E-Judiciary  and  Its  Importance  in  E-Governance  System -- A Study

(By Yadukrishnan. B., Advocate, High Court of Kerala)

 

“The day might come when we lawyers also shall use an electronic machine in predicting judicial behavior and when the courts will use one in arriving at their decision”.

                                                                           -- Japanese  jurist  T. Hayakawa

 

Administration of justice is one of the primary functions of the State. State administers justice through courts and tribunals.1 The concept of e-judiciary has been evolved as one of the resultant products of e-governance of the modern world which is computer savvy. This is an initiative of information technology which had acted as an eye - opener at the need of over burdening of courts with mounting cases which could not be resolved manually even at least with minimal difficulty. E-Justice is considered and rendered as an organ of e-governance.2 The idea of ‘e-courts’, was first conceptualized by former Chief Justice of India R.C. Lahoti.

 

Information Technology (I.T.) has found its way into legal practice and as a part thereof to the judiciary3. The extent to which I.T. is used in judiciary can be looked from two angles. One is the use of information technology to improve the present paper based system by bringing in the advantage of I.T. to increase the speed enormously and also to bring greater transparency. Information Technology can be used in functions like filing the schedules, posting of cases, grouping of cases and so on. Information Technology can increase the speed of justice delivery system, thereby enhancing the efficiency of the system. The second aspect of the use of I.T. in judiciary is when the computer network is used for trials of crimes in cyber space. The Information Technology Act, 2000 also identifies the type of offences and by and large the same old courts which operate on the paper based system also have to deal with these cases4.

 

Objectives of  the  E-Court  System

From 2001-2003, 700 city courts in four metros were computerized and during 2003-04, computerization of another 900 courts were undertaken. Need was felt to make the programme of ICT enablement of the Indian Judiciary mission-critical. Under NeGP, an integrated Mission Mode Project was conceived and was titled ‘e-courts’. Main objectives of e-courts Project were:

 

      1)         To help judicial administration of the courts in streamlining their day-to-day activities.

      2)         To assist judicial administration in reducing the pendency of cases.

      3)         To provide transparency of information to the litigants.

      4)         To provide access to legal and judicial databases to the Judges5.

 

The e-Courts scheme aims I.C.T. enablement of lower courts across the country in their functioning. The project envisages the deployment of hardware, software and networking to assist district and taluk courts in streamlining their day to day functioning. Key functions such as case filing, allocation, registration, case workflow, orders and judgment will be IT-enabled. Cause-lists, case status, orders, judgment will be available on the web and made accessible to litigants, advocates and general public. The e-Courts project thus aims to build a national grid of key judicial information available 24/7 in a reliable and secure manner6.

 

Information  Technology  in  Indian  Judiciary  --  Courts  Projects  and  Information  Systems

Courts Information Systems Projects (COURT IS-Project) are computer based software applications that integrate many judicial, administrative and miscellaneous functions of courts7. These software packages vary from simple applications to very complex solutions depending on the goals and scope defined by court administration. Implementation of COURTIS can definitely improve efficiency and quicker dispensation of justice. Further, these projects are cost effective. Hence, COURTIS project is considered imperative for judiciary in India with the advent of modern computer technology.

 

In 1992, the Chief Justices of High Court’s Conference decided to implement the computerization project in their courts on the lines of Apex Court’s Computerization Project. Thus the COURTIS project was developed by NIC8. Following are some of the applications which have been successfully implemented at Supreme Court and 18 High Courts and these applications have either direct or indirect impact on the masses:

 

1)   List  of  Business  Information  System  (LOBIS)

LOBIS involves computerization of scheduling of cases to be heard by the courts on the following day. It enables the Registries of Supreme Court and High Courts in eliminating manual process of Cause List generation, thus avoiding any manipulation by vested interests. These databases contain details of fresh cases, disposed and pending cases. It is the backbone application of every Court9.

As Cause Lists are generated automatically by the computer, manual intervention has been eliminated resulting in smooth and timely generation of cause lists.

 

2)  Filing  Counter  Computerization

Computerization of filing process in Supreme Court and High Courts is another outcome of COURTIS project. Computerized filing counters receive fresh cases which are filed before Supreme Court and High Courts. Data entry operator in these counters enters preliminary details required for registration such as party names, advocate details, etc. Queries and defects are instantaneously addressed. Time limitation is also checked by the system automatically. This has streamlined the filing process. The amount collected towards Court fees in a day is automatically calculated10.

 

Computerized filing counters make filing process easy. Advocates and litigants do not have to languish in the queue to file their cases. Court fee collected is calculated automatically. Litigants query is answered by the operator in counter, saving the precious time and energy of litigant to go around different sections. Computerized filing counters thus serve as ‘single window’ for advocates and litigants. Filing process is made orderly.

 

3)  Case  Status

Case - status gives the latest information with respect to the status of a case like: case number, disposed/adjourned, lower court details, party and advocate names, date on which last listed, waiting position, subject category along with exact verbatim of the text of the Court’s order. The moment a case is filed in the court, its ‘Case - Status’ is available on the web, giving filing details such as dairy number date of filing, etc. Litigants can find out whether their cases have been filed in the court or not without contacting the advocates. The ‘Case-Status’ also provides all orders pertaining to a case, delivered so far by the court11.

 

4)  Courtnic

COURTNIC is an information system designed to provide information on the Apex Court to a wide range of users. COURTNIC is intended to cater to the information requirements of judges of the lower courts, advocates, litigant public and others who are interested in the judgments of the Apex Court. Databases of COURTNIC are created by NIC and maintained by the Supreme Court. Information will be available to the litigant public at nominal charges. COURTNIC answers about two hundred queries of litigants/advocates per day all over the country on the status of their pending cases. Primarily COURTNIC information is available in all NIC-High Court Computer Cells and in some District Courts. It has got 3 basic objectives. Firstly it enhances the confidence in the judicial process. Secondly it provides online Apex Court information to the litigant community across the country within the shortest possible time. Thirdly it helps in providing an easy flow of information12. These are the main objectives of the COURTNIC system.

 

5)  Cause  lists  on  the  internet

Cause Lists are scheduling of cases to be heard by the courts on the following day. NIC servers host cause lists of Supreme Court and various High Courts. Currently, cause lists of Supreme Court and 21 High Courts and 10 Benches are maintained by NIC. The Cause list application is the backbone application of all courts as no court can function without that day’s Cause list.

 

Hosting cause lists on the internet becomes a boon in certain circumstances. Firstly, it severely reduces the cost of generating daily cause list as they are already using available infrastructure and software of NIC. Secondly, advocates are able to receive the cause lists almost immediately after court hours. Thirdly, advocates can generate their own cause list, containing their own cases. Fourthly, availability of cause lists on internet means that a litigant will now be in a position to know the exact position of his case, without depending on his advocate.

 

6)  The  Judgment  Information  System  (JUDIS)

The JUDIS or Judgment Information System is an online case law library developed by NIC13. JUDIS consists in complete text of all reported judgments of Supreme Court and several High Courts. In the case of Supreme Court all reported judgments in Supreme Court Reporter (SCR) since its inception, i.e, from 1950 onwards are available. While judgments reported in SCR till 1993 have head notes, all cases reported in SCR after 1993 are available in JUDIS without head notes. Judgments can be accessed through party name, advocate, Date of judgment and more importantly by free text search. This enables the users to retrieve all relevant judgments on a particular subject.

