled to their fate even if injustice was done. But now, what the Supreme Court decides is flashed in the visual media on the same evening. It comes in all languages throughout the country in about 20 channels. Vernacular newspapers have increased in great number. The literacy has considerably improved. With all these, even a driver or a peon is coming up to the Supreme Court in search of justice. Communication and commutation facilities have also contributed to easier access to justice. Therefore it is the growing awareness which has contributed to several lakhs of cases being filed all over the country in different courts. This is the major cause for accumulation of arrears and all other reasons are very minor and in fact flimsy. This increase in arrears on account of growing awareness is really a welcome development indeed and it should not cause worry, though of course, we have to find ways and means to tackle it.
Government as reckless litigant
There is one factor contributing to huge arrears of cases which requires a check. Government is the major litigant either as petitioner or as respondent. Large number of appeals, revisions, writ petitions and other proceedings filed by the Government are dismissed by courts, after years of pendency, characterising them as frivolous and unwarranted. Most of them are rejected with heavy costs. In fact, thousands of special leave petitions and appeals are filed after aweful delay. They are mostly dismissed on the ground of delay alone. They are filed either to harass the respondent or to delay the execution of the lower court’s order or to save the skin of someone in some pivotal position as otherwise he may be taken to task for not filing it. All these are avoidable litigations. In fact, some of these litigations are filed to spend public money on jolly trips and to stay in star hotels at government expense.
If a committee of three members (a retired Judge and two Senior Advocates) is appointed to approve a litigation by the Government that would straight away reduce the arrears and future burden by over 30%. The State Governments and the Central Government should appoint such committees in their own interest also, since huge public money is being wasted. The advice of this committee should be binding on the Government concerned invariably. But, wherever in spite of such advice, the Attorney General, Solicitor General or the Advocate General or the Government Pleader opines, for reasons to be recorded that the Government should go ahead with the litigation or defence, then the said matter should be placed before the court for admission.
In case, the said committee does not decide within one month, then approval could be deemed to have been granted. Further, once this committee is approached, the period during which the matter is pending before this committee could be treated as excludable for limitation purposes.
Fake pendency
There is another aspect which results in huge arrears from purely statistical angle. Most of the legal matters become infructuous after long period of pendency. They are pending only for namesake. They formally come before the court and after spending considerable time, the court ultimately finds that they are not pending in the real sense at all since they are already dead. If a periodical probe is made, that would show that a huge bulk of long-pending matters falls in this category. If, after a matter is pending for over 3 years, the counsel for both the parties are served with a query by the Registry of the court as to whether the matter is still alive or it had become infructuous, then if the petitioner’s counsel says that it has become infructuous, the matter could be closed at the Registry level itself. If there is a dispute as to this, then the court can decide it by posting such matters on every Monday at the end of the Miscellaneous Board. I am sure that in all the courts in India, over 20% of cases will fall in this category and they require summary disposal and would reduce the burden of arrears in a short time.
Parties-in-person
The appearance of parties-in-person has to be discouraged. They take longer time to argue their cases. Courts also out of sympathy and courtesy spend their valuable time on them. Since in every High Court and the Supreme Court, legal aid is made available, the appearance of parties-in-person could be curtailed by appointing amicus curiae for them or by referring them to legal aid.
Every matter should be posted for compromise
At a stage, before framing of issues or even immediately after service of notice or summons, if all civil, labour, service and even criminal cases involving minor offences are posted for settlement before the court, a sizeable number of cases could be easily disposed of quickly, without prolonging them. In the alternative, this task could be entrusted to a committee of a retired judge and a senior lawyer which can sit on Saturdays for this purpose. This would prevent accumulation of cases to a great extent.
Public interest litigations
This is another reason why cases have accumulated and are being delayed. Every public interest litigation takes a long time for its consideration and disposal. The parties involved are also in great number. In fact, public interest litigations create a kind of new awareness even in educated persons. In fact, the court itself voluntarily created this new class of litigation, over a course of period. This invited additional burden is fully justified, since one of the aims of our legal system is to make it subserve the people. Large number of persons sometimes numbering in thousands are benefited by one single public interest litigation. The time spent by the court in a genuine PIL is really well and deservedly spent.
