1999 Indian Judiciary in 21st C - A.S. Anand

The Indian judiciary in the 21st century
Author(s): A.S. Anand

Source: India International Centre Quarterly, Vol. 26, No. 3 (MONSOON 1999), pp. 61-78
Published by: India International Centre
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A.S. Anand
Indian
The
judiciary
in the 21st
century
feel privileged to have been invited to deliver this lecture in the

memory of Shri Dashrathmal
Singhvi, once a leading civil lawyer
in the princely state of Jodhpur, and the scion of an illustrious
family. He was one of the founding members of the Lok Parishad,
a highly
Parishad
freedom
respected
fighter who
leaders in various Courts.
defended
important
Lok
The efforts of people like Shri Singhvi won us a nation of our own.
on the threshold of the new millennium,
it is time for us
As we stand
to reflect on what
have
achieved
the future holds
yet so much more remains

numerous
waystechnology
borders
in store for us and review
so far. As a nation
are dissolving
and
much
to be done.
has
what
become
we
and
has been
accomplished
in
world is changing
a central forcenational
The
together in ways
a decade
scarcely imaginable
ago. Yet the basic aims of every society
remain the same. Securing a just society is one such aim that has been
with us long before the Christian
calendar
began. The institution of
economies
are wedded
the judiciary
lies at the centre of this endeavour.
As an institution, the Indian judiciary
has
always
commanded
of this country. Respect for the

respect from the people
the
is
of
the
common
man's
for maintaining
judiciary
part
aspirations
Rule of Law and building
a just society. The deeper aim of law is the
considerable
The
April
D.M.
Singhvi
Memorial
lecture
delivered
at the India
International
Centre
12,1999.
61
on
62
/ India
International
Centre
Quarterly
of a good
creation
said "Law and morality sustain

society. Chanakya
stems
from
ethical
values. The societal perception
Morality
the world".
of judges
greatest
as being
strength.
confidence
detached
The
and
real source
referees is the judiciary's

impartial
of strength of the judiciary
lies in
in the institution. Today it is because

of this public
that
the
in
the
a position
perception
higher judiciary
country occupies
of pre-eminence
among the three organs of the state. An independent
public
is a national
judiciary
asset.
The Expansion of the Judicial Process

The Government
of India Act, 1935, introduced
the federal principle
into Indian constitutional
law. It also made necessary
a Federal Court
to decide constitutional
matters. Appeals
from
the
Federal Court
lay
to the Judicial
Committee.
Under
the Constitution
of India,
1950, and
Indian
the Supreme
Court succeeded
legislation,
of the Federal Court and the Judicial Committee.
preceding
to the
jurisdiction
If we trace the path taken by the judiciary
in general and of the
Court in particular
in a historical perspective,
we find that
Supreme
the Court
has indeed
The
Constitution
and
Directive
threw
new
been
to the changes in Indian society.

responsive
with its chapters on Fundamental
Rights
with the federal system, inevitably
coupled
of India,
Principles
burdens
on
the Indian
You know the Latin
judiciary.
boni
est
maxim,
(it is the duty of a good
judicis
ampliare jurisdictionem
based as it is on the principle that law
judge to extend the jurisdiction)
must keep pace with society to retain its relevance, for if society moves
on but law remains static, it shall be bad for both. The Indian judiciary
acted on this maxim quite extensively
has, during the last few decades,
in cases where protection of fundamental
rights or basic human rights
is concerned.
On January
28,1950,
at 9.50 am, the Supreme

Court of India was
Prasad.
Present on the
Rajendra
Babu
inaugurated
by the President,
occasion
were Chief Justice Harilal
Ali,
Patanjali
Sastri,
Mehr
General
S.R.Das,
Chand
Setalvad
along with Justices

B.K. Mukherjee
Mahajan,
Kania,
and
Advocate
Generals
apprehensions
about
the institution
which
they were
and
of dif
Attorney
ferent States. Also present was the first Prime Minister of India,
his Cabinet
and members
Nehru,
Jawaharlal
colleagues
diplomatic
corps.
On the morning
of the inauguration,
both Attorney
Setalvad
and Chief Justice Kania, were much too conscious
Fazal
Pandit
of the
General
of some
destined
to
AS.
of Alladi
They were aware of the following statement

naswamy
Ayyar made in the Constituent
Assembly:
operate.
The
doctrine
of independence
so
dogma
as
to
the
is not
to be
judiciary
to
raised
to the
function
as
of a
level
a
Krish
kind
of
or super-executive.1
super-legislature
The
enable
/ 63
Anand
of Shri B.N. Rau, the Constitutional

Adviser
warning
about "arming the Supreme
Court with vast powers"
given in the
Constituent
was
:
also
to
their
minds
Assembly
present
following
The Courts, manned

to
needs
public
on
by an irremovable
the
social
of a periodically
sentatives
a veto
in
legislation
or
Judiciary not so sensitive
economic
sphere
as
the
repre
elected legislature, will, in effect, have
exercisable
at any
time
and
at the
instance
of
any litigant.2
In their address,
Chief Justice Kania
and Attorney General Setal

to
the
vad, therefore, explained
country the role that they and their
to play. They were eager to make the
newly born Court intended
institution 'noble and great'. Said Setalvad
:
The task before us all is the building of a nation alive to its national
and international duties, consisting of a strong central authority
and
federal
units,
each
possessed
of ample
power
for the
diverse
uses of a progressive people. In the attainment of this noble end,

