Justice V.R. Krishna Iyer, the people’s Judge and often referred to as conscience keeper of justice in India, had written: “Indeed when life marches, law cannot leg behind. Therefore, Indian law cannot afford to remain feudal or Victorian or even Nehruvian or Marxian.”
‘Law’ herein includes its institutions as well as the administration of justice.
The times had been an unusual one for Supreme Court of India for unaccustomed events. Supreme Court had been in velitation for its functioning on the administrative side i.e. by seeing an unprecedented press conference by the Judges of the Supreme Court itself to master of roster controversy to collegium proceedings regarding the appointment and elevation of judges to Supreme Court and then going all virtual in Covid times. India even witnessed an impeachment motion against its Chief Justice, that too being rejected as baseless in its motion itself.
The events preceding and succeeding the motion and political parties taking sides had unfortunately coloured a rather austere exercise into a political one. I believe the stirrings shall culminate in positive improvement of the institution. Indeed going virtual is a huge technological leap for Indian Judiciary.
On the other hand the year 2018 has marked Supreme Court as a champion of gender justice for its series of landmark judgements i.e. declaring Islamic practice of ‘triple talaq’ as unconstitutional; decriminalizing gay sex under section 377 of the Indian Penal Code; declaring Adultery under section 497 as unconstitutional and allowing women of all age to enter into Sabarimala Temple changing the centuries old tradition.
The Supreme Court in Navtej Singh Johar Vs Union of India , while dealing with the rights of LGBT community vis a vis section 377 IPC have introduced terms “Constitutional Morality” and “Transformative Constitutionalism”. The concept of Transformative Constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein the ideals of justice, liberty, equality and fraternity as set out in the Preamble of our Constitution. The theory of Constitutional Morality gives precedence to constitutional principles over all other moral principles and values widely referred as ‘majoritarian view’ or ‘popular perception’.
Supreme Court, apart from championing the cause of gender justice, recognized some more important fundamental rights this year. The Right to Privacy, recognized by the nine-judge bench of the Supreme Court of India played pivot for considering the constitutionality of Aadhar Act 2016. Though Aadhar was held constitutional but non-mandatory and sections 33(2), 47 and 57 of Aadhar Act, 2016 were struck down as unconstitutional . In a major deviation from the precedents, the ‘Right to die with a dignity’ was held to be fundamental right while legalizing ‘passive euthanasia’ in India under certain circumstances by recognizing ‘living Will” .
As an important electoral reform, candidates contesting polls were directed to reveal the sources of income of their wife and children along with themselves. This law as stated with its effective implementation along with The Prohibition of Benami Property Transactions Act can go a long way to check corruption.
Out of all the reforms, one of the most important and the long due is the judicial reforms, ambiting in it from institutional reforms to educational reforms to the training of lawyers, appointment of judges and the judicial discipline for both the bar and the bench. Judiciary, apart from being the interpreter of law and so to trailblaze the executive function of the government, is also bestowed with a unique function of the adjudication of rights of the people, which is not vested with legislature and therefore Judiciary acts as a check upon the legislature as well as Executives. As Lord Denning quotes: “So we come up against Juvenel’s question, ‘Sed quis custodiet ipsos custodies?’ (But who is to guard the guards themselves?). The question was asked in the United States at the time of President Roosevelt’s New Deal in 1935. It must be asked here again before long.”
Let us discuss some other judgments, pending cases and also the suggestions from eminent jurists, which, in my opinion, can prove to be milestones for long due judicial reforms in India are summarized below:
(i) Live Streaming of Supreme Court hearings: Swapnil Tripathi vs Union of India , Full Bench of the Supreme Court permitted the live streaming of Supreme Court proceedings to effectuate the public’s right to know. Live Streaming would facilitate live telecast of the court proceedings with exception of few cases, where live streaming would prejudice the rights of parties. Live Streaming will allow the litigants to watch their hearings and shall increase the pressure to perform on the advocates and to use the discretionary power carefully on judges. The Apex court rightly observing as “Sunlight is the best disinfectant” emphasized the significance of live streaming as an extension of the principle of open courts and open hearing. Virtual hearings has been a significant step towards live streaming.