However, one aspect has to be kept in mind. If the PIL filed is not bona fide, heavy costs have to be levied against the petitioner to deter such litigations. Every PIL has to be thoroughly examined at the threshold to find out whether it is bona fide and whether the persons bringing it are bona fide persons. Where the issue brought before the court is a bona fide PIL matter but the person bringing it is not a bona fide person, the court should take suo motu action after excluding the person who brought it to its notice from the picture. But for this precautionary step of examining the bona fides, a genuine PIL deserves to be encouraged in spite of the time consumed by it for two reasons: (i) public interest demands removal of such large-scale injustice complained of; (ii) large number of people may be benefited by a PIL avoiding multiplicity of proceedings.
II. Problem of strike by lawyers
This is another problem which contributes to delay in courts. Nowhere in the world strike by lawyers is ever heard of. People from other countries are amused to hear of strikes by lawyers in India. The Supreme Court Bar Association, being conscious of this position, has gone on strike only on three occasions in the last 54 years! The first occasion was when there was a supersession of Judges of this Hon’ble Court during emergency. The second was a sympathetic strike for one day when the seniormost Judge of the Delhi High Court was sought to be superseded. The third was when lawyers were brutally beaten up by the police during the Code of Civil Procedure Amendment agitation. It was again a token strike for only one day. Of course, in other courts, lawyers have been frequently going on strikes. Several man-hours of the court are wasted adding to arrears. This has to be avoided since such strikes are mostly impulsive and are very often undertaken on very small and trivial issues.
However, to say that under no circumstance the lawyers shall go on strike or for boycott of courts, may not be correct. There may be an extraordinary situation like the one during emergency when supersession of judges took place in a manner undermining the independence of judiciary.
Still, lawyers should avoid strikes as far as possible. When a case relating to strike by lawyers came before the Supreme Court, Hon’ble Mr Justice A.S. Anand, the then Chief Justice put a relevant query which could hardly be answered. He asked:
“Against whom your strike is aimed? All the three sections affected by your strike viz. the court, your client and your own family are innocent and they have not done any harm to you. For someone else doing or not doing something, in order to attract that person’s attention, why target these three innocent sections? The labour union, while going on strike, targets the management which is doing some injustice to it. When government servants go on strike, their target is the Government which is not listening to their grievance. In your case, for the harm done by somebody, you are targeting somebody else by your strike! Is it correct?”
It would be my request to my brothers and sisters practising in other courts in India to resort to some other method to express their protest, whenever occasion demanded, like wearing of black ribbons or white ribbons or by taking out a procession after or before court hours to present a memorandum or representation to the authority concerned.
In fact, it is necessary to ban strikes in any public utility service like Postal Department, Telephone Department, Railways, Banks, Airlines, Transport, Milk Supplies etc. Already frequent strikes have ruined our economy and have caused grave havoc to the people. Either by legislation or by a public interest litigation, such strikes in any institution or organisation dealing with the public has to be totally banned.
III. Problem of distance
In spite of communication and transport facilities, the little man from certain parts of our country is prevented from having access to the Apex Court on account of great distance. The common man in the North-East or in the deep South finds it difficult to approach the Supreme Court. The transport and stay expenses may even force him to suffer injustice in certain circumstances.
We should rethink on the question of having a court of appeal or a Bench of the Supreme Court in four zonal centres viz. Delhi, Calcutta, Bombay and Chennai. I say rethink only because this was thought of some decades back but given up for some reason or the other. The main seat of the Supreme Court with a permanent Constitution Bench to deal with Article 32 and other constitutional issues could continue to be the capital of this country. Alternatively, e-filing and using of internet facility has to be permitted and hearing of certain important matters of poor persons or older persons or persons who can ill-afford huge expenditure and long travels by video conferencing or internet conferencing should be attempted. This could be started on an experimental basis and later popularised so that more and more people have access to justice.