we hope and trust that this Court will play a great and singular
role and establish itself in the consciousness

the Court's
first Chief
of the Indian People.
that the Supreme

Court would declare and interpret the law of the land, and, in keeping
with the tradition of the judiciary in the
country it would work in "no
Justice
Kania,
Justice,
said
Within the limits prescribed,

spirit of formal or barren legalism".
Court would
make a substantial
contribution
towards
Supreme
formation
the
the
of India
into a great entity, retaining its own civilization,

and customs. He trusted that the people of India would also
the "independence,
honour
and dignity" of the Supreme
traditions
maintain
Court.
the Court
a policy
followed
of adhering
to narrow
Initially
doctrine and tended to shy away from development
of the law. In 1950,
in A.K. Gopalan's
Court placed
a rather narrow
case,3 the Supreme
and restrictive
it was
majority,
law" meant
interpretation
upon Article 21 of the Constitution.
held in that case that "the procedure
established
a law made
by the State and the Court
refused
By a
by
to infuse in
that procedure
the principles
of natural justice. The Court also arrived
at the conclusion
that Article 21 excluded
of the freedoms
enjoyment
64
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International
guaranteed
under
Centre
Quarterly
Article
the latter, according

to the Court,
the guaranteed
rights. The Court
19 because
capacity to exercise
been, at that time, clearly influenced
appears
made by the drafting committee
to the Article which
"No person shall be deprived
of his life and personal
postulated
legal
to have
by the changes
:
originally read
liberty without
by the Con
appointed
due
of law". The drafting committee

process
stituent Assembly,
the
guided
by American
Judges, recommended
substitution
of the expression
"without due process of law" by the
to the procedure
established
by law".
expression
"except according
had come into
case was decided
soon after the Constitution
Gopalan's
force. The judgment
was mainly based on the language
of the Con
stitution and the requirements
of the particular case before the court.
"The life of law is not logic but experience,"
and the law has not
remained
evolved
Supreme
case ; and
static. The doctrine

in Gopalan's
Court, about
four years
Court
Supreme
with reference
of exclusivity
thrown
case
was
two decades
later
of fundamental
overboard
rights as
the same
by
later in the Bank Nationalization
in 1974,
in Haradhan
the constitutionality
judged
to Article 19 also.
Saha's
of preventive
in Gopalan's
Twenty-eight
years after the judgment
in 1978, the Supreme
Court in Maneka
Gandhi's
case6,
case,5
the
detention
case,
that is
pronounced
that the procedure
contemplated
by Article 21 must be "right, just and
fair" and not arbitrary; it must pass the test of reasonableness
and the
should
be in conformity
with the principles
of natural
procedure
and
it
it
at
all
and the
unless
was
would
be
no
so,
justice
procedure
of Article 21 would not be satisfied.
requirement
This line of precedent
is both dramatic and educative.
The Court
was obviously
conscious
that in human
affairs, there is a constant
and that as a society chan
recurring cycle of change and experiment
the
norms
it
to
also
Since social
ges,
acceptable
undergo
change.
is dependant
of law to needs, the
progress
upon proper application
to Maneka
Gandhi, covered the judiciary's
path from Gopalan
attempt
to mould and shape the law to respond to society's desire that liberty
must be effectively protected. I shall revert to the subsequent
develop
ment and evolution
of Article 21 a little later.
Soon
after the Constitution
upon various
agrarian
the process of bargain,
enjoy property, under
came
into force, the State embarked
The Supreme
Court felt that during
the fundamental
right of a citizen to hold and
reforms.
Article
31, was
being
sacrificed.
The Supreme
AS. Anand
Court
held
that the method
of deprivation
be at market value.
must
compensation
between
the ideals of fundamental
socialistic
There
and that the
thus arose
a conflict
rights, on the one hand, and the

and the. policy of the
Principles
in the Directive
ideals
was irrelevant
/ 65
party, on the other. Interference

by the courts in the im
of agrarian reforms was seriously resented by the execu
plementation
shared
which
had an overwhelming
tive, a view
by Parliament
Congress
Congress
majority.
Parliament
felt that the judges
of land reform legislation,
were
on
rather
than accepting
the national
in the area
of
the
Court, particularly
philosophy.
Judgments
Supreme
of land reform, were neutralized
by the Parliament
by the exercise of
its powers
Article
368
of
the
to
amend the Con
(under
Constitution)
philosophy
the
of the Supreme
Court, in matters
their personal
trying to impose
nation
stitution
done,
the basis of those judgments.

This was
thereby removing
not in a spirit of confrontation,
but because
and the
Parliament
Executive
stitution
believed
that the socio-
economic
fabric on which
the Con
of the
by the approach
Court to property rights. By the amendment,
the Parliament
Supreme
restricted
the right to compensation,
in cases of acquisitions
and
was
founded
was
being
defeated
for the State or the State corporations,

to the amount
requisitions
which the legislature
prescribed.
Faced with a situation where the Parliament
was amending
the
Constitution
to neutralize
in 1967 the
after judgment,
judgment
in I.C. Golaknath
v. State of Punjab7 ruled, by a thin