 

7)  Daily  orders  on  the  Internet

Daily orders of Supreme Court and High Courts are available on the internet. Uploading of daily orders take place as soon a judge signs the orders. It is the easiest way for litigants to get a copy of the latest order delivered in the court from their residences/offices. The free text based search enables the users to access relevant orders of the court on the same subject14

 

8)  Computerization of  Courts  --  Supreme  Court,  High  Courts  and  Subordinate  Courts

Computerization of Courts in India commenced during early 1990’s. Under COURTIS project, several projects have been initiated in Supreme Court, High Courts and subordinate courts. Flagship projects are mentioned above. Apart from these projects a few more projects deserve mention:

 

9)  Filing  Defects  on  Web

In close co-ordination with the Registry of the Supreme Court of India, NIC has implemented ‘Filing Defects’ along with the already implemented ‘case-status information system’ on the Supreme Court’s web site.

 

10)  Digitization  of  Old  Records

Followed by the successful computerization of many decision making and decision support system, NIC has taken up computerization of Digitalization of Old Records i.e. Disposed Case files.

 

11) Suplis

This package contains the citation Information of all reportable cases decided by the Supreme Court. It provides citation from five Journals and cases can be easily located on the basis of citation.

 

12)  Digital  Display  Boards  on  Internet

NIC developed an application tool to convert the Digital Display of the display board and make it available on Supreme Court’s Web Site. Digital Board Information can be accessed at (www.supremecourtofindia.nic.in).

 

13) Supnet

It is application software developed by NIC which provides information access about employees of Supreme Court.

 

14) E- Kiosks

Kiosk is a booth with an open window on one side15. An electronic kiosk houses a computer terminal that often employs custom kiosk software designed to function flawlessly while preventing users from accessing system functions16.

 

15)   Interactive   Voice   Response   System (IVRS)

The litigant public can access the status of their cases filed in the Supreme Court using an ordinary telephone using IVRS.

 

16)   Computerization   of   High   Courts

National Informatics Centre (NIC) also took up the task of computerization of High Courts along the lines of Supreme Court. NIC implemented LOBIS in all High Courts. Court orders/proceedings are digitized. Software has been developed for storing and retrieval of orders. Record Room Information System which keeps track of all old files and maintains records of the consignment of matters have been implemented. Another application developed is the Notice Generation, which generates notices to be served to litigants/advocates issued by the registry.

 

17)  Computerization  of  Subordinate  Courts

In 1997 NIC took up the computerization of all 430 District Courts in the country. In
2002-2003 NIC took up the computerization of the City Courts of four metropolitan courts i,e., Delhi, Mumbai, Kolkata and Chennai. Under the project, many decision making, decision support and public interface application areas which will help in simplifying routine activities and provide easy and transparent access facilities to the litigant public, are taken up for computerization17.

 

NIC has taken up the Computerization of City Civil Courts off 26 States and Union territories under its project  City  Civil  Courts  Information  System  (CC-COURTIS)”18.

 

18)  Application  Software  for  Courts

In addition to mega a project, NIC has also developed several application softwares meant for various administrative branches of the Courts. Some of them are payroll application software, Budget Monitoring System (BMS), Revision & Gradation Process Information System (RGPIS), Certified Delivery System (CCDS), Library Information System (LIS), Disposal Information System (DIS), Vigilance Monitoring System (VMS), and Works Monitoring System (WMS) etc.

 

19)  Case  Finder  Software’s

Many private law reports have developed simple and efficient case finder software’s to their subscribers. Prominent among them are All India Reporter, which had digitized their case reports and are marketed as AIR Supreme Court and AIR High Courts. Supreme Court Cases had launched their case finder software called SCC Online19. Manupatra is another online legal database, which provides latest decisions of Supreme Court, High Courts in addition to maintaining huge archives of earlier decisions20. In Kerala, Kerala Law Times (KLT) has launched its case finder software called 'Verdis’.

 

E- Filing  o f F.I.R.

Recent trend with respect to filing of F.I.R. is that now we can file F.I.R. electronically. This is a great gift from science and technology. The Government must allow the online filing of first information reports in rape cases as that alone will ensure mandatory and automatic registration of complaints.

 

On January 18, 2013, Delhi Police Chief Neeraj Kumar announced that Zero First Information Reports (F.I.R.s) may be registered on the basis of a woman’s statement at any police station irrespective of jurisdiction. This means women can file an F.I.R. at any police station and the complaint is required to be registered on the basis of the woman’s complaint verbatim. Mr. Kumar stated: “The woman’s statement has to be taken as gospel truth and a probe needs to be initiated on its basis.”

 

At the same time, the Delhi Police Chief announced a series of other measures such as the recruitment of 418 women sub-inspectors and 2,088 women constables, deployment of PCR vans outside women’s colleges, the provision that women can call 100 to seek assistance to be dropped home at night by a PCR van, and 24-hour police cover for areas around entertainment hubs with heightened security between 8 p.m. and 1 am. While the foregoing measures must certainly be welcomed as an important step forward towards making the criminal justice system functional, it is surprising that e-governance has not been utilized by the Delhi police as an important solution in a country which is considered the world’s leading provider of IT enabled solutions.

 

As shown by the introduction of the Zero F.I.R., the starting point towards improving criminal justice is the filing of the criminal complaint itself. It is well known that the filing of F.I.R.s, particularly for cognizable offenses, is an extremely difficult exercise — more so for a rape victim who has to ceaselessly recount the horrific event. Police stations often refuse to register FIRs for cognizable complaints, and innumerable rapes around the country go unreported. The victims then are forced to file a private complaint in court under Section 156(3) of the Criminal Procedure Code (Cr.P.C.) seeking an order directing the police to register an F.I.R.

 

The online registration of F.I.R.s was supposed to be implemented by 2013. On
March 21, 2012, the then Union Home Minister, P. Chidambaram, stated in the Rajya Sabha that online registration of F.I.R.s would be possible once the server and network connectivity was established by the end of 2012 or early 2013. However, the online filing of F.I.R.s will be made possible only upon the implementation of the Crime and Criminal Tracking Network and Systems (CCTNS), an ambitious `2,000 crore project of the Home Ministry, aimed at increasing the efficiency and effectiveness of policing through e-governance by creating a state-of-the-art IT-enabled crime tracking system for investigation of crime and detection of criminals.

 

Under CCTNS, 14,000 police stations will be automated as well as 6,000 Offices of Higher Police Officials. The CCTNS is a platform for sharing real time information by law-enforcement agencies, which will improve identification of criminals and crime investigation. Funds in the amount of `418 crore have reportedly been released to the States/Union Territories and4.54 lakh people have been trained. The CCTNS project was supposed to be completed in March 31, 2012. However, in June 2012, the Cabinet Committee on Economic Affairs (CCEA) extended the deadline to March 2015.

 

Electronic Application for Summons

Filing an application via web service

By using the electronic services of the judicial administration, a creditor may file an application for a summons concerning undisputed debts, follow the processing of the application, and obtain a decision in the matter. The service is available in Finnish and Swedish.

 

Service for companies and corporations filing numerous applications for a summons (Santra system) The service is primarily intended for those who file numerous applications for a summons, such as professional debt collection agencies. Electronic filing of an application for a summons via Santra system is reserved for simple and undisputed “summary” debt collection cases. The system transfers the electronic applications sent by the plaintiff to the case management system of the District Courts.

 

The creditor must, at his or her own expense, develop software for his or her own information system in order to be able to compile such application records that meet the set format criteria. The file format descriptions for Santra are available at the ICT Service Centre for the Judicial Administration, which also checks that the technical requirements have been met21.