(ii) Filing up of Vacancies in lower judiciary: Supreme Court hauled up the states / High Courts to fill up more than 5000 vacant posts in the lower judiciary and directed “ to ensure prompt and timely appointments against the vacant posts and to draw up a plan / scheme to fill up the deficiencies in infrastructure and manpower.
However, with almost 1 judge per 60000 persons (about 19 judges per million) against the law Commission benchmark of 50 judges per million ( 1 judge per 20000 persons), and there would be shortage of 4000 court rooms, if all the present vacancies are filled. Out of a requirement of approximately 70000 judges as stated by Justice T.S. Thakur, the present working strength is around 16000. It is argued that the figure of 70000 is an inflated figure and we need much less as difference between the number of cases filed and number of cases decided is not vast. The argument seems to be lop-sided without basing itself upon the qualitative analysis of adjudications. We will be discussing the quality aspect in later part.
(iii) Legal Education: For effective administration and delivery of justice in accordance with law, the quality of lawyers and judges cannot be compromised with. What is most important is the inculcation of the judicial values in the law officers. Supreme Court has time and again raised its concerns over the quality of legal education in India. Justice S.A. Bobde showed his concern by advising the Bar Council of India to be more vigilant and inspect the law colleges. This concern was followed by issuance of notice to the Bar Council of India by Supreme Court on a petition filed by the M. Vasantha Raja seeking “to curb the practice of selling law degrees by letter pad law colleges”.
However, the thrust so far has been on the fulfilling of minimum requirements for running of Law Colleges as provided in the relevant Rules which is not enough for there is a dire requirement to overhaul the system right from revising the syllabi to extending effective practical training and most importantly to inculcate the judicial virtues. Unfortunately, while selecting judges, what we ignore most is to examine the judicial virtuousness in candidates.
(iv) Appointment of Professional Court Managers and facilities to be provided in court buildings/ judicial infrastructure: Recognizing the poor judicial infrastructure, particularly in interior parts of the country, the Supreme Court in All India Judges Association & Ors Vs. Union of India laid down standards and mandatory facilities in the court buildings across country which also included appointment of professional court managers having MBA degree. Other than Court Managers, Supreme Court also directed for added provisions in the court building i.e. court rooms, litigants waiting rooms, conference halls, vedio conferencing rooms etc.
(v) Witness Protection Scheme, 2018: The Supreme Court approved the Witness Protection Scheme, 2018 presented by the Union of India and directed all the States and Union Territories to implement it and set up Vulnerable Witnesses Deposition Complexes at earliest. This is expected to be milestone for criminal justice system which relies heavily on witnesses .
(vi) Litigation Funding: During Law Day celebrations, the eminent jurist and the Attorney General of India, Mr. K. K. Venugopal footed the idea of litigation funding by a third party as a cure to problem of access to justice. The concept of litigation funding financing of a case by a third party to the dispute, which at present is illegal in India under the Law of Contracts and is unethical on the part of Advocates under the Advocates Act.
Its though agonizing that sparing a few, it is hard if not impossible for the commons to endure the long prolonging litigation and its rising expenses to which litigation funding may be a viable option in securing access to justice to all. This can also bring a balance of resources between the parties where there is financial disparity is financially superior to another.
What has so far been endeavoured in the last year or is there in the offing has been very briefly discussed here. However, in order to keep pace with the changing society, we require more comprehensive, futuristic, qualitative structural reforms. For any reform to be permanent, education is the key as no change can be permanent unless it is driven by the free will of its subjects. The knowledge and understanding of Law is necessary for every human being as Law has inextricable influence in every person’s life at least under the rule of Law. Sir Edward Coke pens down the importance of knowledge of law in following words-
“There is no jewel in the world comparable to learning: no learning so excellent both for Prince and subject, as knowledge of laws; and no knowledge of laws (I speak of human) so necessary for all estates and for all causes, concerning goods, lands or life, as the common laws of England.”