of six to five, that Article 368 of the Constitution
majority
only
for the procedure
to amend the Constitution
and was not to
provided
be construed
as an independent
that
source of power. It was opined
Supreme
Court,
the amendments
made by Parliament
could not
if
and
did
the
amendments
so,
upon
rights
they
had to be declared
void by reason of Article 13(2) of the Constitution.
The Court, however, consciously
the principle of prospective
adopted
encroach
to the Constitution
fundamental
in that judgment
overruling
done before.
The Parliament
effect of Golaknath.
was
and did not upset anything
once
It amended
the
quick to react and neutralize
both, Article 368 as well as Article 13
again
by the Constitution
(Twenty-fourth
effect from November
Even
5,1971.
was
amended.
The
validity
that had been
Amendment)
Act in 1971
the marginal
note to Article
Amendment
of the Twenty-fourth
with
368
Act
66
/ India
International
Centre
Quarterly
came
up for consideration
Kesavananda
Bharti v. State
before
the
Court
Supreme
and
in
a thirteen-Judge
Bench (7:6)
to amend
the power of Parliament
of Kerala8,
rendered
the judgment,
abridging
the Constitution
so as to prevent uncontrolled
ment power to abrogate
or destroy the basic
exercise
structure
of the amend
on which
the
had been built. It is part of history

of the Constitution
very foundation
Bharati's
now, that barely two days after the judgment in Kesavananda
case was delivered,
on the retirement of the Chief Justice Sikri, the
Executive
doned
It aban
to the independence
of the judiciary
of appointing
the senior-most
puisne judge as the
and Justice
Justice Shelat, Justice Hegde
Superseding
struck a blow
the precedent
Chief
Justice.
along with Chief Justice Sikri had formed the majority, it

the
fourth senior-most
appointed
judge, Justice A.N. Ray, as the Chief
the three superseded
Justice. As was expected,
judges resigned.
who
Grover,
The interpretation
placed on Article 368 by the thin majority was
to
sought to be removed by Parliament
enacting the 42nd amendment
the Constitution
The
amendment
asserting parliamentary
supremacy
had
far reaching
for the judiciary.
consequences
and
Reasons
makes
Objects
interesting reading:
The democratic
subjected
had
institutions provided
to considerable
been
trying
to promote
stresses
their
and
selfish
internal
14, 19 and
was
emergency
21 were suspended.
Statement
of
in the Constitution had been

strains
ends
of public good.
The
The
declared
and
vested
to the great
interests
detriment
on 26 June, 1975. Articles
the High
of political
The fate of hundreds
for
consideration
before
the
Courts.
While
up
many of
Courts in the country faced the situation rather bravely, the
Supreme
Court, in the infamous
courageous
lone dissent
of Justice H.R.
by a
of four, that the very right to life and liberty was no more
to a person detained
by the State during the emergency. The
detenus
majority
available
came
case of ADM
for the
Jabalpurexcept
Khannadeclared
and courage shown by Justice H.R. Khanna

resulted in
independence
his supersession
on the retirement of the Chief Justice Ray on 29th
was
Beg and not Justice H.R. Khanna
January, 1977. Justice M.H.
the Chief Justice of India.
appointed
After the internal emergency
was
lifted and there was
change at
steps were
the Centre with the Janta Party coming to power, immediate

taken to neutralize
the 42nd Amendment
by enacting the Constitution
its lost
Act, 1978, and it restored to the judiciary
(44th Amendment)
independence.
Anand
AS.
/ 67
In the next
evolution
stage of constitutional
by the judiciary,
to protect a wider range of interests covering almost
such matters as free legal service
every field of human life, including
to the poor and needy; the plight of the undertrials
in jail; the right to
consult
a lawyer
and the right not to make
during interrogation
Article
21 came
certain safeguards
for arrested persons
statements;
self-incriminatory
and the right to live with human dignity, free from exploitation.9
The concern of the courts for the underprivileged
and the poorer
sections
decade
of society was again

that followed.10
that while
development
environment
vironment,
hash
Kumar
with
during
assets
a facet of Article
21 includes
of mankind
that the right to pollution-free

water
21. In Doon Valley's case12, the Court
clean
cannot
environment
be allowed
and
that the per
to be exhausted.
Again,
if not altogether, prevent the violation
of
rights, award of compensation
upon the
consequential
of the fundamental
and
a
to
life
of
citizen, as
liberty
right
for the unlawful
Court
acts of the State,13 the Supreme
a view
to minimize,
fundamental
deprivation
a "palliative"
held:
The
relief
of monetary
compensation,
as
exemplary
damages,
in
proceedings under Article 32 by this Court or under Article 226 by

the High Courts, for established infringement of the indefeasible
right guaranteed under Article 21 of the Constitution is a remedy
available
in public law and is based on the strict liability for

of the guaranteed basic and indefeasible rights of
contravention
the citizen. The purpose

power
the
human
v. State of Bihar11,
that Article
manent
judgments
en
developmentthere
being a natural link between
and human rightsthis Court ruled in Sub
development
and air is also

held
in several
the
to promote
rights are necessary
of the personality
of human beings, and that a healthy
to safeguard
to such
is necessary
conditions
conducive
Realizing
a personality
reflected
but
also
to
assure
of public law is not only to civilize public

the
citizen
that
they
live
under
a legal
system which aims to protect their interests and preserve their

rights. Therefore, when the court moulds the relief by granting
in proceedings
under Article 32 or 226 of the
"compensation"
Constitution seeking enforcement or protection of fundamental
rights, it does so under the public law by way of penalising the
wrongdoer and fixing the liability for the public wrong on the State
which has failed in its public duty to protect the fundamental
in such cases
rights of the citizen. The payment of compensation
is not to be understood, as it is generally understood in a civil
68 / India
International
action
Centre
for damages
Quarterly
under
the private
law
but
in the broader
sense
of providing relief by an order of making 'monetary amends'

