Administration of Justice on Fast Track*

(By Dr. Manmohan Singh, His Excellency, The Prime Minister of India)

I feel privileged to be once again at this very important conference of Chief Ministers and Chief Justices of our High Courts. These are important and useful opportunities for representatives of the executive, the legislature and the judiciary to interact, both formally and informally. Apart from discussing various issues on the agenda, I hope each one of you will use this opportunity to gain a better understanding and appreciation of the others’ concerns and preoccupations. In this way this conference would be an important asset in mutual comprehension. Unless the three wings of the State understand each other better, they will not be able to function effectively in the interests of our nation and our people at large. The three wings have well-defined roles and functions under our Constitution. However, all the wings have a common goal which is the fulfilment of the hopes of the Founding Fathers of our Republic and as spelt out so clearly in our magnificent Constitution. Therefore, conferences such as these give us an opportunity to discuss contemporary issues which have a bearing on the organs of the State, particularly those issues where the interface between the organs is large.

In last year’s conference I had an opportunity to share some of my views on judicial reforms and e-governance. Our Government accords high priority to judicial reforms. The National Common Minimum Programme envisages judicial and legal reforms as one of the thrust areas in promoting good governance. In that direction, my Government has already undertaken certain initiatives. It has amended the procedural laws with a view to improving the criminal justice system. Plea bargaining has been introduced in the Criminal Procedure Code. I must place on record here my very sincere appreciation of the fulsome support and co-operation our Government has received from the leadership of our judiciary in this regard. Both former Chief Justices of the Supreme Court and the present Chief Justice have shown great commitment to judicial reform and I thank them for this.

Our Government places special emphasis on professionalism in investigation and prosecution as well as providing protection to our citizens, particularly women, against arbitrary harassment from the police. There is a Bill now before Parliament that seeks to amend the Criminal Procedure Code to deal with the problem of witnesses turning hostile. It also seeks to provide legal rights and compensation to victims. It will also facilitate the use of modern techniques in investigation. The Bill will make summary trial mandatory in cases with imprisonment up to 3 years.

There are a few issues, which have been flagged for this conference. The most important issue is that of pendency and the growing backlog of cases in courts. In spite of efforts having been made and being made, and support provided by the Government, it is a matter of concern that there are huge arrears of more than 2 1/2 crores of cases in courts. Over 2/3rd of these are criminal cases. While there has been some progress in reducing pendency in superior courts, the position in subordinate courts has hardly shown any improvement. I have been told that the number of fresh cases is generally more than the number disposed of in a given period of time. Unless the rate of disposal improves, the backlog would keep mounting.

Therefore, there is an urgent need to improve the throughput of cases.

We are a country—we take pride in being governed by the rule of law. If the rule of law has to become a living reality, these delays and these arrears have to be effectively curbed.

An important factor causing pendency is the number of vacancies that presently remain unfilled in the subordinate judiciary. This is one area where the States and the High Courts have to come forward and execute and implement a time-bound exercise for filling up vacancies. I am sure once the unfilled vacancies are filled up there would definitely be reduction in the arrears.

I would also like the learned judges to consider another suggestion for increasing the disposal of cases. Courts may consider having more than one shift. You are also aware of the Government’s interest in speeding up the process of computerisation and e-enabling our courts. A massive exercise has been taken up to computerise all the district and subordinate courts of the country, linking them with the highest court. The first phase of this exercise is to be implemented very soon. I sincerely hope computerisation will help our courts reduce pendency. 

Fast Track Courts are another answer to dealing with the problem of arrears. Though the initial scheme of fast track courts was to end in the year 2005, our Government has extended it to the year 2010, providing Central support to the States. The Government has provided Rs. 509 crores for this purpose. I have been, however, informed that receipt of utilisation reports from the States in this regard is not very satisfactory and hence, there are delays in disbursal. I sincerely hope the State Governments will take note of this and speed up procedures to ensure smooth flow of Central assistance for this very important purpose.