IV. Problem of corruption in judiciary
Though, of all the organs of State, there is least corruption in the judiciary, unfortunately, since some of the Hon’ble Judges of the Supreme Court themselves (after retirement) mentioned openly that there is rampant corruption in the judiciary and since they even gave the figure of corrupt judges as constituting 20% of the total, an impression has been created as though the judiciary itself is corrupt. I do not think that this figure of 20% is based on any research work or statistical verification. This figure was hurled out, at random, based on mere speculation.
After all, judges are human beings. Therefore to expect all 100% of them throughout India to be totally incorruptible under any circumstance, would be illogical. Aberration in regard to a few of them constituting a small fraction is inevitable.
To say that suddenly in the last few years, corruption has cropped up in the judiciary is not correct either. In a publication by Sri Aurobindo Ashram recording the “Talks with Sri Aurobindo”, there is a mention about the judiciary being corrupt even at the High Court level. These talks with Sri Aurobindo were held in 1939! Shri G.B. Pai, a renowned Senior Advocate of this Court told me personally how a District Judge was corrupt in Travancore in the 1940s. A Judge at the district level was issued with a show-cause notice with the allegation that his judgments were vitiated by corruption. The Dewan of Travancore had to take a decision after hearing him. He engaged the young lawyer Shri G.B. Pai. He was asked by Shri Pai to give the real facts so that he could devise the defence of the delinquent Judge. It was a peculiar case of corruption, where the Judge concerned was collecting equal amounts from both the parties. He would prepare two judgments, one in favour of the plaintiff and the other in favour of the defendant. He would place both the judgments in the shrine in his pooja room and would do archana with jasmine flowers over the two judgments closing his eyes! Thereafter, he would count the flowers which had fallen on the judgments separately. On whichever judgment more flowers were found on meticulous count would be declared by him on the next day as his judgment. He asked Mr Pai: “On these facts how can you characterise my judgment as corrupt? I received equal amounts from the plaintiff and the defendant. The judgment was not pronounced based on the amount given. The number of flowers on them determined the judgment to be pronounced and not the money involved. Therefore my judgments were not vitiated by corruption.” Shri Pai narrated this defence of his client frankly and asked for a lenient approach. Sir C.P. Ramaswamy Iyer who had to take a decision as the Dewan of Travancore had a big laugh when he heard this and since he was in a good mood, Mr Pai could persuade him to agree to his client’s voluntary retirement from service instead of being removed after disciplinary action!
There were cases of corruption in the judiciary even in that distant past. Therefore corruption is not a new phenomenon which cropped up in the last few years.
Out of hundreds of judges all over the country, a small number of them (who can be counted on fingers) being corrupt is inevitable. It is very marginal and in a vast country like ours, it cannot be counted as corruption in the judiciary, as such, at all.
I am not saying that even this marginal corruption has to be totally ignored and that the persons guilty of it have to go scot-free. No! Not at all! Corruption has to be detected and the culprits have to be exposed and punished severely. I am not for hushing up this problem at all. If it is hushed up, like an infectious disease, corruption would spread like gangrene all over. It should be exposed and treated. By such exposure and timely action, the system will be purified and then only the really honest judges who constitute the vast majority can live with dignity.
To characterise the system as corrupt when there are only one or two aberrations is wholly unjust and unfair.
A Word of Caution
Judicial activism is the mechanism by which the Supreme Court used to bend the law for the ends of justice. By a new interpretation, Justice P.N. Bhagwati brought out the third dimension of Article 14. By an innovative interpretation, the directive principle of “Equal pay for equal work” was enforced by the Supreme Court by reading this principle into Article 14. Judicial activism is the term used when the court exceeds certain orthodox limits in the larger interests of justice. The Lord Chief Justice of England and Wales came out with a word of caution in his Law Day address in 1999 saying:
“All courts, and particularly all Supreme Courts, have to be mindful of their relationship with the other arms of Government. Modern democratic States, like the solar system, function best if major constellations follow their preordained paths. The Supreme Court of India has been sensitive to these considerations. Thus, when a High Court in effect directed a State to legislate to prevent ragging of college students, the Supreme Court regarded this as no part of the High Court’s business.”