under the public law for the wrong done due to breach of public
duty, of not protecting the fundamental
rights of the citizen.
For the weaker
sections of Indian humanity, given their poverty,

and
ignorance
illiteracy, access to Justice to protect their fundamental
rights was almost illusory. To them, rights and benefits conferred by
the Constitution
nothing, for they lacked the capacity to assert

these. Thus, the majority of the people
of our country were denied
The
it
as
its
justice.
judiciary regarded
duty to come to the rescue and
and
to realize the benefits of their economic
help the underprivileged
social
meant
entitlements.
evolved
to bring
The strategy of Public Interest Litigation (PIL) was

justice within the reach of such underprivileged
classes.
The crucial
of the Supreme Court was

point in the transformation
the introduction
of wide-ranging
in the modalities
of access.
changes
The Supreme
Court ruled that where judicial
in
redress is sought
respect of a legal injury or a legal wrong suffered by persons, who by
reason
of their poverty or disability

for enforcement
of their fundamental
the Court
to approach
member
of
the
rights, any
public,
an action for judicial
redress. A large
are unable
can maintain
acting bonafide,
section
of the people
in India suffer from different kinds of dis
and are not even aware of their constitutional
privileges
rights. For
them
access
to courts
by social
brought
cause.
a reality through the medium

of PIL
who were well equipped
to espouse
their
became
activists,
of this kind has enabled

realization
creativity
of
socio-economic
in
the
Preamble
promise
justice envisaged
Constitution
of India.
This weapon
was effectively
used
Judicial
of the
to the
by the
the
courts, to
Supreme
High Courts, being Constitutional
a large extent in the 1980s and later.14
One of the essential
features of the democratic
estab
republic
Court
lished
under
our Constitution,
three important
the Executive,
within
operate
and
the
of powers between
limbs of the State: Parliament
and State Legislatures,
and the Judiciary. These
three limbs are meant to
their clearly earmarked
fields so that the democratic
is the division
both at the Centre and in the States may function for the
governments
welfare of all citizens. In the case of Delhi Laws, (1951) the Supreme
Court noted the absence
of specific provisions
in the Constitutional
document
that vested
power
exclusivelylegislative
powers
in the
AS.
Anand
/ 69
in the judiciary.
the judges
and judicial
Though
legislature
powers
of
limits to delegation
differed very widely
as to the constitutional
the
the 'essence'
of
legislative
power, the majority opinion imported
and the doctrine of constitutional
doctrine of separation
of powers
and trust implicit in the constitutional
scheme. Distribution
of power was treated as a basic structure in Indira
separation
limitation
and
v. Raj Narain
For the progress
of the nation, it is
(1975).
that all the three limbs of the State function in complete
imperative
Gandhi
harmony.
Power of Judicial Review
Since, the Constitution
different organs and

divides power between
the State Legisla
on
the
of
Parliament,
prescribes
powers
it also provides
for an impartial umpire in the
tures and the Executive,
an
of
to
resolve
the inevitable
disputes
shape
judiciary
independent
over their boundaries.
fathers entrusted this power of
The founding
limitations
review exclusively
to the judiciary.
judicial
that when a court invalidates
It is not generally
appreciated
it
neither
nor
condemns
any legislative
policy,
legislation,
approves
It merely deter
nor is it concerned
with its wisdom
or expediency.
the legislation
is in conformity with, or contrary to, the
of the Constitution.
Similarly, where the Court strikes
provisions
or
it
down an executive
does
so
not in a spirit of confrontation
order,
mines
whether
to assert its superiority but in discharge of its constitutional

to uphold the majesty of the law. Likewise, when it upholds
or vindicates
and
legislation
not play a second fiddle to
In all such cases, the court discharges
its duty as a
the Ark of the Constitution
so as to protect
guarding
the executive,
the Government.
duties
the court does
sentinel,
judicial
the integrity of the Constitution.
It must,
power
which
able
however,
of judicial
be borne
in mind
that in the exercise
of their
a dispute or controversy
there are no judicially manage
review, courts do not decide
is purely theoretical or for which

with them. The Courts,
standards
available
generally
speaking,
unless the
the policy matters of the executive
or some statute or is actuated
policy is either against the Constitution
are best left to the
by mala fides. Policy matters, fiscal or otherwise,
do not interfere
judgment
The
with
of the executive.
has been given the title of

of the judiciary
role. The
'Judicial
by those who are critical of this expanded
main thrust of the criticism is that the judiciary by its directives to the
expanded
Activism'
role
70
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International
Centre
Quarterly
and of the
is usurping
the functions of the legislatures
and is running the countryand,
to some, even
executive
according
of legisla
is that the tardiness
ruining it. What these critics overlook
tures and the indifference
of the executive
to address
the complaints
administration
of citizens
about
rights and unfair treatment,