Fast Track Courts have reportedly established a good track record. Your conference theme is Administration of Justice on a Fast Track. I hope your deliberations will help further strengthen this track in our justice delivery system. I look forward to learning about your deliberations. I am sure that under the leadership of the Hon’ble Chief Justice of India, Justice Shri K.G. Balakrishnan, we will see the issues raised at this conference being addressed by our highest judiciary. I know that Justice Balakrishnan is committed to the reform and modernisation of our judiciary. During his term of office, I sincerely hope and trust, many new initiatives will undoubtedly be taken to provide relief to the litigants and the faith of the people in judiciary will be reinforced and strengthened.

I am happy to say that our Government has been able to extend support to the judiciary by investing more in the development of judicial infrastructure. As my colleague Shri Bhardwaj mentioned, a ten-year perspective plan has also been drawn up for construction of court buildings and residential accommodation for judges. This plan is based on inputs provided by the State Governments. We are also discussing this matter with the Planning Commission for deciding the outlays for this purpose during the Eleventh Plan.

Another important issue that requires your attention is the setting up of Family Courts. I am informed that in a number of States, Family Courts have not yet been set up in accordance with the provisions of the Family Courts Act, 1984. I sincerely hope these Family Courts will be set up at the earliest.

I do sincerely believe that the judiciary, the executive and the legislature have an obligation both to our Constitution and to our people, to work in harmony. Each one of these organs of the State have an important and vital role to play in improving the welfare and well-being of our people. Each one of the organs have their constitutionally assigned roles and responsibilities, and these must be discharged in all honesty. Each organ must respect the roles and functions of the other. Powers accorded to each organ must be exercised cautiously.

In the context of judicial reform, the primary obligation is to enforce the rule of law, uphold the Constitution and enforce the discharge of obligations by any authority of the State. This confers enormous powers on our judiciary, rightly so. But at the same time it also involves enormous responsibility—in the exercise of these powers. Courts have played a salutary and corrective role in innumerable instances. They are highly respected by our people for that. At the same time, the dividing line between judicial activism and judicial overreach is a thin one. As an example, compelling action by authorities of the State through the power of mandamus is an inherent power vested in the judiciary. However, substituting mandamus with a takeover of the functions of another organ may, at times, become a case of overreach. These are all delicate issues which need to be addressed cautiously. All organs, including the judiciary, must ensure that the dividing lines between them are not breached. This makes for a harmonious functioning.

So is the case with public interest litigation. PILs have great utility in initiating corrective action. At the same time, PILs cannot become vehicles for settling political or other scores. We need standards and benchmarks for screening PILs so that only genuine PILs with a justiciable cause of action based on judicially manageable standards are taken up. This will also ensure consistency in judicial pronouncements. The Supreme Court could take the lead in framing rules in this regard.

Conferences like these can play a very important role in helping us understand each other better and work together in the discharge of our respective duties. I hope it is in this spirit that these proceedings will be conducted. I wish you all success in your endeavour. I thank you. 

* The Prime Minister, inaugurated the Conference of Chief Ministers and Chief Justices of High Courts on Administration of Justice on Fast Track on 8-4-2007. The Chief Justice of India, Hon’ble Mr. Justice K.G. Balakrishnan, Justices of the Supreme Court, the Union Minister for Law and Justice, Mr. H.R. Bhardwaj, Minister of State for Law and Justice, Mr. Venkatapathy, Chief Justices of the High Courts, Chief Ministers of the States were among the dignitaries who participated in the function. 

Debtor Defeats Surety

(By S.A. Karim, Advocate, Thiruvananthapuram)

In a legal borrowing there are minimum three parties, creditor, debtor and surety. With solvent sureties a debtor can secure loan either from government schemes, financial institutions, semi-government and government controlled institutions. Private party uses the same principle in lending and borrowing.

The liability of debtor and surety is joint and several. It means creditor can realise the principal amount and interest either from the debtor or the surety or both. This is the law on the point. Section 128 of the Contract Act, 1872 reads :-

"The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract."

This is the most abused and misused section in a loan transaction. Under this section, the surety cannot say, realise the amount from the debtor first and then turn against surety. The choice is with the creditor.

