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."