In those cases where the execu
of their human
violations
makes
judicial intervention
necessary.
tive refuses to carry out the legislative
will or ignores or thwarts the
will, it is surely legitimate for courts to step in and ensure
legislative
with the legislative
mandate.
compliance
It must be remembered
that the judiciary

after traditional routes have
aggrieved
person
is apprised
of and is satisfied
it
cannot
fold its hands
rights,
is always moved by an
failed. When the Court
of basic human
gross violations
in despair and look the other way. The
can neither prevaricate
It must respond
to
nor procrastinate.
about
judiciary
the call for justice by adopting
within
certain operational
principles
the parameters
and pass appropriate
directions in
of the Constitution
order to render full and effective relief. Judicial activism
generally
an area of legislative
in the field of human
vacuum
encompasses
activism
reinforces
the strength of
rights. In my opinion,
judicial
and reaffirms the faith of the public in the Rule of Law. If
democracy
the judiciary
were
also
to shut its door

and executive
legislature
unresponsive
be left with no recourse
as was
except
to the citizen
indifferent,
who
finds the
the citizen
would
to take to the streets. No one can now
done
twenty years ago, that civil liberties can be

is unwar
interference
deprived
by arbitrary means and all judicial
ranted so long as there is statutory authority.
suggest,
Future challenges:
Judicial activism and judicial
is, therefore, essential
is of equal
ing its judicial
obligations
judicial
does
It
coin.
that judicial restraint in the exercise

for the judiciary while discharg
importance
under
not become
the Constitution.
'judicial
of justice
his own notions

Judge to pursue
limits of law, the bounds of his jurisdiction
the courts
of the same
to remember
of its functions
activism
restraint are two sides
In order to see that
adventurism'
and
beauty,
and
lead
ignoring
the
and the binding precedents,

act with proper restraint and self discipline.
Failing
will not only develop
lines
but
the
uncertain
along
must
that, the law
judiciary's
image may also get tarnished
That would, indeed, be a sad day.
and its respectability
eroded.
AS.
Anand
/ 71
A court should
only create rights where they are certain that they

and its order can be enforced. The danger of creating
can be vindicated
a multiplicity
of rights without
ment is a real one. The judiciary
mere form bereft of substance,
the possibility
of adequate
enforce
should not become
an institution of
for there are real limits
to what
should
The decisions
process
attempt to accomplish.
should be within the zone of juridical
and
legitimacy
authoritative
sources
and become
inconsistent
ignore
judicial
courts
not
the
of the
should
or in
coherent
with the larger body of the law.

I may, in this connection,
also usefully refer to the observations
of Justice V.R. Krishna Iyer. The learned author said :
....The
Court
run
cannot
the
Government
nor
the
Administration
indulge in abuse of or non-use of power and get away with it. Even
the Legislature
has limitations
and must comply with the
the
Constitution; and when they are
parameters prescribed by
the
in
court
to
correct. The essence of judicial
breached,
steps
review, which is a basic feature of the Constitution, is a Constitu
tional fundamental. The radical role of the high bench (and even
of the High Courts under Article 226) assigned to the Judiciary,

casts on it a great obligation as the sentinel on the qui vive to defend
the values of the Constitution and the rights of Indians.15
The judiciary
keeper. The courts
ment nor allow
commissions.
kinds
manageable
confronted
well-known
the administration
Complex
problems
data available
within
the limited
These
can act only as an alarm clock and not as a time

can neither take over the functions of the Govern
to get away
with its omissions
and
of policy cannot be resolved

with
the confines of the judicial
process.
of problems
are incapable
and the courts
standards'
of resolution
must
tread
by 'judicially
when
carefully
the
by them. We, in the judiciary, must forever remember
that
'absolute
Greater
saying
power corrupts absolutely'.
the greater is the need for restraint. No civilized
system of
the power,
The function of a Judge is
justice can permit judicial authoritarianism.
divine but the problem arises when the judge starts thinking that he
himself
has
become
and
rationality
a back burner.
logic
divine.
and
That is where
ego takes over and
the rules of constitutionalism
are placed
on
With
a view to retain its legitimacy

and efficacy, the potent
of
for
the
of
benefit
the
weaker
sections of society
weapon
PILforged
and those who as a class cannot agitatehas
to be used carefully so
that it may not get blunted
by wrong
use or overuse.
Care
has to be
72 / India
International
Centre
Quarterly
taken to see that PIL essentially

remains
not become
either political Interest
does
Public Interest Litigation and

or personal Interest
Litigation
If that
or publicity Interest Litigation or used for persecution.
PIL
would
lose
and
the
of
the
courts
its
happens,
credibility
legitimacy
would
suffer. Finding
the delicate
balance,
ensuring
justice in the
Litigation
around
society
us and
continuing
challenge
Court has maintained
institutional
is a
yet maintaining
legitimacy,
for the higher judiciary.
One can say that the
that balance
remarkably
well
over
the past 50
years.
o
It is well known
that Rule of Law
true that the task of maintaining

and independent
judiciary
bold
sustains
and it is equally
democracy
the Rule of Law to be assigned
to a
that
the
It is, therefore, imperative
actions
of judges
are transparent
and constitutionally
The
sound.
cannot afford to adopt an uncritical attitude towards
itself.
judiciary
at
all
make
The
must
themselves
accountable.
levels,
Judges,
judiciary
must follow the standards
of morality and behaviour
which it sets for
others
and,
behaviour
same.
as
a matter
of fact, before
standards
laying down
that it follows
must demonstrate
of
for others the judiciary

