Memorial Talk

First Justice Shafiqul Haque memorial talk by Hon’ble Justice Ranjan Gogoi, Judge -Supreme Court of India. ( 28th March’2015, Rabindra Bhawan, Guwahati )

 

The tile of the talk: ” Challenges facing the Indian Judiciary ”

Duration: 45 min

 

It is a matter of great honour to be invited to deliver this oration on this very contemporaneous topic “Challenges facing the Indian Judiciary”.  Let me begin by complimenting the family of Justice Shafiqul Haque in taking up the initiative of carrying forward the legacy of late Justice Haque and keeping his memories alive.  In particular, the decision to create a website which can be accessed by law researchers and academics with their presentations is commendable.

Justice Haque was born in Dibrugarh in the year 1930.  A man of varied interest he attained masters in subjects as wide ranging as Economics and Persian Literature.  He started practicing law in Dibrugarh in 1953.  However, he joined judicial service in the year 1957 and after a successful innings in different grades in the Assam Judicial Service he was appointed a Judge of the Gauhati High Court in the year 1984.  He became the Acting Chief Justice of the Gauhati High Court in the year 1991 and prematurely demitted his office in the year 1992 to join as the Chairman of the Central Administrative Tribunal, North-Eastern Region, a post which he held until the year 1994.

I remember appearing before Justice Haque in the High Court and also in the Central Administrative Tribunal at Gauhati.  Justice Haque was a fair and kind Judge; full of compassion and at the same time a firm holder of discipline.  Though the bulk of his innings as a Judge was spent in trying civil and criminal cases, as a High Court Judge, Justice Haque delivered noteworthy judgments in various other fields, like customary laws of tribal communities in the North-Eastern Region and also in preventive detention law.  His last 3 years of service as a Judge was entirely concentrated in the field of service law and I must say he came out successfully in this specialized branch of law also.

Justice Haque led an active life after his retirement from service.  In 1997 Justice Haque joined as an Associate member of the International Chamber of Commerce (Indian Chapter).  He chaired the Expert Committee which examined the draft Model Police Act which later resulted in the enactment of the present Assam Police Act 2007.  He was associated with a number of charitable institutions and at the time of his death in January 2009 he was actually serving as the full time Chairman of two permanent Commissions in the State of Assam, namely, the Assam Backward Classes Commission and the State Commission for Minorities.  Justice Haque lived a full life sharing the happiness that he radiated with all who came in contact with him.  I remember him fondly and offer my good wishes to his family members and wish them success in their endeavour to keep the memory of Justice Haque alive.

Let me now come to the topic of today’s talk, namely, ‘Challenges facing the Indian Judiciary’.  It is a well chosen topic; focused, relevant and as I have already said highly contemporaneous.  The topic of the day, indeed, is a fitting tribute to the memory of the man in whose name this oration has been organized. I know a fair section of the august audience present here today is from a non-legal background. I will, therefore, do my best to be understood by you and avoid using legal jargons and expressions.

A free and impartial judiciary is a basic feature of the Constitution.  Concomitant with the concept of a free judiciary is an efficient, responsive and result oriented judicial system.  On 24^th of March, 2015, the Delhi Edition of the two Newspapers Hindu and Indian Express carried two editorial columns on a common event.  Of the titles/headings given by the two Newspapers the one in Hindu is more eye-catching.  The title of the editorial column is “disquieting injustice”.  Both the editorial columns goes on to record an incident of 22^nd of May, 1987 when the members of the Provincial Assam Constabulary rounded about 50 persons from Hasimpur, a settlement near Meerut in U.P. and allegedly shot 42 of them before dumping their bodies in the nearby canals.  Nearly 28 years later, a Sessions Court pronounced no one guilty.  The editorial in the Indian Express goes on to recite that it took 9 years to file a charge-sheet in the case and after 15 years the trial was shifted to Delhi.  After 19 years of the incident the first prosecution witness was examined and nearly after 3 decades, the Court found insufficient evidence against the accused.  The newspaper goes on to ask if those 16 did not murder the men from Hasimpur then who did.   The editorial comments have been charitable to the judiciary; the blame is cast on defective investigation.  But to me the implications are obvious.

Let me recite another uncomplimentary fact.  This is in the World Bank Report of 2015 wherein India is ranked as 142 out of 189 countries on the World Bank Index of “Ease of doing business” for the year 2014.   India, in fact, has slipped two ranks from 2013.  The Report cites the large pendency of cases in the Indian courts and non-implementation of judicial reforms as the basic reason for the low index of the Indian Judicial system.  Economies that make resolution of commercial disputes simpler, faster and less expensive and judicial systems that provide for specialized commercial courts or divisions and offers avenues of commercial arbitration have been given precedence.  It is heartening to know that on 25^th March, 2015 the Delhi High Court became the first Court in the country to set up dedicated commercial divisions to hear matters relating to IPR, Arbitration, Insurance, Banking, Taxation and Company cases etc.  The High Court also designated 11 courts of civil judges, one in each of the eleven districts of NCR of Delhi to deal with commercial disputes.