 

E-Filing  of  Pleadings

With the development of Information technology a party can file his plaint in the civil court electronically. Plaint is the statement filed by a plaintiff in a civil suit against the defendant, whereas written statement is the reply filed by the defendant against the plaint filed by the plaintiff. These two constitutes pleadings in general. Before the development of E-commerce and I.T. law the common man faced some difficulties with respect to the filing of pleadings before the court. Now everything has been changed and speeds up because of the E- filing of pleadings. This itself ensures a clean pattern of administration of justice from Indian judiciary and provides easy access to justice to the common man.

 

Under C.P.C. the provision of demeanor of witness is highlighted. With the development of Information technology in the Indian Judiciary the procedure with respect to demeanor of witness and examination has been done electronically which proves to be very much effective than what it was before.

 

Impact  of  Right  to  Privacy  under  E-Judiciary

Right to privacy is an important right guaranteed to each and every citizen. It is an implicit rights under Art 21of the Indian Constitution. Right to privacy in India has twofold sources (a) Common law; (b) Constitutional law22. Under the common law of tort, a private action for damages for unlawful invasion of privacy or defamation applies23. Under the Constitutional law, the right to privacy regarding one’s private life is implicit in the fundamental right to life and liberty which is guaranteed by Article 21 of the Constitution, which includes a right to be let alone.

 

Information Technology Act, 2000, which is the nodal legislation as far as information technology is concerned, did not contain any specific provision to address the issue of cyber privacy and data protection. Section 72 of the I.T. Act is titled, “penalty for breach of confidentiality and privacy”. However, the scope of this section is too narrow. In its application, this section would be extremely limited since it covers offences only by authorities such as Adjudicating Officers, members of the Cyber Appellate Tribunal or Certifying Authorities under the Act. Section 43 also provides penalties for unauthorized access to a computer system, unauthorized extraction of information from a computer resource.

 

Impact  of  Online  Dispute  Rsolution  under  Indian  Judiciary

ODR can be defined as a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.

 

ODR is a wide field, which may be applied to a range of disputes; from interpersonal disputes including consumer to consumer disputes (C2C) or marital separation; to court disputes and interstate conflicts. It is believed that efficient mechanisms to resolve online disputes will impact in the development of e-commerce.

 

Significance  of  Artificial  Intelligence  in  Judicial  Decision  Making

The Artificial Intelligence technique has found its way in various fields like Banking, Academics, and Business Management and now in Judiciary also momentum is rising to include the Artificial Intelligence in decision making process and it is being already done in some of the countries and providing good results. However, Indian courts and the Judges do not seem prepared yet to accept the technology for better performance of the justice delivery system. The reason being ignorance of the technology, less skilled staff although, computer technology has already been dispensing the ministerial functions of the courts. One grey area has still been there which can very well be rectified by the use of artificial intelligence technology and that is the typing of judgments that has become very serious issue for the delivery of justice in due time and the reason of unnecessary delays. That facet of Al is the Voice Recognition Technique which also requires Al for recognizing and identifying the words that are being delivered during the trial or final decision of the court. The Voice recognition technique has basically two types Speaker Dependant which is commonly used for dictation software and the Speaker Independent mainly found in telephone applications. The Speaker Dependant Voice Recognition Technique has worldwide usage in the Courts and it is high time for Indian Judiciary also to use and accept the technology for the efficient functioning of the court system and thereby preventing the precious time of the courts from being going waste.

 

Voice  Recognition  Technique  and  Courts

One of the most critical aspects of the judicial process is the requirement that a verbatim record be created for virtually all judicial activities. This “record” had been created and kept using three primary methods until just a few years ago. The earliest records of judicial proceedings were recorded by pen and ink. This usually involved a scribe quickly writing briefs of court proceedings during or immediately after court. Different forms of shorthand writing were implemented in the nineteenth century. Machine stenography was invented in the early part of the twentieth century and remains a popular method used by the courts. Personal computer and word processing had a major impact on transcript preparation. Subsequent inventions of computer aided transcription quickly moved machine stenography to a higher technology based process. The invention of sound recording machines in the form of tape recorders spawned the use of these devices to create an analogue recording of court testimony and proceedings. Another method involves an operator repeating every word being said into a mask. Voice recognition software converts the spoken word to type for further use. Automatic speech recognition (ASR) as it is called in some countries is the process by which a machine (e.g., computer) is able to recognize and act upon spoken language or utterances. An ASR system typically consists of a microphone unit, computer, speech recognition software, and some form of audio/visual/action output. A popular ASR application is the automatic conversion of speech to text, which has the potential to increase work output efficiency and improve access to and control of various computer applications, such as word processing, email, dictation and document retrieval. The voice recognition technology has already been used by the stenographers for writing judgments through voice recognition software also termed as “voice writing”. Voice recognition systems have been tested by the Austrian Justice since 1997 and already in use in European courts by the judges. At that time a group of 10 voluntary judges and public prosecutors were equipped with voice recognition systems consisting of a notebook with headset and the program “Voice Type Simply Gold” by IBM. Both hardware and software have progressed significantly since then. Nowadays the voice recognition program can be supported by the standard equipment of all workstations, so no additional hardware is necessary.

 

Voice  Recognition  and  the  Lawyer

In the legal profession, planning for an appeal often begins as early as drafting the complaint or answer to the initial suit, and sometimes even before that. Clients frequently call upon a firm to assist their trial counsel in specific areas, including the initial formulation of a case, briefing and arguing motions, developing legal theories and trial strategy, preparing trial briefs and jury instructions, and briefing and arguing post-trial motions in anticipation of an appeal. Because time is always of the essence in the judicial system, the ability to quickly move case information into a digital workflow is critical to maximizing the analysis time for each client. Surprisingly, in this predominantly electronic business age, a majority of attorneys and judges are still behind the information technology curve. These legal professionals are drowning in a sea of tedious and costly manual processes for creating, collecting and organizing case data. Law offices large and small, as well as local and federal courts are looking for affordable tools that can help them effectively reduce their operating costs and increase productivity.

 

The lawyers also have so much work load that they have no option but to rely and take the support of paralegals which raises their work costs and ultimately the pocket of client is affected and also the accuracy of the cases is not ensured depending on the support involved. However, researches have proved that the voice recognition technique has improved the work efficiency by manifolds. An advocate is the officer of the Court and has the duty to assist the court in the administration of the justice. Therefore, efficiency in their work leads to the efficiency in the administration of justice itself. Now, lawyers do not need to produce excuses before the court for not being prepared for the presentation of their cases. The lawyers in India can take better advantage of this computer technology and help the judicial system to regain the confidence of the people.

 

Voice  Recognition  and  the  Challenges

Speech recognition software has advanced greatly since it was first invented, but it still has several big problems that prevent it from being used exclusively as a method of transcription. Some of the speech recognition problems that are difficult to solve include variations in the speech. There also is the problem of not knowing the context of the words being spoken, which can lead to text that has no punctuation or inaccurate spellings. However, leading speech recognition tools can offer up to 99 percent accuracy right out of the box. Using specialty vocabularies can heighten accuracy even further. Some speech recognition software programs include a legal vocabulary - incorporating Latin and French law terms, reporter names, and abbreviations in addition to the standard business vocabulary - and can automatically recognize and format federal, regional, and state citations. For certain programs, specialty legal vocabularies can also be created in-house or purchased from third-party sources. Every law firm uses specific names, terminology, acronyms, or other vocabulary unique to its specialty or its client base. These unique terms are frequently used in court papers, correspondence, and other legal documents. Now, the software carries inbuilt functions customizing, modifying, editing and deleting the vocabulary causing acoustic ambiguity, which can be used as per the requirements of a particular court. Voice recognition technology in the courtroom allows real time recording of the proceedings. A fully effective digital voice recognition system would eliminate the need for court reporters to be present in court at all and the same can be had from reliable companies dealing with the same. Real time transcripts can appear on computer screens in the court minutes after the proceeding occurs. The issues of security, originality and the rectification where ever required have to be taken due care of. The proper training and skill in the usage of technology will reduce the chances of cons associated with the technology.