the
evaluation
of the functioning of the institution needs
to be encouraged
if the high esteem
conferred
on the
Constant
therefore
is to be justified.
judiciary
The societal perception
and impartial
of judges as being detached
referees is the greatest strength of the judiciary and every judge must
ensure that this perception
does not receive a setback. The Courts act
for the people who have reposed confidence
in them and therefore the
threat
to the independence
of the judiciary is the erosion of its
greatest
in
the
for
whatever
reasons. Lord Denning
six
mind,
credibility
public
weeks
after he completed
100 years, said: "Justice is rooted in con
and confidence
is destroyed
when the right minded go away
The import of these observations
thinking that 'the Judge is biased'".
is that the person who dons the robes of a judge, should be, fair, just,
and impartial, while engaged
unbiased
in the administration
of justice,
fidence,
as
far as
is practicable.
As Justice Marshall
of the United
States
Court
"We
that
must
never
the
real
source
it,
Supreme
put
only
forget
of power that we as judges can tap is the respect of the people."
The
source
of this respect was beautifully
Lord
Denning,
explained
by
"They (Judges)
will not be diverted
from their duty by any extraneous
A.S. Anand
/ 73
nor by any hope of reward nor by the fear of penalties;

nor
by flattering praise nor by indignant reproach. It is the sure knowledge
of this that gives the people
in judges."
confidence
(What Next in the
influences;
Law,
1982).
If a judge, decides
wrongly out of motives of self-promotion,
is no less corrupt than one who decides
wrongly out of motives
financial
gain.
In either case
the incumbent
is not worthy
he
of
a
of being
judge.
One
of the greatest challenges

the twenty first Century
approach
deliver
justice expeditiously,
frustration among litigants.
that stares
us in the face as we
is the failure
of the judiciary
to
which has brought
about a sense of
Human
has
its
limits
and waiting
hope
in the current life-style.
is even impossible
endlessly
The first thing to be kept in view by all concerned
as we enter the
new century, is that the arrears of court cases which have been mount
at the earliest, with the full and unstinted co-opera

ing are disposed
tion of the members
of the Bar and the presiding
judges, as partners
in the great task of administration
of justice. The consumer
of justice
wants unpolluted,
and
of
speedy
inexpensive
justice. In the absence
that, instead
of taking recourse to law, he may be tempted to take the

law into his own hands. This is what the judicial system must
guard
against. It has been noticed, for example, that in recent years landlords
often do not file suits
in rent courts
but take the help of anti- social

elements
to throw out tenants by force and coercion. This is
nothing
short of the rule of the jungle. If this
tendency grows it would be a sad
The Bar and the Bench, together
day for constitutional
democracy.
have to resolve these ills and preserve
faith.
peoples'
The problem
of delay on account of arrears has been discussed
for decades.
the working
of the justice
Many attempts to improve
have
been
and
made
this
remains
the central
system
yet
facing the Indian judiciary. The lack of speed in the dispute
delivery
challenge
resolution
system has had a direct impact on the level of lawlessness

in our society and on the nation's economic
for which
development
peaceful society is a necessary
precondition.
The
of the Arrears
Committee
that un
1989-90,
opined
in the High Courts,
accounted
for
the ac
largely
cumulation
of cases as loss of man-days
was directly proportionate
to
the accumulation
of cases. It is rather unfortunate
that in the last 50
filled
report
vacancies
/ears, no scientific
study
has been
undertaken
to assess
the needs
of
74
/ India
International
Centre
Quarterly
the judge-strength
more particularly
in the subordinate
judiciary. A
needed
to
work
the
infrastruc
is
out
the
of
proper study
requirements
ture and
number
in the country,
of judges
on the basis
of pendency,
rate of inflow of legal matters into the Courts
and the estimated growth

of litigation in the future. The ratio of judges per million population
in this country is the lowest in the world. However,
it must not be
forgotten that it is not merely the raising of strength of the judges in
the subordinate
courts and the High Courts which is the need of the
is crucial
that the right appointments

are made based on merit,
suitability, ability and integrity. An unfilled vacancy
may not cause
that much harm as a wrongly filled vacancy. The difficulty in persuad
dayit
ing the leading

known.
members
of the Bar to accept
judgeship
is real and too
well
The overflowing
dockets
of the courts all over the country
should,
should
not be taken as a sign of failure of the system but
rather as a positive sign of faith in the administration
of justice by those
who are involved
in litigation. Public resort to courts to counter public
mischief is a tribute to the justice delivery system.
however,
Cumbersome
small
and
measure
features
to the delay
of the procedural
law also contribute in no
in the disposal
of cases. Too many appeals
revisions
prolong
than two
even interim orders help vested

interests to
against
more
was amended
litigation. The Code of Civil Procedure
decades
but experience
that cases are still ad
shows
for the asking, either for filing written statements
or docu
journed
ments or even for settlement of issues. No attempt is made to examine
ago
the parties at the first hearing, which may more often than not narrow
down the controversy.
This needs urgent attention.
The delay in the disposal
of cases can also be 'judge made'
lack
of punctuality,
contributes
proceedings
of cases.
or on
laxity and
lack of control
in no small
over the case-
measure
file and
to the delay
court
in disposal
The grant of unnecessary

for the mere asking
adjournments
account
of 'strike call' add to the problem.
Court time is
sacrosanct
and no Judge has any right to waste it. Not adhering strictly
to court timings is a serious aberration and must be avoided
at all costs.
The delay
judges
in pronouncing
is yet another aspect on which
judgments
at all levels must address themselves.
Both Bench and the Bar,
as partners
in the great task of administration
not to become
parties
to slow
motion
of justice
must resolve
justice.
I believe
that some
of the ills with which
AS. An and
/ 75
our administration
of
justice is presently afflicted can be cured if financial and administra