This is the caution given by the Gita also. Lord Krishna says in the Gita:
“Sreyon swadharmo vigunah;
Paradharmaat swanushtitaat
Swabhaava niyatam karma
Kurvannaapnoti kilbhisham”
meaning:
“Better do your own duty even if you slightly err in doing so, than to do another person’s job, even if occasionally that is well done. By sincerely doing your own duty, whatever may be the ultimate result of it, you will not be endangering yourself.”
“Swadharma” is not caste dharma as is wrongly interpreted or understood. “Swadharma” of the Gita has nothing to do with caste or parentage. In fact, according to the Gita, birth or parentage has nothing to do with one’s caste either. “Swadharma” means our duty to others in the field in which we are trained so that a doctor is not allowed to argue a case for another in the Supreme Court or a lawyer is not allowed to conduct an open-heart surgery in AIIMS. One has to do that work which one is qualified and trained to do. The doctrine of “Separation of Powers” is founded on this principle of “Swadharma.”
The warning of the Gita and of the Lord Chief Justice of England and Wales apart, once, the Supreme Court itself issued a writ of mandamus for enactment of Uniform Civil Code and it later realised that this was in transgression of its own assigned powers in the Constitution and gracefully revoked the same.
Still, in my view, though a writ may not lie to enforce a directive principle, and in that sense a positive mandamus cannot be issued for its enforcement, it is not open to the executive or the legislature to go in the reverse direction upon any of the directive principles. There, the Court can certainly interfere and prevent the executive or the legislature going diametrically against the constitutionally set Directive Principles of State policy, though the Court is powerless to enforce any of the directive principles in a positive manner.
Conclusion
The purpose of celebrating Law Day is to create an awareness and to identify and to remove the hurdles in the effective working of the legal and judicial system. Above all, it is our duty to improve the public image of the legal profession and of the judiciary. There is no difficulty about the image of the judiciary as of now. People are immensely satisfied about its effective and purposeful functioning. We have to only maintain this image. But, there is some problem about the image of the legal profession. People have no good impression about lawyers. Though vast majority of them are really wise, honest, frank and reasonable, a small minority of them have ruined the image of the entire legal profession. Lawyers have a very poor image. No one is prepared to accept a lawyer as his tenant. Banks do not trust lawyers even for small loans. In the marriage market too, lawyer is the last item. This wrong impression about lawyers that they are inherently unreasonable persons has to be changed. This cannot be done overnight. It cannot be done by general body resolutions. It has to be done at the individual level by individual transformation. But a simple method is given in a formula prescribed by the ancient texts by saying:
“Paropakararaya punyaya
papam parapeedanam”
meaning:
“It is helping others which is punya;
It is harming others which is sin.”
A still shorter and catchy form of this formula has been given by a divine personage of our own time in the following slogan:
“Help ever; Hurt never;”
If this simple formula is followed by us, the lawyers, in our daily life, we can certainly improve our image. In this too, the role of the elders is very important. Krishna says in the Gita:
“Yadyad aacharathi shrestah
Thatheva ithara janaah
Sa yatpramaanam kurute
Lokasthatu anuvartate”
meaning:
“Whatever the elders do, others try to do
the same; whatever standard the elders set
up, others try to set up the same standard.”
The seniors in the profession by their conduct and behaviour have to set an example to the younger ones. They have to behave like ideal human beings. Let us take a pledge today, it being Law Day that we shall adopt in our daily life the five basic values viz. Sathya (Truth), Dharma (Righteousness), Prema (Love), Shanti (Peace) and Ahimsa (Non-violence) which are the universal values extolled by all the religions of the world and which are eternal values. By doing this alone we can improve our image and improve the image of the legal profession itself. This will automatically improve the very image of the legal and judicial system.
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