CHALLENGES TO THE JUDICIARY-I
Mr. Justice Y. V. CHANDRACHUD
Chief Justice of
Is justice quick enough, cheap enough and
fair enough? This inquiry sums up broadly the current challenges to the
judiciary. One of the foremost challenges which the judiciary faces today is
how to administer justice speedily to the millions who throng the portals of
courts with faith and confidence. A thirty-year old woman asks for divorce on
the ground of desertion. She succeeds, but by then she has lost her zest for life.
There is no Family Court which can take up her case expeditiously and hear her
case with sympathy and understanding. Rapprochement,
reconciliation, adjustment of conflicting interests have to be the prime
concern of courts, particularly in family disputes. But, with a huge hang-over
of pending cases, our courts have neither time nor inclination to take interest
in such useful exercises. And they are not to blame. Their performance is
judged by the test of how many judgements they have
delivered in a month, not by the test of how many broken families they have
brought together.
Separated spouses and their unfortunate
children are silent spectators to harrowing court scenes where skilful
quibbling and hair-splitting is done by the learned men and women of law:
“Women of Law” too, for, women lawyers do not necessarily exhibit a greater sense of homeliness in
these matters.
There are other cases which are stranger than
fiction. Under-trial prisoners
are lying in jails for periods far exceeding the maximum sentence which could be imposed upon them if they were found guilty. Lawyers do not
have locally based organisations to take up these
cases for inquiry and treatment; or, are they too pre-occupied with handsome
briefs? It is the academicians and social scientists who have drawn the
attention of a cold and indifferent world to the sufferings of these neglected
segments of society. And out of their concern for the welfare of the poor and
friendless has grown the concept of public interest litigation. Public interest
litigation does attract a great deal of publicity but that is not its
rationale. Nor is that the object of judges in exercising epistolary
jurisdiction. We act on informal letters and telegrams which complain of
oppression and injustice. It cannot be claimed that such an exercise of
jurisdiction does not suffer from pitfalls and infirmities but, in law as in
life, the least unsatisfactory method of reform is the method of ‘trial and
error’: only, that the trial should not last too long and the errors not too
many. But may it be remembered
that the new access to justice has unearthed and brought to surface grave ills
which afflict the society. By expanding the narrow limits of locus standi, the Supreme Court has opened a broad avenue to
quick and cheap justice for those who have been traditionally denied justice on
technical and bigoted considerations. The judges have taken up the role of a
legislator – to a limited extent, of course, and
interstitially. This is one of law’s finest achievements in recent times. It
reflects the court’s awareness of the great and growing importance which the
Directive Principles of State Policy have under our constitutional scheme.
Directive Principles may not be enforceable by a Writ of Court but they are not
like an ornament, the object of which is to adorn or beautify. The Supreme
Court has risen to the challenge of social commitment by illumining the dark
corners of law and by bringing hope and happiness in lives of the destitute,
the desolate and the homeless.
It is, of course, necessary to bear in mind
that in these fresh fields judges must tread warily. While extending the
frontiers of jurisdiction and widening the horizons of justice, care has to be
taken by the judges to ensure that they do not overstep the limits of judicial
review. What is called for is a wise and unfailing restraint on the power to
review the acts of public authorities. Restraint, not rhetoric, enhances the
credibility of judicial institutions.
What then are the causes of these diverse
difficulties which beset the path of justice, and how will the judiciary deal
with these challenges? The great changes in our life pattern, the explosion of
population and the proliferation of laws have created an unprecedented
situation which has imposed unforeseen burdens and created impediments of a
totally different dimension on our system of justice. The need for change has
been recognised over many years past, but no one has
suggested or accepted any worthwhile reforms for quickening the pace and
improving the quality of justice. It is a sad commentary on our approach and
attitude to this problem, particularly of the Bar and the Bench, that we are
victims of traditional constraints and training. We have resigned our fate to an existing system
merely because it exists. It is a plain fact of life that what exists continues
to exist, because no one has the will and enthusiasm to change an existing
stage of affairs, even if it is in a state of disorder. Human nature is averse
to change and revels in taking a false pride in tradition, good or bad. Indeed,
blind respect for tradition becomes an excuse for refusal to reform a system.
