Mr. Justice Y. V. CHANDRACHUD
Formerly Chief Justice of
There was never a time, which called for
greater alertness in order to ensure that democracy serves the public interest.
In a way, democracy as a form of government is itself on trial in the midst of
the propaganda that it lacks character, efficiency and a genuine desire to meet
the needs of common men and women. The answer to these allegations can only be
that our democracy is responsive to the public good–not the good of the few but
that of the largest number.
The main question to be considered is whether
our judicial process has achieved a stable measure of democratisation
and humanization. Democratisation of justice implies
that the judicial process must be made available to the common man promptly and
cheaply. In the field of law, it is regarded as axiomatic that law in a
democracy is a command of reason, the object of which is to achieve the common
good. If that be so, it must follow that justice cannot be allowed to be monopolised by the privileged or the economically
advantaged sections of the society. The true success
of any judicial process consists in its ability to solve the daily problems of
millions of unfortunate people who are unequal to the others.
The Supreme Court of India has struck a new
path in this regard by embarking upon the unprecedented venture of public
interest litigation. The court treats post-cards as writ petitions and, after
issuing notice to the other side, grants relief to persons who cannot possibly
have access to the law courts because of the enormous expense which it involves
Both expense and time are saved by this process. There is always a certain
amount of risk involved in acting upon grievances not stated on oath, but
grievances supported by oath are also not necessarily true. The judges, with
their training and experience, can be trusted to take care of deceptive
situations.
The second important consideration is humanisation in the administration of justice. Today, our
country is passing through unforeseen difficulties, but perilous times are also
challenging times. The judicial process must stand up to such challenges and
ensure that justice is administered with an even hand. The glory of law is that
it always lives to fight another day for the cause of justice. Summary
procedure has to be resorted to by the trial courts in unprecedented
situations. The higher courts, however, examine the record with more than
ordinary care for the simple reason that the normal safeguards of a
full-fledged trial were not available to the accused.
No Government can afford to condone or
connive at crimes which tend to threaten the very foundation on which the
edifice of a democracy rests. Whatever may be the end to be achieved, it cannot
be overlooked that even the most compelling purpose has to be achieved through
a judicial process which is sensitive to the norms of fair play in each
individual case. The fulfilment of democratic ideals
consists substantially in the faith which the people repose in their system of
justice. The fundamental premise is that you cannot put a person in peril of
his life without according to him the substance of a fair trial. The Supreme
Court which is the first appellate court in specific matters,
ensures that this salient safeguard is observed scrupulously.
It is also necessary in the field of criminal
law to place adequate emphasis on the rehabilitation of criminals. This alone
is the manner in which wayward lives can become productive lives. The more the
society attempts to perpetuate the stigma attached to a crime, the lesser will
be the chance of rehabilitation of the criminal, and
naturally lesser will be the number of persons who can be turned into useful
citizens. The syndrome of criminality has to be reversed through the medium of
the judicial process. For that purpose, the process of law has to move “in the
thick of things.”
We must resist any sense of frustration or
despondency in so far as the working of the judicial process is concerned. We
must find courage and resourcefulness to reform the system of law even
radically if necessary, so that it becomes an instrument of justice, not a
weapon of harassment and oppression. There are infirmities in our judicial
process today which, if not cured promptly, are likely to erode the very
credibility of our legal system.
In the first place, the system of
investigation of crimes as well as the mode of prosecution of criminals must be
re-examined. Criminal investigation has to be made more objective and independent. At the same time,
the trial of criminals has to be more speedy and less
ridden by technical rules of procedure and evidence. It is unfortunate that our
traditional training teaches us to respect nothing but technical evidence and
to believe that our highest duty lies in submitting to it, however much it may
be against our inclination and common sense.
One important weakness of our system of
justice is that it does not contain a built-in mechanism for mediation and
negotiation. Again, it positively discourages the arbitral process There is no
provision in any of our laws except in the industrial laws and to some extent,
in the matrimonial laws, which makes it obligatory for the prospective litigants
to try to resolve their differences through out-of-court settlements. Mighty
preparations are made by litigants to take their disputes to the courts and
once the court is approached it becomes too late for the parties to retrace
their steps. The normal human tendency is to carry a court case to its logical
conclusion by fighting to the bitter end. In matrimonial cases, when judges of
the higher courts call the parties to their chambers for exploring the chances
of a settlement, the most serious stumbling blocks are the frivolous questions put in
the cross-examination, casting aspersions on the moral character of a spouse.
The impression which any observer of the judicial process forms is that the
whole process is somewhat isolated or divorced from the realities of life. A
constant consciousness of the desire to do justice seems conspicuous by its
absence. There is no central philosophy which would seem to guide or govern the
steps which the courts take from time to time. Trial judges have to realize that
they are not automatons appointed for taking down scurrilous evidence motivated
by malice.
A famous judge has said that, while
civilization has survived in bygone years without science, there never has been
a civilization
which has survived without a system of law adapted to its peculiar needs. No
society is stagnant, no society stands still and no society can suffer an
outrage on decency. Therefore, unless the legal system adapts itself to the
changing needs of the
people, even the most inveterate faith in law will not assure its viability in
the challenging conditions of our time. For achieving this deal ad hoc therapies
for isolative trouble-spots are wholly inadequate. What is necessary is to
identify the key points for adjustment between the framing and implementation
of laws on the one hand and the aspirations of the society on the other.
Students of law are familiar with Dicey’s notorious
formulation that the legislature lags a generation behind public opinion and
the courts lag another generation behind the legislatures. Procedure, which is the hand-maiden of
justice, should not be allowed to become its tyrant master.
The legislature has a very significant role
to play in the matter of law reform. In the context of the emerging
complexities, a mere guess-work of politicians sprinkled with the skill of the
legal draftsman would not be an adequate basis for law reform. The Indian
Parliament has to face a herculean task in trying to
reconstruct the life of the bulk of its people. The innate opposition of the
village community to development plans, the parochial patterns of caste
authority and the domination of intrigues based on casteism
furnish unmistakable evidence of the chasm between the vision of the law-maker
and the inherited social system. The challenge has to be met even if the wheels
of law reform grind slowly.
Instead of beating their luminous wings in
vain, like Shelley’s angel, the lawyers, the judges and the academics must get
down to earth and its problems. In the words of Dean Pound, they have all to be
social engineers who would keep law and life in a harmonious balance. In the
ultimate analysis, the law and its technique are the husk, not the grain. The
grain is equality. Therefore, protection of human dignity has to be one of the
fundamental endeavours of law and equality in human
affairs one of its vigorous impulses. Law, undoubtedly, is a science of
language but, it is not mere words which sustain the law. Words remain empty
unless they are complemented by practical action.
In the context of the goals which our
Constitution envisages, the concept of justice has assumed a new significance.
A system of justice accessible to all and responsive to the genuine public
interest is indispensable to the functioning of a democracy. Therefore, justice has to be
a dynamic rather than a static concept. It must imply an affirmative or
positive action rather than the mechanical application of disembodied statutes.
In that sense, justice is both the end and the means to an end. The value of
the courts as instruments of justice depends upon the wisdom of those who use
that instrument. A sense of confidence in the courts is necessary to maintain
the fabric of liberty for a free people.
These are some of the challenges to the
judicial process in a democratic polity. We must find wisdom and courage to
pursue our endeavour to meet these challenges. The
ultimate goal which has to be achieved through the judicial process is the
creation of a just society. No sacrifice can be too great to ensure that every
body has a roof over one’s head and gets at least a square meal a day. Law must
live to fight for these goals.