The official figures of pendency of cases in India are something like this.  65,970 cases in the Supreme Court; 44 lakh cases before the 24 High Courts in the country and almost 3 crores cases are pending in the subordinate courts.  The figures as projected are not very accurate. But even the accurate figures are not very complimentary.

A litigant comes to court with the expectation of being told what his rights are under the law.  The sooner we do it the better it is for all concerned.  But there are reasons for judicial delays which need to be noticed and understood not as justifications but for the purpose of addressing the same; to reflect on the necessity of changes so as to make the current Justice Delivery System more result oriented and effective.  I will come to this a little later but let me highlight some other basic facts which would be relevant in this regard.

The Law Commission of India had recommended in the year 1987 that in India the judge population ratio, which was around 10 judges per million population, should be increased to 50 by the year 1992 and to 107 judges to a million persons by the year 2000.  We are still about 14 to a million population in the country, a mere increase of 4 judges since the Law Commission had submitted its Report in the year 1987 which is more than a quarter century back.

Yes, have more judges and courts.  By all means.  But then what about the large number of posts that remain vacant even as on date.  Today, in the 24 High Courts of the country there are almost 265 seats vacant out of a total of 900.  Similarly, against the sanctioned strength of roughly about 19,000 judges in the district level judiciary all over the country more than 4000 posts are lying vacant.  It is estimated that by 2040 the number of cases in the Indian courts would reach a figure of 15 crores (presently 3 crores) requiring about 75,000 courts.  Assuming the State is able to meet the additional financial burden, though I have my serious doubts on this score, are we in a position to find the requisite manpower to man these large number of courts when as on today we are unable even to fill up what appears to be an alarmingly low number of courts that are currently available.  This, to my mind, is the biggest challenge of the Indian judiciary.  A Judge to whom the prince and the pauper equally turns for dispensation of justice must be a man of outstanding ability and merit coupled with the highest level of integrity.  Where do we get this commodity?

We will, therefore, have to tackle the problem with what is available.  The judiciary must adopt methods that would lead to optimum utilization of available manpower and infrastructural resources.

In many jurisdictions across the globe you cannot come to the courts straightaway.  Pre-trial processing of claims of prospective litigants and efforts to iron out and settle claims and counter claims even before coming to Court is an established reality.  Resort to the court system is permissible only in exceptional situations; such situations are judged by the intrinsic merit of the adversarial claims.  Once a matter reaches the court a very strict regime of procedure and dates that permit little flexibility will govern the manner of dealing with the case.  Adjournments are almost unheard of because on any given day a Judge has only that many cases that he can comfortably handle.

Compared to the above what we have in India is a virtual free for all.  Take a civil suit or a criminal complaint.  Anybody can file a case. Once a case is filed, however frivolous it may be, it will be registered and will remain pending for some time and its further continuance will be determined only after adherence to certain procedures that inevitably take time.  Section 89 of the Civil Procedure Code which came about in the year 2002 provides for out of court settlements.  However, the process under Section 89 is only after a case is registered and the matter has advanced to a certain level i.e. settlement of issues.  What happens, therefore, is that deserving cases including commercial disputes which require resolutions with utmost expedition get delayed and at times heavily delayed due to the pressure of frivolous, vexatious and meaningless litigations.  I will give you an example.  After Subroto Roy of Sahara was sent to jail by the Supreme Court, repeated applications were filed for his release along with an application that the judges who had incarcerated Subroto Roy should not deal with the matter anymore. In its order reported in (2014) 8 SCC 470 while dealing with the matter the Supreme Court noted that till the date of the said order the Sahara case had consumed almost 83 full working days of the Supreme Court apart from hundred and hundred of judge hours consumed in preparation of the various judgments and orders passed from time to time in the case.  You may know that we write our judgments mostly beyond judicial hours and at home.  My colleague Justice Khehar who wrote the judgment had observed that our judicial system is grossly invaded by frivolous litigation and that ways and means have to be evolved in order to deter litigants from their compulsive obsession towards ill-conceived claims.  The learned Judge also made a suggestion to the legislature for introduction of a code of compulsory costs wherein costs would be imposed on litigants who initiate and continue senseless litigations.  Such costs could be made very very pinching to act as a deterrent.

The Indian legal system can take pride in the refinements that the country’s procedural and substantive jurisprudence, both in civil and criminal cases, have reached.  But what needs to be pondered is whether their current form and structure constitute an obstacle to a result oriented legal system.  According to me what we need to overcome is considerable reduction of the length of a proceeding without sacrificing any of the refined jurisprudential principles and values that we have built up over the years.  I do not wish to go into the details of the Codes of civil and criminal procedure to locate the specific areas where remedial measures can be introduced as that would be getting too technical and I had promised you that I will not do that.