Using this legal position, clever debtor escapes liability and it becomes a death knell to the surety. In all the borrowing the beneficiary is the debtor and the surety is the name lender. But in effect the surety becomes the principal debtor because the liability is joint and several. The section is not expected to benefit one and defeats another. So, the law of joint and several liability must go lock, stock and barrel. The debtor has to be fixed for the liability he makes.

ON CONTEMPT OF COURT

(By Justice K.P. Radhakrishna Menon)

The Contempt power is both salutary and dangerous. As Stephenson LJ. Said: “salutary, because it gives those who administer justice the protection necessary to secure justice for the public; dangerous, because it deprives a citizen of the protection of safeguards considered generally necessary to secure justice for him”. Great Judges therefore have consistently said: Lord Goddard, “the contempt power is a power which a Court must, of necessity, possess; its usefulness depend upon the wisdom and restraint with which it is used”. This wise advice of Lord Goddard if ignored, will result in the degeneration of this power “into an oppressive or vindictive abuse of the Courts power” as stated by Lord President Normand.

The Contempt jurisdiction meant to prevent interference with the due administration of justice is a very important part of our Constitution. Articles 129 and 215 speak for it. These provisions have declared that The Supreme Court and The High Courts are Courts of record; and that, being Courts of record, they have all the powers found in a Court of record including the power “to punish for contempt of itself”. But for these special provisions (Art.129 conferring power on the Supreme Court and Art.215 on The High Courts) neither The Supreme Court nor The High Courts could have punished the condemner without a regular trial following prescribed procedure.

This summary power, it shall be said without fear of contradiction, has made inroads into the doctrine of Rule of Law, the basic structure of our constitution. It is trite knowledge that this doctrine of Rule of Law takes in its fold the fundamental rule in the administration of justice namely, that a person cannot be judge in a cause wherein he is interested i.e. (Nemo Debet Judex in Propria Sua Causa). This rule is termed by jurists “a fundamental rule of reason and of natural justice”. The doctrine of Rule of law comprising the above fundamental principle has been explained by Wade thus: “It means the absence of arbitrary power ................ particularly when it imposes penalties,........... that, private rights should be determined by impartial and independent tribunal and that fundamental private rights are safeguarded by the ordinary law of the land”. In the opinion of the Supreme Court, “Law in the context of the rule of law does not mean any law enacted by the legislative authorities, however arbitrary or despotic it may be..... what is necessary element of the rule of law is that law must not be arbitrary or irrational but it must satisfy the test of reason and the democratic form of the polity seeks to ensure this element by making the framer of law accountable to the people”. The celebrated philosopher - administrator Dr.Radhakrishnan says that “Even Kings are subordinate to Dharma, to The Rule of Law”.

On a close scrutiny of Articles 129 and 215, it shall be opined that the Constitution has empowered The Supreme Court and The High Courts to ignore that part of The Rule of Law namely that “a person cannot be the judge in a cause wherein he is interested” and “punish for Contempt of itself". Briefly stated, these provisions place The Supreme Court and High Courts above The Rule of Law in the circumscribed situation highlighted therein just like Art.361 placing The President and The Governors above the Rule of law, by providing personal immunity from certain legal actions. Be that as it may. 

Now coming to The Contempt of Courts Act: on a study of this statute, enacted by Parliament under Art.19(2), it can be seen that the Parliament has bodily lifted and incorporated the summary power under Articles 129/215 and empowered The Supreme Court and the High Courts to ignore the fundamental principle that no person shall be judge in a cause wherein he is interested while trying Contempt Cases other than those mentioned in Articles 129/215. Here it is relevant to keep in view the difference between the Contempt proceedings contemplated under Articles 129/215 and contempt proceeding relating to contempt committed outside the Court premises.

Articles 129/215 are meant to cover “Contempt in the face of The Supreme Court and High Courts” which may be said to comprise; unlawful interruptions, disruption or obstruction of Court proceedings etc. Such conduct can take a variety of forms: hurling insults or objects at the Judge, refusing answers to questions in Court. It is to punish Contempt in the face of the Court instantaneously Articles 129/215 have conferred on The Supreme Court and The High Courts the summary power. The contempt noticed in these provisions is, the Contempt in the face of the Court, is clear from the phraseology “punish for contempt of itself”.