 

Conclusion

As a concluding remark it can be said that Information Technology has made deep inroads into the way governance is carried out in India. This impact is visible in the field of administration of Justice, with the evolution of concepts like E-Justice, E-Courts etc. However, the impact of information technology on judiciary is only structural, not normative. Information technology can help judicial process24. Computers can store the flood of past and current legal materials to permit instant retrieval. Apart from the promise of information retrieval, the mere retrieval of head-notes, extracts, summaries or full texts of judgments, statutes or legal literature, offers in calculable savings in search time. Up to this level computers can assist judicial process.

 

Foot Note:

1.   See Dr.N.K.Jayakumar, Lectures in Jurisprudence, 2nd Ed.(2006), Lexis Nexis Butterworths, p.175

2.   K.Pandurangan, “e-Justice - Practical Guide for the Bench and the Bar”, 2009 Edition, Universal, P.73.

3.   Anja Oskamp, Arno R. Lodderand Martin Apistola (Ed), IT Support of the Judiciary -Australia, Singapore, Venezuela, Norway, The Netherlands and Italy, (2004), T.M.C Asser Press, The Hague, P.l.

4.   N.Vittal, E-Courts and E-Justice, available at http: //iacits2005.iitm.ernet.in/presentations/E Courts Mr Vittal.pdf<>(visited on 30.7.2013); see also Praveen Dalai Enforcing ‘rules of justice’ through e-governance, available at http://www.egovonline.net/articles-list/45-cover-storv/3786- enforcing- rule-of-justice-through-e-govemance.html<> (visited on 31.7.2013)

5.  See http://ecourts - pms.nic.in/<> 1-8-2013; See also K. Pandurangan, “e-justice - Practical Guide for the Bench and the Bar”, 2009 Edition, Universal, p.80.

6.   e-Courts Mission Mode Project: The Journey So Far. See Supra

7.   K.Pandurangan, “e-Justice-Practical Guide for the Bench and the Bar”, 2009 Edition, Universal, P.88.

8.   Good Governance through I.C.T, (2005), National Informatics Centre (NIC), p.63.

9.   www.lobis.com.nic.in (visited on 2.8.13).

10. http://indiancourts.nic.in/courts/itiniud.html (visited on 2.8.13).

11. http://courtnic.nic.in/ (visited on 2.8.13).

12. K.Pandurangan, “e- Justice -Practical Guide for the Bench and the Bar”, 2009 Edition, Universal, pp.95-96.

13  www.judis.nic.in (visited on 2.8-.3)

14. www.courtnic.nic.in ( visited on 2-8-13)

15. http: en.wikipedia.org/wiki/Kiosk (visited on 2.8.13)

16  Ibid.

17. Good Governance through I.C.T., (2005), National Informatics Centre (NIC), P.67.

18. K.Pandurangan, “e-Justice - Practical Guide for the Bench and the Bar”, 2009 Edition, Universal, P.107.

19. www.scconline.com (visited on 1.8.13).

20. www.manupatra.com (visited on 1.8.13)2.

21. http://www.oikeus.fi/15959.htm (visited on 25th August 2013).

22. R.Rajagopal v. State of Tamil Nadu ((1994) 6 SCC 632).

23  Ibid.

24. Julius Stone, Social Dimensions of Law and Justice, 2nd (Indian Reprint) 2009, Universal Law Publishing, p.690; of Julius Stone, Legal System and Lawyers’ Reasonings, 3rd (Indian
Reprint) 2008, Universal Law Publishing, P.40.24.          Julius Stone, Social Dimensions of Law and Justice, 2nd (Indian Reprint) 2009, Universal Law Publishing, p.690; of Julius Stone, Legal System and Lawyers’ Reasonings, 3rd (Indian Reprint) 2008, Universal Law Publishing, P.40.

The  Parkway  Collision--
Extract  From  1999 (1) KLT  Journal  Page No. 8

 

(Article by T.G. John, Advocate, Trichur)

 

This happened in the United States of America. In May, 1963 the Parkway Collision was the talk of New York City. In the City’s Henry Hudson Parkway, a north bound car suddenly plunged through a six foot divider hedge, skittered into the south-bound traffic and smashed head-on into another car. All of the people in the north bound car a seven year old boy, his great-grandparents, his great-aunt and a friend of the family were killed. In the midst of a gathering crowd, Gareth Martinis the driver of the other car (a young man of 23) peered into the mangled cars and advised spectators not to move the bodies. Then he ran off leaving his car parked on a nearby exit road. He was arrested a short time later but he sullenly refused to submit to the drunkometer test. He violently grabbed a Press photographer by the throat, clawed and kicked at the police struggling to pull him away and bit a cop’s finger. Martinis was charged with drunken driving, reckless driving and leaving the scene of accident. He faced a maximum penaltyof 1500 dollars and three years in jail.

 

Gareth Martinis was the son of Acting Supreme Court Judge Joseph Martinis who had sat as a Judge since 1950 in City Criminal Court, gaining a reputation for delivering strong reprimands to careless drivers. When New York City newspapers learned about the arrangements for Martinis’ trial before the three-Judge-Panel in New York City Criminal Court they emitted growls of protest. But the District Attorney insisted that young Martinis would not get any special favour because of his father’s position. Said the D.A. “It does not matter if he is the son of a Judge, or a President or a Governor. We treat them all alike.”

 

Trial started. Two policemen testified that Martinis seemed drunk when he was arrested. But three other cops testified that Martinis appeared to be sober. During the four day hearing, the prosecution case was very badly weakened by the conflicting testimony. The three judges deliberated only five minutes to find the judge’s son innocent of all charges.

The State Department of Motor Vehicles held a hearing of its own. It found out that Gareth Martinis was arrested for speeding three times in 16 days in 1959, had once got his licence cancelled and then got it back by lying about past convictions. And the Department of Motor Vehicles dealt out the hardest punishment on him, after finding that Gareth was driving while drunk and was unsteady on his feet atleast one half hour after occurrence. It revoked Gareth’s driving license. Euqene Kramon, a Manhattan slacks manufacturer who was the only survivor of the Parkway collision, heard of the penalty and murmured “Giant Punishment” and turned twice in his hospital bed.

 

Sometimes we feel really concerned about public morality. It is our chief and indeed our only protection against tyranny and exploitation. If we could not rely on our politicians to give an honest account of their official conduct and intentions, if we could not rely on our civil servants to administer affairs impartially, if we could not rely on our Magistrates and Judges to enforce equality before the law, if we could not rely on the police not to practice torture and not to manufacture evidence, if we could not rely on the press to make an honest attempt to ascertain the facts and to report them fairly, not only should we be deprived of any control over the conduct of public affairs but we should be denied the security which is essential for our private well being. Among all forms of official wickedness, the perversions of justice outrages us most. Not that the egoism, or even the stupidity of a politician or the corruption of a civil servant may not do more harm. But we look on the law as our protection against the infringement of what we take to be our rights. Even though the laws themselves may be oppressive or discriminatory there is some safeguard in their being honesty applied. And we feel most deeply threatened and wounded when a miscarriage of justice arises out of political, racial or communal prejudice.

