Following is the text of
the speech made by Minister of State for Law & Justice and Corporate
Affairs, Sh. P.P. Chaudhary on the occasion of National Law Day:
"We
are celebrating 68 years of the adoption of our Constitution – Constitution Day
is a fitting occasion to consider the role of the Judiciary in our democracy.
Courts
do not have, what Alexander Hamilton called the “power of the sword or the
purse”. They draw their strength not from any police power, but from the moral
authority of their judgement. Even unpopular decisions are respected because
the judiciary is seen as being the ultimate repository of moral authority.
Today’s
sessions will aim to analyse the challenges facing judicial functioning, and
what is important for the judiciary to continue to retain its moral authority
and thereby remain a legitimate and relevant democratic institution".
JUDICIAL
REVIEW
The first session – on “Judicial Review and
Parliamentary Democracy”
– will address the relationship between the Judiciary and Parliament.
While each of the three branches of government plays
its own role, it is important that the role be understood in a constitutional
sense to be more of a balance than a check.
This institutional balance is key to democracy.
There must be a healthy tension between the three branches for democracy to
survive, but for democracy to function and to thrive, each branch must also
have faith and belief in the other.
When
the Executive or Legislature
cross constitutional boundaries, the Judiciary’s
role is to bring
them back within those boundaries. Therefore, by
definition, the judiciary’s
post is at the boundaries of power, not at its core.
Some people today ask whether the judiciary is in
fact beginning to play a double role, substituting Parliamentary judgement with
its own. I am not referring now to issues at the boundaries of Parliamentary
power but I am referring to questions that fall into the core of Parliamentary
power – in the zone of policy. The first session will consider this issue.
COLLEGIUM SYSTEM
The next session is on “Appointments to higher
judiciary – constraints of collegium system and the reforms ahead”. In
mandating an independent judiciary, our Constitution mandates a guarantee of
justice. But
this guarantee of justice can only be fulfilled when there is a guarantee of a
certain quality of justice. Is
our current system of judicial appointments helping fulfil this constitutional
guarantee? This is what the session will focus on.
Not just sceptics, but even supporters of the
collegium system admit its flaws. In the recent NJAC decision, even majority
judges recognized that all is not well with the collegium system. I am only
quoting a majority judge from that decision when I say that the “Collegium
system lacks transparency, accountability and objectivity.”
These aspects of transparency and accountability,
and whether the collegium system is best suited to provide them, is important
to consider and ponder on.
DELAYS IN JUSTICE DELIVERY
The third session focuses on reforms for overcoming
delays in justice delivery.
The judiciary has a role in protecting democracy and
promoting constitutional government. But it has another role. It is a provider
of an essential service to society: and as a supplier of an essential service,
it is important to ask whether the consumers of that service are satisfied.
Society comes to its courts for remedies
and resolution. If
the courts are not perceived to be a true form of recourse, of remedy or
resolution, society suffers. When
society does not find remedies in its court, or when it begins to believe that
a recourse to court is impractical or inaccessible, that is when vigilantism
and corruption begin and the rule of law erodes.
There is no sense of justice when common citizens
are given judgements several years after the cause.
Nothing is more important today, and no single
reform is desired more widely, than the reduction of judicial delays.
It
is worth considering what creative solutions there can be to minimize judicial
delays. One such solution may be that of “pre-litigation mediation”. Many
jurisdictions around the world have successfully reduced litigation and court
backlogs by offering dispute resolution
through this process. In order to promote “pre-litigation mediation”, it may be
necessary to institutionalise this process and create and enforce standards to
help it achieve its objective. This can be done by establishing a professional
body of mediators, whose qualification, standards, and regulation may be
prescribed by a statute.
Another
aspect worthy of consideration may be the reduction of the administrative work
imposed on our judges today so that they may spend their valuable time on
judicial work. One example of this is the administration of legal aid, which
currently requires the involvement of the judiciary, whereas the provision of
legal aid should best be left to the Executive
as the Executive already has the means and the reach to administer legal aid.
JUDICIAL ACTIVISM
Finally,
the eminent participants will also deliberate on the “Scope of Judicial Powers and
judicial activism”.
Judicial activism by itself is a necessary outcome
of judicial independence, and may be lauded especially when it is undertaken to
protect those who may not otherwise have ready access to justice. But quite
apart from this, is another species of judicial activism where the judiciary is
also stepping into areas which are strictly speaking in the realm of policy.
It
is a fundamental principle of governance that decisions should, as far as
possible, be predictable and not disruptive. When judicial activism and review
wades into policymaking, sometimes its consequences can be disruptive.
This needs to be avoided if possible.
CONCLUSION
In
the theme of each of these sessions is a common thread –
that of accountability.
If judicial independence is a pillar of our
democracy, then judicial accountability is the base of that pillar.
Without accountability there can be no legitimacy.
Those
in government and those outside it are both fully aware of the fickle nature of
power, and are fully aware that a strong and independent judiciary is necessary
for everyone. We
must do everything possible to preserve the moral authority and legitimacy of
our judiciary.
I believe that deliberations and discussions during
the celebrations would help us in strengthening our constitutional values. I
look forward to the deliberations.
*******
(Release ID :173842)
Source: Press Information Bureau (PIB)
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