It therefore follows that contempt of general nature committed outside the courts, cannot be punished in exercise of the summary power, Such cases shall be tried and disposed of in accordance with the procedure and the fundamental principle that no person shall be Judge in a cause wherein he is interested, governing criminal cases. Nonetheless contempt proceedings related to contempt committed outside the court, are being tried and punished in a summary manner as The Contempt of Courts Act has made inroads into The Rule of Law and the fundamental Rule mentioned supra. It is by now well established that Acts passed under Art.19 (2) shall not defile or deface the rules ingrained in The doctrine of Rule of Law. Such laws shall necessarily safeguard the fundamental rights guaranteed by The Constitution.

Not only that, as held by the Supreme Court (Maneka’s case) to deprive a person of his life or personal liberty guaranteed under Art.21, the statute shall prescribe a procedure which is reasonable, fair and just for the purpose of trying a case. The Apex Court while restating this salutary constitutional principle has further declared that such laws shall not be arbitrary, whimsical and fanciful.

The Constitution being the fundamental law of the Nation, according to the Supreme Court, is the fountainhead of all the statutes. The Constitutional provisions, particularly the preamble which, the Supreme Court has found to be part of The Constitution, the provisions defining the fundamental rights and duties and the directive principles therefore shall be deemed to be part of every statute enacted by The Parliament and The Legislatures.

No contempt proceedings can therefore be initiated under The Contempt of Courts Act, which has not prescribed any procedure, consistent with The Rule of Law; “no person shall be Judge in a cause wherein he is interested, enabling to defend the charges on the ground of justification by truth; and no independent Tribunal also is constituted,” ingrained in Art.21. These are crucial omissions on the part of The Parliament, which make Contempt of Courts Act unworkable. The oft quoted dictum of Lord Dunedin (noted and approved by The Apex Court) “A statute is designed to be workable and the interpretation thereof by a Court should be to secure that object, unless crucial omissions or clear direction makes that end unattainable” is relevant in the context.

No doubt by a recent amendment provision apparently enabling a condemner to set up ‘justification by truth as a defence is incorporated’ in” The Contempt of Courts Act. Even a casual probe into this provision would make it clear that the provision is just a camouflage because only with the permission of the Judge this defense can be raised.

The discussion of the legal principles makes it clear that it is imperative that The Contempt of Courts Act shall be amended and provision containing the procedure, which is fair, reasonable and just, within the meaning of Art.21 which has as its foundation in Rule of Law, are incorporated. The Parliament shall take special care to constitute an independent Tribunals to try Contempt Cases other than those that come under 129/215.

The independent tribunal shall consist of three members; one representing The Supreme Court and High Courts, he shall be a former Chief Justice of India; one representing the public, he shall be an apolitical legal luminary of accredited character and the third one representing the legislatures - preferably a former Attorney General, or Solicitor General. The President of India shall appoint the members in consultation with The Chief Justice of India. The Chairman shall be the former Chief Justice of India. This Independent Tribunal shall have camp sittings. Whatever that be, till the procedure for trial of Contempt cases is prescribed, no Contempt Case other than cases coming under Articles 129 & 215, can be initiated.

These changes are essential to sustain the confidence of public in the judicial system established by our Constitution. 

Courting a Strange Predicament 

(By Kaleeswaram Raj, Advocate, Ernakulam)

A lawyer who performed too well for his client was jailed for that reason, during the French revolution. This is what Jacqueline Donnelly said in her short account of the ‘palace of justice’ in Paris. It was an 18th Century episode. A strange remnant of pre democratic vintage.

This year, a lawyer in Kerala was put to a stranger predicament. It occurred in the court of the 1st Class Judicial Magistrate, Chittoor. An application for bail was moved on behalf of an accused in an abkari case. The accused was denied bail and remanded in jail. However, the man soon escaped from Police custody. Thereupon the lawyer who moved the bail application was remanded in jail. An application for bail was moved on 13th of April, the date of remand itself. For taking a decision in the application the Magistrate took four days and ultimately the bail was denied.