 

An Act of Will, Not Legal Judgement

(By V.Sudhish Pai, Advocate)

 

 The NJAC judgement is built on quicksand. It bristles with baseless assumptions, arrogant assertions and perverted logic.

 

Nowhere under the sun except in India for the last two decades do Judges appoint themselves and in a way choose their successors. The Constitution in Arts.124 & 217 vests in the President (which is a metaphor for the Union Government) the power to appoint Judges of the superior Courts in consultation with the C.J.I. That is the language and the original intendment and understanding.  By interpretation in II and III Judges’ cases ‘consultation’ was held to mean ‘concurrence’, making the President a consultee.

 

The Constitution does not envisage appointment of Judges with the concurrence of the judiciary or the collegium system. The Supreme Court innovated the apparition of the collegium wresting the power of appointments from the Executive to the Judiciary quite contrary to the plain and express language of the Constitution. This has no logical, lexical or textual support or basis. Neither II nor III Judges’ judgements has any constitutional or jurisprudential foundation or sanction. Indeed, the law laid down therein is violative of the basic structure. Making a critical appraisal of the judgements in II and III Judges’ cases, Lord Cooke of Thorndon, that great legal mind wrote two articles- Making the Angels Weep and Where Angels Fear to Tread. They speak for themselves and show how the judgements are unsupportable on principle.

 

It may not be out of place to refer to certain observations of Justice Michael Kirby: “There is wisdom in retaining a distinct role for the elected Government in the appointment of judges. The inputs of governments that change over time, and which are accountable to Parliament, into the appointment of judges, not only affords democratic legitimacy for the appointees, reflecting arguably the most precious feature of the national Constitution. It also tends to secure over time, the variety of changing values that are also reflected in the changing compositions of Parliaments and governments and in the community itself. This is not to politicize the judiciary along purely partisan lines. It is simply to reflect the reality that strongly differing views are often held in society about the kind of value judgements which such judges must necessarily invoke and apply…… To replace judicial appointments by elected politicians effectively by a system of judicial appointments selected by present or past judges severs the important link of the judges to democratic authority for their tasks.”

 

The impugned law only  sought to rectify the anomaly and restore the correct position. The present judgement frowns upon even the association of the Executive or civil society with judicial appointments. The gravitational pull of power has tried to rationalize the usurpation of the power of judicial appointments, the raison d’être apparently being the independence of the judiciary. 

 

That Judges should be appointed by or with the concurrence of judges and through a collegium is no part of the Constitution’s basic structure and certainly not  of the express constitutional provision or intent as is clear from the Constituent Assembly Debates and Dr. Ambedkar’s forceful speech on 24.5.1949 winding up the debate on Draft Art 103 which is now Art.124: “With regard to the question of the concurrence of the Chief Justice (of India) it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgement. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have ;....to allow the Chief Justice practically a veto upon the appointments of judges is really to transfer the authority to the Chief Justice  which we are not prepared to vest in the President or the Government.....and it is a dangerous proposition.”(VIII CAD 258)

 

The petitioners’ argument and the finding of the Court is that the manner of appointment of judges with primacy to the judiciary is part of the basic structure. This is not so. The collegium system came in 1993 only. Basic structure is what is contained in the original Constitution and not what is added later or what came in much later through judgements and whose correctness and legitimacy is in serious doubt. It would also mean that once a judgement is given, however erroneous it be, it cannot be got rid of. It is well known and settled that any judgement may be rendered nugatory by removing its basis. To maintain that only the collegium procedure is sound and lawful is an incestuous and self perpetrating exercise.

 

It is indisputable that independence of the judiciary is  a  basic feature of the Constitution. But the core issue is what is judicial independence.  Independence of the judiciary does not depend upon the source or power or manner of appointment of judges or on anything that happens before appointment. It is to be judged by and the test is how independently Judges behave on and off the Bench after their appointment and in their thinking and functioning. It also means independence from their own prejudices and pet notions. (See:Madras Bar Association case (2010) 11 SCC 1 (para 46)).  Judicial independence and integrity are ultimately in the minds and hearts of Judges.  Great examples of persons with political background appointed as Judges who proved their integrity and independence are the likes of Chief Justice Earl Warren and Justice Krishna Iyer.

 

Preponderance of the political element or even its exclusivity, i.e., non- consultation with the judiciary in the matter of judicial appointments by itself would not thwart or destroy judicial independence or integrity. The United States is a telling example. To say that judicial independence became real and is protected only after the collegium system was put in place in 1993 would be wholly wrong and untenable. Judicial appointments for over four decades under the original understanding of the constitutional scheme were exemplary. Those Judges were generally far more eminent and far more independent.

 

We have such stellar examples like P.B.Chakravartti, J. (Chief Justice of the Calcutta High Court) who could tell the Chief Justice of India to come to the High Court only after Court hours, S.P.Mitra, J. (Chief Justice of the Calcutta High Court) who could tell the Chief Justice of India that he (CJI) would be received by him (Mitra CJ) only in his chambers, R.M. Kantawala, J. (Chief Justice of the Bombay High Court) who could tell the Chief Justice of India that the  C.J.I.’s proposals for appointment as judges would not go through because he (Kantawala, C.J.) did not approve of them, Justice H.R.Khanna who gave his famous dissent knowing full well that it would cost him the Chief Justiceship of India,  Justice Krishna Iyer, a known leftist whose elevation to the Supreme Court did not evoke that favourable a response, demonstrated his independence and integrity when he declined to allow Shri H.R. Gokhale, the then Union Law Minister and a fellow traveller to call on him in the wake of Smt. Indira Gandhi losing the election case in the Allahabad High Court. These are but a few instances the like of which we are perhaps unlikely to come across these days.

 

The question is how much of such independence and impartiality are there today. Experience has proved Dr. Ambedkar more than right.  After all, the taste of the pudding is in the eating. How well or ill the collegium system has worked is there for all to see. It is stating the very obvious to say that the system, whatever hopes it might have generated at its inception two decades ago, and they were indeed great hopes, has failed. Hopes can be dupes as it turned out to be. The system lacks transparency, it lacks credibility. As Justice Krishna Iyer observed, “The appointments of judges end in disappointment when the instrumentality for selection and the criteria for choice are unguided and operationally shrouded in secrecy……..While the patronage of the political bosses has largely vanished, the patronage of the ‘robed bosses’ has not improved the quality of the Judges selected.” There appears to be no escape from the position that the system has to change. Just as war is too serious a business to be left to the Generals only, appointment of Judges is too serious a matter to be left to the judiciary alone.

 

That the collegium system was not challenged or  was accepted and not sought to be changed for two decades does not clothe it with constitutionality or immunize it against any change . It may be said that public response to this was enormous tolerance and patience and respect towards Judges however deviant their behaviour.  It may not be wrong to say that the judgement in 1993 came at a time when there was a lame duck Government battling against scams and a Parliament with no clear majority. They quietly allowed the naked usurpation of power by the Judiciary for which there is no warrant. The position continued for about two decades. Everyone is now wiser after the event. There has been almost unanimity that the system must change.  A political consensus emerged. The law makers stepped in with remedial measures. The Constitution as originally enacted contemplates appointments and transfers of Judges ‘after consultation’ with the judiciary.  This is with a view to uphold and protect judicial independence. And that is more than provided for in the impugned  law also which unfortunately and inexcusably  the Court failed to approve. 