I have been observing
and
tive autonomy
are granted to the judiciary
a
a
the
of
the
as
as
citizen,
analysing
functioning
judicial
system
and
also as a judge. The edifice of the administra
practicing advocate
tion of justice rests on the shoulder
as the
of the district judiciary,
majority of the litigants go only upto district level. The High Courts
have the power of superintendence
but they
over the State judiciary
do not have
any financial or administrative

powers to create even one
a
of
subordinate
or
subordinate
staff, acquire or purchase
post
judge
any land or building for Courts, or decide and implement
any plan for
modernization
of court working. Chief Justices and their companion
of
Judges of the High Court are best suited to know the requirements
the judiciary in their respective
and demand
States. Their assessment
should receive proper consideration
and not be 'rejected'
on account
of merely financial constraints.
The Chief Justices of the High Courts
who are high constitutional
know the needs
of the
functionaries,
of
the
and
State
need
to
be
financial
and
administrative
judiciary
given
vis-a-vis
State judiciary,
as well as
power
by transfer of financial
administrative
to enable them to function
powers from the executive
One
of
the
essential
elements
of
the Rule of Law is judicial
effectively.
and every society has seen the need for it. Financial
on
the executive,
to an extent, impinges
dependence
upon the inde
of the judiciary when it is required to 'negotiate'
pendence
every time
with the largest litigant -the State. Should that not be avoided
to make
independence
the judiciary
truly independent,
vibrant
and effective?
The
cost of litigation
is yet another challenge
which must be
met
the
Bar
and
the
Bench.
We
admit
that even after
must
squarely
by
and weaker sections
the poor, backward
fifty years of independence
of the society do not feel that they have equal
for
opportunities
high
has demonstrated
its bona fides and
securing justice. The Government
resolve in this respect by enforcing and supporting
the Legal Services
Authorities
a protective umbrella to the
Act, which aims at providing
weaker sections, against all injustices and giving it adequate
funds to
introduce
various
justice.
speedy and inexpensive
Last year, the Authority introduced
a scheme for deputing
Legal Aid
in
Counsel
in the country, so that the in
every Court of Magistrate
schemes
to ensure
76 / India
International
Centre
Quarterly
free of
custody prisoners who are poor get immediate
legal assistance
cost. The Authority has also initiated steps for establishing
permanent
and continuous
in all districts for providing
a statutory
Lok Adalats
forum
to litigants for amicable

settlements
are also on to establish
such Lok Adalats
Efforts
of their disputes.
in different government
and autonomous
bodies so that the
departments,
statutory authorities
citizens'
vis-a-vis
these departments
are settled through
problems
in
Adalat
of
the
of
Lok
negotiation
judges. This experiment
presence
alternative
resolution
dispute
needs
the support
of the Bar and
the
Bench.
o
Administration
of Criminal Justice
The administration
to be at
of criminal justice in our country appears
in
crossroads.
are eroding people's
confidence
Large-scale
acquittals
the effectiveness
of the system. When people
see persons
accused
of
heinous
and ghastly offences getting acquitted,
they believe that the
courts
are either too liberal
or pro-criminal
the
or are not functioning
they do not know, nor do
they ought to function. Unfortunately,

I must, however, point
they try to find the reasons for such acquittals.
out that most of the acquittals
are on account
of the fact that the
way
witnesses
fail to support
the
produced
by the prosecuting
agencies
A very large number
are also on
cases.
of acquittals
prosecution
account of faulty, non-scientific
and disoriented
investigation.
Some
also take place because the judicial officers, rather

acquittals
than sifting the evidence with care, take to the easy course of throwing
out the prosecution
and nar
case on account of minor discrepancies
row
technicalities.
when
probability
is, often, overlooked
ignore human psychology

the testimonial
assessing
potency
and
They
behavioural
of the evidence.
It
that justice cannot be made sterile on the specious

even if many guilty escape.
plea that no innocent should be punished
Indeed the innocent should not be punished
but why should the guilty
The courts must respond to society's cry for justice and punish
escape?
the
guilty
evidence.
through
proper
and
judicious
approach
to assess
the
In the light of these challenges

and high expectations
I would like
it
the next
on
the
of
the
as
enters
humility
part
judiciary,
millennium.
In the words of an American
lawyer :
to counsel
/ 77
AS. Anand
After all is said and done, we cannot deny the fact that a judge is
almost of necessity surrounded by people who keep telling him
what a wonderful fellow he is. And if he once begins to believe
that, he is a lost soul.
References:
1.
Constituent
2.
B.N.
3.
4.
5.
6.
7.
8.
AIR 1950 SC
AIR 1970 SC
AIR 1974 SC
AIR 1978 SC
1967 (2) SCR
1973 (4) SCC
9.
Rau
Assembly
-Constitutional
In Madhav
service
and
Debates,
Official
Vol.XI
Reports,
Third Series p.18.
Precedents,
27.
564.
2154.
597.
762.
225.
Hoskot's
case,
to the poor
and
(AIR
needy
1978
SC 1548)
was
an essential
it was
p.837.
held
element
that providing
free legal
fair
of the "reasonable,
in Hussainara
Khatoon's
case,
procedure".
Again,
in jail, speedy
the plight of the undertrials
considering
an integral
and essential
part of the "right to life and liberty"
21 of the Constitution
of India.
In Nandini
v. PL.
Satpathy
just
while
Dani,
during
should
and that the right not to make