But speaking very broadly I wonder whether in respect of civil proceedings a table of cost should not be incorporated in the Civil Procedure Code itself to deal with every postponement of a case for whatever reason; to limit adjournments to a fixed number during the entire life time of a case; to fix a time limit for oral arguments and mandatory filing of written briefs.  Considering the fact that a major part of the delays in the trial of suits is on account of non-service of notice, can we not introduce the modern technology and methodology of communication including Emails as acceptable modes for causing service.  While some High Courts have amended the Code of Civil Procedure to permit service of summons by other means of transmission like fax, electronic mail service etc., many other High Courts are lacking behind. We can do so in criminal cases also. In addition can we expand the list of compoundable offences in the Cr.P.C. and make more frequent use of the provisions of plea bargaining brought into the Criminal Procedure Code by the amendment of the Code in 2006. The said Chapter is being hardly invoked. Compare this with the USA where 75% of the total convictions are the result of plea bargaining.  In India the availability of the provisions of plea bargaining are not even known to the majority of the persons charged with lesser crimes to which the provisions apply.  And lesser crimes constitute the greater number of criminal cases.  What I wish to say is that our procedural jurisprudence embodied in the code of civil and criminal procedure needs serious reflection to find out what could be the possible areas where reforms, without sacrificing what we have already achieved, can be initiated.  This is an exercise that has not yet begun.  I have been travelling through the length and breadth of the country advocating what I have just mentioned.  I have found few takers.

I would now like to change gears and proceed to the qualitative aspect of the challenge that confronts the Indian Judiciary.  Judges must deliver not only timely justice but also quality justice.  One major aspect of the qualitative challenge that confronts the Indian Judiciary is the conduct of the court proceedings by the judge culminating in the final judgment rendered.  The application of mind to the problem, the answer to the issues arising and the shedding of unnecessary fat to the written judgment are the primary areas that need attention.  Apart from 100% devotion and dedication that one takes for granted in every holder of judicial office the necessity for imbibing judge like qualities has to be consciously cultivated in the training programmes organized for judges by the judicial academies all over the country.  Such training programmes must keep in mind the ground realities that confront a judge every day in the court.  Judgment writing, they say, is an art.  Even an art can be cultivated.  This is what I keep telling the academies all over the country whenever I am visiting any one of them.

The legal landscape and the questions that are emerging before the Courts for adjudication have increasingly become more complex.  With the onset of globalization, the transactions entered into by the Indian companies transcend international boundaries thereby raising questions with respect to taxation and other incidental corporate law issues including issues of Intellectual Property Rights which call for marshalling a great deal of technical know-how.

The Competition Commission of India (CCI), even though at its nascent stage, has decided cases with respect to mergers, abuse of dominant position and cartelization.  Increasing complexity in issues are not merely limited to the type of transactions but extends to the inter-linkage between the various laws.  For example, technological advancements have brought to fore the critical interplay between intellectual property law and competition law.  With the increasing usage of technology and the frenzy of online shopping picking up, tighter data security practices need to be implemented.  Additionally, with the social media bug that’s bitten the younger generation tighter privacy laws are also required.

In the arena of criminal law there has been a change in the pattern of crime, its intensity and subsequent impact upon society.  Organised crimes like terrorism and economic offences are transnational in their operation.  Drug trafficking, trafficking in women and children, cyber-crimes etc. are crimes that have no limitations in terms of space or geographical boundaries.  In light of this, it is required that the judges constantly update their understanding of newer laws and its functioning in order to effectively dispense justice.

The Indian Courts might be posed with the question whether legal heirs of a deceased are to be given access to the deceased’s Facebook account or emails.  Delaware, USA by passing a law, became the first U.S. state to legally allow people to inherit their dead relatives’ online accounts, including Facebook and iTunes¹⁾ CHRIS PLEASANCE, Families to inherit Facebook accounts: Delaware becomes first U.S state to allow heirs of dead people to access social media and emails, Accessed on 16th February,2015 http://www.dailymail.co.uk/news/article-2729673/Families-inherit-Facebook-accounts-Delaware-U-S-state-allow-heirs-dead-people-access-social-media-emails.html Due to greater engagement on social media websites, it is expected that such questions requiring adjudication of claims of legal heirs will start coming before the Indian Courts.

Cases have been brought before the Indian courts with respect to the rights of the surrogate mother, the citizenship of the child and also the validity of the agreement entered into by the biological parents with the surrogate mother.  Presently, there is no law governing surrogacy in India though I understand a Bill in this regard was introduced in Parliament in the year 2008.  There is a PIL pending in the Supreme Court seeking directions to ban surrogacy as has been done in France, Germany and Italy.  In this regard it is interesting to note that while some states in the United States like California allows commercial surrogacy, altruistic surrogacy, namely, without any commercial consideration or covering only reasonable expenses of the surrogate mother is permissible in countries like Australia and Canada.

In the words of the great Martin Luther King, Jr, ²⁾ In his letter from Birmingham Jail -16th April 1963

“Law  exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.”  Let us remember the real wisdom behind these few words.

The challenges faced by the Indian Judiciary are formidable.  No member of the judicial system can afford to bask in past glories.  It is the confidence of the people in the system of administration of justice that alone matters; only public trust can bring credibility to the system. What is required is the uncompromising commitment of each and every member of the judicial family i.e. the Bar and the Bench.  The task is enormous but not insurmountable.  Let the good work continue.

Thank you.