 

Indeed, if the test is that Government as a major litigant should not have a say in the appointment of Judges, then it ought not to be forgotten that it is the same major litigant Government that provides Judges their salaries, residential accommodation and all other perks and post-retirement appointments. When Judges go after post retirement appointments which are given by Government and that too during their tenure on the Bench and they openly and hopefully look forward to something, that even more affects and is destructive of judicial independence. If the argument is pushed to its logical end it would even mean that the constitutional process of removal of a judge (impeachment) is also an encroachment on judicial independence; nothing could be more ridiculous.

 

Constitutionality and wisdom are not synonymous. Better measures may be possible. But when a measure is within the permissible constitutional limits it is by definition the expression of the collective wisdom of the people. As authoritatively held, what is best for the community is for the legislature to decide. The Union Parliament and the requisite number of State Legislatures unanimously passed the impugned law which does not suffer from any infirmity. Unconstitutionality, not unwisdom is the narrow area of judicial review. And any doubt, it is well settled, has to be resolved in favour of the legislation. All the more so, when it is a constitutional amendment. While even a constitutional amendment unanimously passed and ratified can be declared unconstitutional if it violates any basic feature of the Constitution, a constitutional amendment is invalidated  only when there is a palpable or shocking breach of an essential feature or the basic structure. There can be no quarrel with or criticism of the philosophy underlying the impugned law. The constitutional amendment is certainly not violative of the Constitution’s basic structure. Problems and difficulties, if any, in working it were to be addressed and the creases ironed out. The Court failed to do so.  How well or ill a system or a law works is not the test of its constitutionality. The fear of perversion is no test of power. The possibility that a provision of law may be abused does not impart to it an element of invalidity. So also the fact that a system is working excellently does not clothe it with constitutionality if it is not otherwise constitutional.

 

The majority view proceeds on the premise that judicial appointments must be by the judiciary only, that they should be insulated from the political executive, that the impugned law is insufficient to preserve the primacy of the judiciary and hence violative of the principle of the independence of the judiciary. This is its cardinal mistake. There is no warrant for this in any jurisprudential lore, constitutional principle or political theory. Neither the independence of the judiciary nor the separation of powers is infringed. Indeed the impugned law provides for a greater say for the judiciary than what was originally envisaged. Properly construed, it does not dilute the position of the judiciary or make it ineffective. It sets up a more inclusive apparatus and a more meaningful procedure.

 

Objection to the presence of two eminent persons in NJAC overlooks that they are to be appointed by the Prime Minister, the Chief Justice of India and the Leader of the Opposition. The fear that the impugned law gives a handle to any two non-judicial members to veto a name is a tenuous proposition. By the same argument any two Judges can veto. In that sense there is no primacy for any particular view. The idea of primacy of CJI or the judicial element is alien to the constitutional scheme.

 

One cannot overlook that in II and III Judges’ cases too the emphasis was upon “integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment” in which “all constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.”

 

Reference to National Commission to Review the Working of the Constitution to support the majority view  is wholly mistaken. There is nothing in that report which says the Executive should not be associated with judicial appointments. Indeed, the National Judicial Commission recommended by the NCRWC contemplates the Union Minister for  Law and Justice as a member.

 

One of the majority opinions observes that NJAC is not the stairway to heaven. Certainly it is not, and none claimed it to be. But the collegium system is a pathway to hell. Another observation that the new law reduces the President to a dummy is jejune and passes ones comprehension.

 

To think that the judiciary alone can do a good job and make correct appointments and protect our liberties is an insult to the nation and is factually incorrect and untenable. Is the judiciary really the last bastion or has it become the lost bastion ! Government is man’s unending adventure. Constitutional choices have to be made. There is need for sufficient room for trial and error. “In law the moment of temptation is the moment of choice.” The majority harkened to the shrill voices against the impugned law and yielded to the temptation of being trigger happy. Arbitrary power has been adorned with the apparel of constitutionalism. The majority view discloses a distrust for the co-ordinate wings of Government. But the implicit trust it has placed in the judiciary is utterly misconceived and misplaced. The Court speaks of parties  in power being prone to sharing the spoils. But from what is stated in some of the opinions, the public, whom the leading judgement unjustifiably despises, may be right in feeling that the members of the judiciary also share the spoils under the collegium system.

 

The Courts are authorised to exercise ‘neither force nor will but merely judgement’. Four law men have closed the debate and erected their pet theories and prejudices into legal principles and enacted their own will and vision as a matter of constitutional law. The leading judgement refers to many matters not germane to the issue and has no focus. The opinion does not have the qualities of a judgement but is more like a politician’s outburst. The insinuations at the entire political class as also comments against the civil society apart from being in very bad taste  are wholly unwarranted and incur the criticism of being puerile. The opinions are couched in a style that is as pretentious as its content is egoistic. They are not conspicuous for any sound legal reasoning or profound constitutional philosophy. “A judge who announces a decision must be able to demonstrate that he began from recognised legal principles and reasoned in an intellectually coherent and politically neutral way to his result.” The majority decisions are not distinguishable for this approach. Well accepted notions of constitutional law and canons of constitutional interpretation have been thrown overboard. The majority failed to heed the earlier admonition of the Court that “in judging constitutional validity of a constitutional amendment the Court may not make surmises on ifs and buts in reaching the conclusion of unconstitutionality.”

 

The legitimacy of the Court ultimately rests “upon respect accorded to its judgements.” That respect flows from the perception that judges exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority is anything but that. The Court’s deference to those who have the responsibility of making laws has great relevance. “The legislature after all has the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct and when to this is added the number of times that the Judges have been overruled by events – self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.” The attitude of judicial humility is not an abdication of the judicial function. It is a due observance of its limits. The majority has totally disregarded this profound truth. The impugned law was a step in the right direction but the Court missed the opportunity and betrayed itself into a grievous and unforgivable error. It is a typical example of  what Justice Frankfurter called ‘the Court indulging its own will.’ The majority decision is an act of will, not legal judgement.

 

The minority view is characterised by compelling logic and robust realism. It reveals the sorry but true state of affairs of the system. The dissenting judgement bemoans the transfer of dependence from the political to the judicial hierarchy and the so called judicial independence being a myth and a euphemism  for nepotism enabling, inter alia, promotion of mediocrity or even less. It has been truly observed : “The assumption  that the primacy of the judiciary in the appointment of Judges is a basic feature of the Constitution is empirically flawed....That the judiciary alone does the job well is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved.....To wholly eliminate the executive from the process of selection would be inconsistent with the foundational  premise that government in a democracy is by chosen representatives of the people.” Further it is rightly pointed out that the basic feature of the Constitution is not the primacy of the judiciary in appointing Judges but lies in non-investiture of absolute power in the executive to choose and appoint Judges of constitutional courts. This is commendable and reflects the correct approach.

 

The anguish is shared even by one of the majority Judges who denounces the collegium system as being wholly unwholesome ‘resulting in unmerited if not bad appointments.’ Yet, he also joins in invalidating the law and in reviving what he condemns.

