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Inside India's Judiciary with CJ Shah, J Chandrachud

Published on Thu, Aug 16,2012 | 11:56, Updated at Wed, Aug 22 at 15:42Source : Moneycontrol.com |   Watch Video :

Welcome to this special Independence Day presentation of The Firm as we go ‘Inside India's Judiciary’. This show marks a rare, if not first, on-camera appearance of a Chief Justice, a sitting judge, India’s Attorney General and UK's Former Attorney General.

The Firm brings to you with Bombay High Court Chief Justice Mohit Shah, Bombay High Court Judge Dhananjaya Chandrachud, India’s Attorney General Goolam Vahanvati, UK’s Former Attorney General Lord Peter Goldsmith in conversation with  Cyril Shroff, Managing Partner of Amarchand Mangaldas. 
Over the next one hour, these very eminent people are going to give you a rare insight into the challenges & opportunities that face India’s judicial system – from pendency to modernising the judiciary to judicial activism.

Cyril Shroff: In the first theme, I am just going to put a proposition to the Chief Justice and following thereafter to the Attorney General on the most well documented and most frequently discussed theme of 'justice delayed is justice denied'.

All of us have experienced the brunt of that- not only in navigating our ways through the Indian dispute resolutions system but that's the top theme that is thrown against us every time the conversation about our judiciary comes up. Sir, could you share with us your perspectives on it and what really are the facts on this.

Justice Shah: As a lawyer, the first conference of International Bar Association that I attended was in Delhi which was organized in the year 1982. Second one organized in Bombay in 1984, so I am glad that I am back to this conference of International Bar Association and I have this opportunity to interact with all of you.

It gives me immense pleasure to be amongst you all at this prestigious conference on the Indian Story of Global Mergers and Acquisitions organized by the IBA Asia Pacific Regional Forum. I also feel so glad that I will be participating with you at this discussion on this important topic of the role of judiciary in India's growth story. It is well recognized that, particularly when we see all around us, the neighbouring counties and other countries in the developing world that how healthy Indian democracy is. Indian judiciary is one of the institutions which have made this possible. Apart from that, it is also well recognized that amongst institutions that most influenced economic performance of the country, the courts play a prominent role. The reason is no matter how effective, how good a country's legislation is, it cannot stand up on its own unless the laws are supported by well-functioning judiciary. Before I start my presentation, I would just request you to notice some of the constraints under which the Indian judges are working.

Our working strength is one-sixth or even one-eighth of the judge strength that you have in many of the developed countries like USA where you have 100 judges per million. We have in India about 13 to 14 judges. Fortunately in Maharashtra, we are comparatively better placed. We have 16.5 judges for a population of 1 million. I am very happy that we are having this interaction in the 150th year of the Bombay High Court. It's one of the Chartered High Courts which is celebrating its 150th year since last 14th August. If you look at the figures- the all India figures are 27.7 million cases pending in the courts in India- the trial courts and the district courts, but I would like to concentrate on performance of the Maharashtra Judiciary. I came here, as was mentioned, on 26th June and I found on 30th June, 2010 that there were 4.1 million cases. In the last 20 months, another 3.4 million cases came to be added. Fortunately, we have been able to dispose of 4.4 million cases in the last 20 months- that means that every month, judges in Maharashtra dispose of more than 200,000 cases. So the pendency has come down - last Monday it was 3.1 million. In last 20 months, we have reduced the pendency by 1 million. The usual question is that for how long do the cases remain pending? The popular perception is that cases remain pending for 10 or even 20 years. So I just want to give you a break-up of the cases which have remained pending in the courts in Maharashtra for 5 to 10 years and even above 10 years. So the last column gives you the total number of cases pending for five years or even longer. As I said around 30th June, 2010, the number of such old cases- I will call them old cases- was 1.3 million and in the last 20 months, we took care of 790,000 old cases. But in the meantime, in those last 20 months, another 192,000 cases became old. So as of now the number of old cases is 718,000. You might say that it's a huge number. It is, but just imagine, if in the last 20 months we could try and decide 790,000 cases; these 718,000 cases we will be able to decide in the next 20 months. We would be able to dispose them off in the next 20 months and during those 20 months; there will be only about another 200,000 cases. So we will be able to deal with them in another six months. So maybe, by December 2014, we won’t have any case which will be pending in any court in Maharashtra for more than five years. Very often people say that cases remain pending for so many years but I want you to look at the figures that how many cases have remained pending for how many years. You will notice that out of the total cases, 47% cases are hardly two years old or even less; 30% cases are between 2-5 years old. Its only 15% cases which are more than 5-10 years old and only 8% cases which are more than 10 years old. So it is this 20% cases which bring us the bad name and as I said, we will be able to deal with these more-than-five-year-old cases within two years. Now you will say that after all, this is a conference of business lawyers; so you would like to know more about what happens to the business cases in Maharashtra. On July 1, 2010 we had 327,000 cases- criminal cases- for dishonour of cheques. We had 30 judges, exclusively, trying cases for the dishonour of cheques. One court of the Magistrate- Court number 30 in Kurla- had 45,000 cases. I immediately dashed off a letter to the Chief Minister that you please give me at least 10 magistrates to deal with only these cases and there were many other bottlenecks, The result is for all you to see- from out of 327,000 cases plus another 200,000 cases, we could dispose of 387,000 cases in the last 20 months. So the pendency has now come down to 140,000 cases only. That court of the Metropolitan Magistrate in Kurla which had 45,000 cases now has only 4,600 cases and we are sure that with passage of time, in few months we will be able to control that pendency as well.