One cultivates a cosy sense of delusion that it is a
sacrilege to improve upon what destiny has brought one’s way. It is hard to
persuade even slum-dwellers to leave the hell which they call their home.
Broadly, human nature favours the maintenance of status
quo. It is high time that our men of law, whether they be
at the Bar or on the Bench, realized that they cannot any longer afford to tax
the patience of the citizenry which is disillusioned with the inadequacies of
our justice system.
Revolutionary sentiments are expressed,
freely and frequently, that the existing structure of our system of justice
must be pulled down lock, stock and barrel. We ought not to find alibis for our
inability and unwillingness to work the present system to its farthest
potential. I agree that our system of justice is not to be praised merely
because we have inherited it. Every inheritance is not precious. But we should
not despise and reject that system merely because it has come to us from an
alien ruler. We must try to work it faithfully and honestly and keep on
improving upon it, until we find a viable alternative. We must, if we can, put
our house in order before we advertise the sale of its debris. It is not as if
law has failed to achieve any significant results at all. It has not failed of
its purpose. The charge is that it has not fulfilled the just expectations and
aspirations of the people. I am hopeful that it is possible, within the present
framework of our legal structure, to devise ways and means fur making law an
effective instrument of social justice.
The challenge of today to the judiciary is
the challenge of the hopes and aspirations of the hewers of wood and the
drawers of water, the butcher, the baker and the candlestick-maker. Law must
improve its performance where it touches these common men and women. Procedure,
which is a handmaid of justice, should not be perverted to perpetuate class
inequalities. Too often, the courts have intervened to aggravate rather than
relieve the tensions which plague the society. We must prepare ourselves
psychologically to learn and understand the simple truth that reforms have to
begin at the right end, the lower end. It is a facile belief expressed in a
cavalier fashion that lower courts have minor problems and that lower standards
are, therefore, good enough for them. When we say this, we forget the simple
home-truth that early years are the most important in the life of a man.
Similarly, early years in the life of a litigation is
the formative period of that litigation. Adequate attention must therefore be
paid to improving the surroundings of justice in places where ordinary
litigation takes its birth – the lower courts.
The Government must come forth to offer
adequate grants for conducting research into the problems which beset the
working of the lower courts. The fall in the standards is an emerging challenge
to the judiciary and that can be met satisfactorily only by improving the
conditions of service of the subordinate judiciary.
The discrepancy between the law which a
student learns and the law in action, which is another name for justice as the
common man sees it at the point where it touches him, is widening. We have to
be honest and candid in the assessment and appraisal of the existing judicial
procedures and we have to be imaginative in restructuring traditional
institutions in order to equip them for meeting the challenges of our times.
Some more money and many more judges are not
an adequate solution to our problems, though more judges are needed and, well,
more money too. Our main problem arises from our failure to apply the modern
techniques to the ancient system of administration of justice. By our blind
adherence to time-honoured methods, we have virtually
banished from the court the dwindling class of truthful witnesses. Honest
witnesses are scared to step into the witness-box. The clever lawyer, unrestrained
by an indifferent judge, makes fool of a witness and the more truthful he is,
the more foolish will he be made to appear.
Today an entirely new class of litigation is
coming to the courts. Social upheavals and even the political upheavals of the
twentieth century have brought about a vast change in the lives of individuals.
Facilities for movement have created a mobile society with all the concomitant
problems. The rural people are crowding into cities, either because there is no
means of livelihood or because life is unsafe in villages. The sophisticated
city-dweller concerned with the health and hygiene of his wife and children but
not with the need of a starving man for a piece of bread, is not prepared to
receive him. The rich look upon the poor as filthy and dishonest. The courts
must take up this social challenge and rehabilitate their prestige by a
visionary commitment to the socialistic goals of our Constitution.
If growing disrespect to law is today
nibbling at the foundations of the law, a prime reason is the failure of the
law to communicate with the layman. The layman sees his expectations of justice
belied in many an instance and with each shortfall between the practical
decision and the ideal result, there follows a diminution of respect, lowering
the prestige of law, the lawyer and the judge alike.
In the ultimate analysis, people’s confidence
in the court can alone maintain the fabric of an ordered liberty for a free
people. Therefore, the duty of the courts is to instill into the people that
sense of confidence so that freedom and liberty will live. That is the way I
look at the challenges which confront the judiciary.