 

The proposition and finding that the collegium system will revive is of doubtful validity. The Court has posted the matter for further  hearing to see how best to improve the system. The judgement itself being erroneous and unsupportable, this exercise also is equally bad and self serving, particularly when the judges’ attitude is one of omnipotence and omniscience. However, in the circumstances the best option appears to be to judicially incorporate into the system the recommendation of the NCRWC (Venkatachaliah Commission) in that behalf
(para 7.3.7 ) of which  even the petitioners are votaries. A sense of propriety and wisdom should dictate such a course. It is an opportunity for atonement and to retrieve some lost prestige. That will lend some credibility to the system and to the judges.

 

It is appropriate to recall the Supreme Court’s observation that judges have to solemnly remind themselves of the words of the historian of the U.S. Supreme Court –Charles Warren: However the Court interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the Court.

 

There may be many who may hail and celebrate this verdict as a vindication of the independence of the judiciary. But surely this is only the achievement of a desired goal. It has nothing to do with the Constitution or the independence of the judiciary. The Court has also to be free from the Judges. The nation will regret tomorrow for what the Court has done today. The majority decision is one of the great disservices to the nation and the Court itself.

 

Supreme Court Judgment on NJAC

(By Justice K.T. Thomas, Former Judge, Supreme Court of India)

 

This is an unfortunate judgment. I feel that the Supreme Court missed a golden opportunity to correct the earlier error in judicially creating an unparallel mechanism for appointing Judges by Judges themselves. The Parliamentary amendment for undoing the error could have been saved by the Supreme Court. Look at the background of the Constitutional amendment. It was felt almost unanimously that the collegium system is studded with flaws like subjectivity, partiality and lack of transparency. Some of the most eligible persons could not get into both levels of the court (High Court and Supreme Court) as they were not inclined to do any lobbying work. In fact, the two jurists Fali S. Nariman and J.S.Verma, who were principally responsible for evolving the collegium system, stated subsequently that they did not anticipate so much flaws for the system. Nariman went to the extent of saying that he would have prepared to have lost the case which he won in formulating the collegium system.

 

In fact, F.S. Nariman pleaded with Justice M.N.Venkatachaliah Commission, which was appointed for suggesting reforms for the Constitution that a National Judicial Commission (NJC) should be a part of the recommendations of the committee. Almost all the doyens of the legal fraternity welcomed the proposal made by the Justice M.N.Venkatachaliah Commission for creating National Judicial Commission in which both the Executive and the civil society should also be involved along with Judges.

 

One should not ignore the fact that the Constitution Amendment was passed by both houses of Parliament with near hundred percent unanimity and got the approval from 28 State legislatures. It is one of the rarest events in our Constitutional history to have such unanimity by all the members of Parliament who voted. According to me, such a Constitutional provision should not have been struck down merely because the executive is also given a say in the matter of selection of justice. The presence of two eminent citizens in the selection process should have been welcomed by the Judges, particularly when they were chosen by a collegium consisting of the Chief Justice of India (C.J.I.), leader of the House, and leader of the main Opposition party. The majority decision of the five Judge Bench, reflects a craving of the Judges to arrogate to itself the power of appointment. In my view it was not palatable to a Constitutional democracy.

 

I had been a member of the Collegium at the High Court level and at the Supreme Court level. From the past experience I would welcome the minimal participation of a member from the executive and also the civil society in the selection process to avert unworthy persons sliding in.

 

The very fact that one of the senior Judges of the five Judge Bench in the present case advanced very sturdy and valid points for holding that the Amendment was not vitiated by any virus, was enough not to throw the Constitutional provision overboardon the mere assumption that such minimal involvement of executive representative and civil society would vitiate the selection.

Independence of Judiciary, which is highlighted in the majority judgment as impaired by the amendment, should mostly dependent on the function of the Judges during the post appointment stage, and not in widening the scope of pre-appointment deliberations.

 

Political background of persons to be considered for judgeship should not be treated as disqualification. Such persons have closer association with the people at different levels and they know the pulse beat of persons suffering from social injustices. In fact, history of our judicial development during the post-Constitution period, shows that the great expansion of Constitutional philosophy was contributed, among others, by judgments rendered by those Judges who had background in political activities.

 

It is to be remembered that the clamour for replacement of collegium system did not come first from politicians; it was from the legal community as instances of faulty selections did not remain sparse, but was on the increase. The possibility of using veto by two persons in the NJAC seemed to be over emphasized by the majority judgments of the Supreme Court. We may bear in mind that Vetoing is not for appointing, but for preventing the appointment of persons whom the non judge members consider unworthy. Though Judges are better persons to discern the legal acumen of the candidate, I feel that non-judges are better persons to know all the other aspects of a candidate. Is it not advisable to use such sources also to decide on the suitability of the candidate. There is no conception that Judges are infallible. Even in judicial exercise the scope of fallibility of Judges is not in minimal dimension. If judges can be fallible in making the selection of Judges, can anyone say that they be eliminated from the selection process? On the same logic the possibility of eminent citizens wrongly vetoing is not enough to keep them out.

 

The concept of NJAC was initially formulated not by the executive but by a committee of Judges and Jurists (eg. Justice M.N. Venkitachaliah Committee for Constitutional Reforms). In fact, the impugned amendment was made after further improving the proposal through parliamentary deliberations, eg. when Lok Sabha passed the Amendment Bill, it said that only a unanimous decision by the commission will bind the President of India. When the Bill reached the Upper House, the members pointed out the possibility of occurring repeated statements whenever unanimity could not be achieved. Hence the word unanimous was replaced by “majority” in the final shape of the Bill.

 

In my view the five Judge Bench of the Supreme Court failed in two aspects: (1) a matter involving such momentous importance supported by the entire Parliament and the entire federal units of the Republic, should have been referred to a much larger bench, at least as large a bench as that which formulated the collegium system. May we remember that even an issue concerning education was considered by a bench of 11 Judges of the Supreme Court in TMA Pai case. (2) Every endeavour should have been made to protect the people’s verdict reflected in the Constitution amendment by a process of reading down the doubtful clauses either restricting or expanding its scope through the interpretative process as was done by the Supreme Court in the case dealing with Article 21 (Maneka Gandhi case), Article 356 (SRM Bommai case) Article 15 (Mandal case, in which the theory of Creamy layer was evolved).

 

Musing on Case Presentation -- VII

 (By Dr. K.B. Mohamedkutty, Senior Advocate and Former Law Dean)

 

An advocate is hired for championing the cause of justice for his client. A splendid engagement indeed, but he has a duty to be worthy enough for the task. The belief that argument is easier than the toughness of drafting is a fallacy to which most people mistakenly assent. The arguing Counsel must secure a variety of skills flowing from brilliant head to think, spontaneous tongue to articulate, shrewd sense of planning and pleasing dispositions. He must hit back attack from the other side like a boxer’s punch, without deviating an inch from professional ethics. He must choose the safest mode of argument. When a case is entrusted with the lawyer what he gets from client is only raw-materials of the case. He has to build up a beautiful structure with them in his own way, as an architect does with bricks, mortar and his prolific imagination.

 

Models and Models

An eagle flies across the sun seeking its nest; a lawyer undertakes a rescue operation to save his client from distress. The argument is like swimming in the sea. One has to jump into waters and face huge hostile sea waves of counter arguments unleashed by the opposite side. To which side he will fall is uncertain. If he is not vigilant, he becomes almost like a fly caught in the spider’s web. He must float himself on the surface of water, never allowed to sink. However, there is no use in babbling or repeating. Be precise and resourceful. There is no universal standard for good argument.