This incident reflects the nature of our justice delivery system at the lower level. The accused escaped from the police custody, and in the words of the Magistrate, “there was failure on the Head constable’s part”. But the constable was spared and case was registered against the lawyer !. The offences alleged are under Sections 224, 225, 120(B)(1) r/w S.34 of IPO. Again, the District Sessions Judge did not take a prompt decision on the application for bail filed by the lawyer. Ultimately, justice K.T.Sankaran of the Kerala High Court intervened and passed an order on 19.4.2007 directing release of the lawyer.

I do not propose to deal with the sustain ability of the allegations against the counsel. The Magistrate order ran to 6 pages, there were sentences on the commission of offence and the eligibility of the accused for leniency’. The Magistrate, took himself as a centre of power, where the accused should pray for ‘mercy’. It is a well known principle of adversial practice that while deciding the question of bail, the court should not enter a finding regarding the guilt or otherwise of the accused.

The High Court convened a special sitting to undo the injustice. It said that “it is interesting to note that no case has been registered against the police constables who are primarily answerable for the escape of the accused”. The Court took note of the submission that the only material for the Magistrate was the testimony of the police. Advocate’s robes were seized as material objects in the case; the High Court said that it was unusual. It also directed transfer of the case from the present court.

This is what the Magistrate said in his order-

“In any view of the matter, the alleged facts show that he has intentionally aided the rescue of the 1st accused”. 

Thus allegation becomes the proof.   It becomes ‘finding’.   Even Iraq under Bush or Taliban under fanatics were unfamiliar with this kind of ‘judicial’ reasoning. 

The Magistrate further said -

“ The allegation that this petitioner had received a mobile call immediately before the escape of the 1st accused and immediately after the receipt of such call he had told something to the 1st accused and 1st accused had run away and the further act of the petitioner herein going away as if nothing had happened is a very grave allegation”.

Again, allegations and findings are recklessly mixed, by doing violence to law and language. 

The entire judicial action is based on a statement given by a Head Constable. Another circumstance to presume the guilt of the lawyer is that “he (the advocate) is said to have been present in court premises”. Brilliant reasoning, indeed !

The manner in which the Magistrate has dealt with the case shows the negation of Article 22 of the Constitution which says about the right of an arrested person to consult the lawyer. The order also ignores the spirit of Section 126 of the Indian Evidence Act which talks about the confidential nature of professional communication. (“ The counsel had told something to the 1st accused”, the Magistrate said).

If this is how a lawyer attending the criminal court is dealt with, the unreported and unnoticed predicament of the ordinary people at the mofussil level is a matter of concern. There is no evaluation or criticism regarding the way in which the lower judiciary functions. It should be ensured that navity is not celebrated in the court of initial jurisdiction, at the cost of the public.       

Mr.Haridas is more an illustration, than a victim. It is not the lawyer, but individual liberty and professional freedom, that are jailed. It is high time that the day to day function of lower judiciary is put to administrative and judicial scrutiny.

The High Court, in a recent decision in Biju S.Praveen’s case, 2007  (2) KLT 280, held -

“criminal courts should always be careful while passing orders on bail applications which in effect deal with personal liberty. In cases where the court decides to send an accused to custody pending trial, it must be ensured that the court applies   its   mind  judicially   and judiciously  with  particular reference to the facts and circumstances of the case............ The bail application moved has to be considered and orders should be passed on the same day itself since personal liberty of an accused cannot be curtailed in a whimsical or disdainful manner.

“The above observations have been made to alert the subordinate courts to ensure that the accused in criminal cases are not condemned to custody as a matter of course without a proper application of mind. Judicial process has to be blended and tempered with humaneness. Personal liberty guaranteed to every citizen has to be respected”. 

The above judgment was published in Kerala  Law Times dated April 23, 2007.

Liberty has become a causalty. Jail is the rule and bail, an exception.  Lawyers too are not exceptions.