interrogation
be widely
to cover the pre-trial
interpreted
stage also.
v. State of Maharashtra,
(1983
(2) SCC
96) the Supreme
Barse
has
SC
held
1819)
to be
in Article
contained
the Supreme
held
that an accused
trial was
1025)
Court
1979
(AIR
(AIR
1978
SC
the right to consult

a lawyer
statements
self- incriminatory
in Sheela
Again,
Court
laid down
certain
In Bandhua
Mukti Morcha's
for arrested
case, (AIR
safeguards
persons.
21
Court held that right to life guaranteed
802) the Supreme
by Article
included
the right to live with human
free
from
dignity,
exploitation.
Bihar Legal
v. The Chief Justice of India
and others,
(AIR 1987
Support
Society
1984
10.
SC
SC
38).
Decisions
confinement
on
as in Sunil
such
Batra
matters
as
v. Delhi
the
Admn.
right
to protection
against
solitary
(4) SCC 494); the right not to
Central
Jail (1978
104);
(4) SCC
(1978
be
held in fetters as in Charles

v. Supdt.,
Sobraj
the right against
in
T.
V.
as
Vatheeswaran
v. State of Tamil Nadu,
(1983
handcuffing
custodial
violence
as in Nilabati
Behera
v. State of
(2) SCC
68); the right against
as in D.K. Basu v. State of West
Orissa,
(1993 (2) SCC 746); the rights of the arrestee
Bengal,
harassed
(6) SCC
SC
61),
include
not to be sexually
(1) SCC
416); the right of the female employees
at the place of work as in the case of Vishaka
v. State of Rajasthan,
(1997
v. A.K. Chopra,
Council
(JT 1999 (1)
241) and Apparel
Export Promotion
were rendered
the ambit and scope
of Article
21 so as to
by expanding
(1997
within
of a human
its fold
being
11. 1991 (1) SCC 598.

12. 1985 (2) SCC 431.
13.
As in Rudul
Sah
the right to live with human

all other considerations.
supersedes
v. State
of Bihar, (AIR
1983 SC 1086)
it like Sebastian
v. State
M. Hongray
v. Union
of India
of J & K (AIR 1986 SC494),
culminating
(AIR
dignity
the dignity
because
and
the line of cases
1984
SC 1026)
in Nilabati
Behera
following
Bhim Singh
v. State of Orissa
and
(1993 (2) SCC 746).

14.
The
decisions
of the Supreme
Court
in Prem
Shankar
Shukla
v. Delhi
Administra
tion, (AIR 1980 SC 1535) Sunil Batra v. Delhi Administration, (AIR 1980 SC 1579)
78
/ India
International
Centre
Quarterly
Ratlam
v. Vardhichand,
(AIR 1980 SC 1622) Akhil Bharatiya
of India,
1981 SC 298) and
v. Union
(AIR
Sangh
Railway
of the
and more particularly
the decision
number
of decisions
thereafter
watersheds
in
Court
in S.R Gupta's
1982
SC
case, (AIR
149) represent
Council,
Municipal
Soshit
Karamchari
umpteen
Supreme
the development
locus standi.
15.
'Judicial
by
the
1997.
of Public
Activism
Lai
Bahadur
and
Interest
Litigation
Administrative
Shastri
National
and
Autonomy'
Academy
liberalisation
of the concept
of
in a special
issue,
published
Mussoorie
of Administration,

1999 Indian Judiciary in 21st C - A.S. Anand

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The Indian judiciary in the 21st century

Author(s): A.S. Anand

feel privileged to have been invited to deliver this lecture in the

the future holds

yet so much more remains

in store for us and review

of this country. Respect for the

said "Law and morality sustain

referees is the judiciary's

in the institution. Today it is because

The Expansion of the Judicial Process

to the changes in Indian society.

at 9.50 am, the Supreme

along with Justices

They were aware of the following statement

of Shri B.N. Rau, the Constitutional

The Courts, manned

Judiciary not so sensitive

elected legislature, will, in effect, have

Chief Justice Kania

and Attorney General Setal

uses of a progressive people. In the attainment of this noble end,

role and establish itself in the consciousness

of the Indian People.

that the Supreme

Within the limits prescribed,

into a great entity, retaining its own civilization,

by the State and the Court

the latter, according

of law". The drafting committee

static. The doctrine

after the Constitution

into force, the State embarked

that the method

and that the

rights, on the one hand, and the

party, on the other. Interference

the basis of those judgments.

that the socio-

for the State or the State corporations,

v. State of Punjab7 ruled, by a thin

and did not upset anything

that had been

had been built. It is part of history

along with Chief Justice Sikri had formed the majority, it

in the Constitution had been

on 26 June, 1975. Articles

Court, in the infamous

and courage shown by Justice H.R. Khanna

lifted and there was

the Centre with the Janta Party coming to power, immediate

of society was again

that the right to pollution-free

that the per

proceedings under Article 32 by this Court or under Article 226 by

in public law and is based on the strict liability for

the citizen. The purpose

and air is also

of public law is not only to civilize public

system which aims to protect their interests and preserve their

of providing relief by an order of making 'monetary amends'

rights of the citizen.

For the weaker