 

The style of argument is as numerous as lawyers. When all good elements are present argument becomes thrilling which may even stir up blood flowing through the arteries of listeners. It sheds beacon light removing darkness around the dispute. However, when facts are bad argument becomes feeble. The contention raised by the opposite side may appear to be innocuous like a serpent’s egg which may turn mischievous later; it is necessary “to kill them all in the shell, rather than allowing them most free.”

 

There are arguments which unleash forces of Tsunami, submerging shores of legal landscape. Some arguments are like cool sea breeze. Some are like acid which burns, though appear to be harmless. Some are like well-tempered Spanish sword with double edges and suited for striking and pushing. The argument falls flat if it is mere assertion, without substance. Each lawyer develops his own style inter-mixing facts and law in an excellent blend. Facts are primary and it is rightly said that law will sprout from facts and turn its branches towards the light. There are arguments which are tedious in the beginning and yet turn to be good at the end. Several young lawyers are able to present the case impressively with stuff of law. Whatever be the style, the arguing counsel should not be like a ship in the mid-sea not knowing its destination.

 

All are not blessed with fine vocabulary while arguing the case and yet they impress the court wonderfully. Sir Jamshedji Kanga, the renowned senior of Nani Palkivala was a great lawyer and author of reputed legal works. He was Advocate-General of the Bombay High Court for many years. He argued cases with gestures. To him gesture was as good as fine vocabulary. His admirers stated that he sifted the chaff from the grain within the short time. He had no anxiety which is a hurdle on the way of presentation. Bhasyam Ayamgar was Advocate General of Madras for two terms. He was the first Indian to hold the post. He became later a Judge of the Madras High Court. His argument was slow and often halting, but at the same time precisely calculated to drive the Judge to his side. It is said that his slowness was to study the mind of the Judge. He cultivated a habit of thinking on his legs as he was endowed with a capacious memory.Lawyers argue adopting different body styles, some pushing their hand in all directions. Generally lawyers restrict movement to the tongue. A rare category with remarkable memory never opens up the bundle. But none can say what kind of argument will bear fruit.

 

A New Perception

The argument should be anchored not only on law but also on exemplary presentation. According to M.S.Menon, former Chief Justice of the Kerala High Court, there is always a breath of fresh air in the manner of presentation. It opens up many windows and expands new horizon. Yet another view is that it should not be more assertive than explorative. At the same time, it is an art like music and poetry.

 

As knowledge is in your finger tip today, what is needed most is not the knowledge as such, but the key to knowledge as no one can store the whole knowledge. It is not advisable to learn argument in a manner one prepares for examination. It will create trouble in delivery point. There is nothing wrong in thinking about substance or even the mode of expression beforehand. The argument crumbles like clay, if there is no homework behind it and if it provides more heat than light. Don’t create an impression that you are empty. Every argument may have stump and root. The stump may die, but root sprouts like young plants. The counsel must consider the grasping capacity and velocity of thought process of the Judge. Explain with confidence points in a manner appreciable to him. Don’t lose your balance on the run way of argument. To increase confidence think in law and think as far as possible in a way that no other lawyer or Judge has even thought of about the particular aspect of law which came up for your contemplation. If you get a new perception, it is worthy. There is creativity in it. It takes you up in the sky of law.

 

Importance of Voice Control

Blessed are those who are born with pleasing voice. It has effect on the nerve of the hearer. We come across a variety of voices: Each person has distinct voice: for example, high pitch, low pitch, rhythmic, harmonious, melodious, passionate, dispassionate, pleasant, sharp, strenuous, ringing, moderate and the like. Voice should not be discordant, according to Lord Denning. Jawaharlal Nehru writing from prison to his daughter observed that Gandhiji had a wonderful voice: “it was quite and low and yet it could be heard above the shouting of the multitude. It was soft and gentle and yet there seemed to be steel hidden away somewhere in it. It was courteous and full of appeal.”

We must remember that even the wall of the Court has ears. When a lawyer is anxious to win, naturally the pitch of his voice may go high. It takes time to control this. Generally speaking, Judges prefer hushed voice but audible enough. It is necessary to make argument audible enough. However, argument before court cannot be like platform oratory for getting applause. It is to persuade. Argue with earnestness even if the Judge sits with half an ear. The argument from the opposite side may at the first blush appear to be straight, plain and innocuous, but it may hide unspoken danger.

 

Vocabulary and Body-Language

 Arguing is a journey through facts and the law. Even if the road is not worthy enough, we have to reach the destination. Fear of poor vocabulary consumes lawyers generally. This is baseless anxiety. Even Bernard Shah, who was a best speaker, was not free from fear complex when he participated in debates. He says:

 “I suffered agonies that no one suspected...My heart used to beat as painfully as a recruit’s going under fire for the first time. I could not use notes; when I looked at the paper in my hand I could not collect myself enough to decipher a word. And of the four or five points that were my pretext for this ghastly practice I invariably forgot the best.”

Etymological experts count about fourteen thousand words in common usage in English language. Every year some new words are added to the language as it absorbs words from other languages. We need not be bothered about such additions. The dictionaries give more than three lakhs words as they give derivatives of the same word. Shakespeare wrote thirty-eight plays, l44 sonnets, and two long narrative poems. He used only fifteen thousand words. Milton used only eight thousand words. With short vocabulary great writers gave us marvelous creative works. The Bible which is considered as a great piece of literature as well, contains only six thousand words. A peasant in English countryside manages with three hundred or four hundred words. There are speaking vocabulary, reading vocabulary and writing vocabulary. Likewise, there are legal vocabulary and a variety of legal maxims.

 

Arguments are compared to flowers of mango tree; only few of them fructify. A long line single argument is like a palm tree. It may bear fruit. But when it is cut down at some point of its growth, it is the end of it. But there are arguments like a tree with branches; it continues to survive even if it is cut down. With substance in argument, style becomes simple, lucid, energetic and vital. Cervantes, the author of Don Quixotic, in the preface of his classic work gives the following advice: “Do but take care to express yourself in a plain, easy manner. Give a harmonious turn to your periods.” Ben Jonson stresses the need for lucid style and says that sometimes words borrowed from antiquity or classics do lend a kind of majesty to style. The authors who write books or articles have enough time to choose words. When they write there is nobody to watch them. They get sufficient opportunity to beautify their expression or idea. But an Advocate who argues before Court performs in the open and within short time. He does not get time to sharpen the expression.No other creative work is open to such public gaze. He fights straining every nerve, unembarrassed by any situation.

 

 Brandies’ Brief

The war between lawyers in court is a war between ideas or war between competing interests. Law used in the process is a precise science like mathematics. There is no scope for loose thinking. The lawyer should not act like a tragic hero in Greek drama. He should be inquisitive like dog’s nose to discover new smell of ideas around. Supplying of evidence in large volumes as part of argument which is called, “Brandies Brief”. Brandies was a great lawyer in the U.S. Supreme Court. In a case, he was arguing that long hours of work are dangerous to women’s health and short hours result in social and economic benefit. To support his case he presented enormous materials drawn from hundreds of Reports and Statistics from socio-economic sectors. The argument was too short, but the materials ran to several documents collected. The time granted for argument in Federal Courts in the USA is fifteen minutes after submitting written hearing notes. The U.S. Supreme Court allows only thirty minutes for argument.

 

We are disappointed when relevant point is rejected by the court without fair consideration, but the rejected point sometimes becomes acceptable in later case. After every argument the counsel feels that something remains unsaid. Law is a jealous mistress with unquenchable thirst for innovation.