Now as far as the High Court is concerned, we all know that arbitration is an important mechanism for resolving disputes. There were 520 applications for appointment of arbitrator. But even for getting an arbitrator appointed, they had to stand in a queue for two-three years. So we took steps to see that such applications are immediately attended to with the result that as of now there are only 62 such applications which are pending for service of summons and other things. So as soon as an application is made for appointment of an arbitrator, within three-four months we decide that application and the arbitrator is appointed.

This chart gives you the pendency of cases on the original side of the High Court such as arbitration petitions, company scheme petitions because you are all concerned with merger and amalgamations; so hardly any cases go beyond two years. In fact, all the company scheme petitions are decided in less than two years. We will only find that there is one difficulty about suits which are pending on the original side of the High Court- that number is large and we have found out a solution; within a few months we will be able to address this problem. The solution is this that all other High Courts have their original side jurisdictions starting from 1 million-2 million-2.5 million; our court had original side jurisdiction starting from only Rs 50,000. So now it is proposed that we will have our pecuniary jurisdiction above Rs 10 million out of 41,000 law suits on the original side, 36,000 cases are less than 10 million. So those 36,000 cases will go to the city civil court where there are more judges and less cases. So once our judges will be free to decide these more contested cases, they will also be able to attend to the arbitration petitions and hopefully, we should be able to hear such petitions within a year or so.

All such pendency cannot be dealt with unless our lawyer friends appreciate that our courts should not be treated as only trial courtrooms. Professor Frank Sander said, as far back as in 1976, that ‘re-imagine the civil courts as collection of dispute resolution procedures, tailored to fit the variety of disputes that parties bring to the justice system’. I would request that you please also consider that Bombay High Court has been encouraging mediation and in the last about one year, we have been able to settle 4,400 cases with the help of our trained mediators. They have extensive training programs which are conducted by our judicial academy for training mediators and I am sure that you will find our mediators very well trained and fully qualified to deal with all the business disputes.        

Shroff: Thank you sir, and it just reconfirmed what I believed, after the last time you did this presentation, that the reality is a lot better than the perception of how our system is being perceived and reviewed from outside.
Let me now turn to the Attorney General and request your thoughts in terms of what do you see as the sort of causes of this and any thoughts from a forward-looking perspective of how this would be addressed and any key messages that you would like the business community and the international community to carry as they look at complex cross-border transactions. How should they be looking at this entire topic as it certainly plagues every commercial transaction and what should I think about my governing law, what should I do about my dispute resolution system- should I choose arbitration or what should I do about it?

Vahanvati: The real concern of people who invest in this country is that they must have an effective dispute resolution mechanism. It’s a sad fact and we must accept that nobody invests in India to get entangled in the Indian legal system for dispute resolution. What they really want is to have an effective arbitration mechanism and they would want the Indian judiciary to leave arbitration alone. The biggest concern is that they find that somehow international arbitrations also get caught up in the Indian courts. Now we recognize this concern and there have been a few judgments, which have been given, which drag obvious foreign arbitrations into Indian courts. These judgments are being reconsidered by a Constitutional Bench of the Supreme Court and I think there is widespread recognition that if we want to have an effective commercial dispute resolution through arbitration, we must respect the integrity of the arbitration process. What happened in the last 10-15 years is that the more or less accepted challenges to arbitration awards as a first appeal and somehow made even international awards subject to Indian jurisdiction. Now this is your concern that you can have a very elaborate dispute resolution clause in the contract, but ultimately if the dispute resolution gets dragged into Indian courts is something which is unacceptable to you. We are alive to that and if we don’t do it through the judicial process, we are seriously considering amendments to the Arbitration Act of 1996, which will effectively insulate foreign arbitrations from such intervention. I think it’s a very important point. The second thing that we are trying to do and this is something which you will appreciate. We have come out with a Bill, which is pending in the Parliament, which is called the Commercial Courts Division Bill. Now as the Chief Justice pointed out that there are only four courts in this country- high courts, which have original jurisdiction; the rest of the courts-the jurisdiction is with the lower courts- the original jurisdiction. So, what this Bill seeks to do is to enable every High Court to have a specialist commercial court. This will be a fast track commercial dispute resolution system, which will, I think, inspire confidence and two judges will be hearing the matter in the first instance; one appeal to the Supreme Court. When this becomes a reality, you will also find that you have a method for settling your disputes without getting involved in the tangle delays of the Indian courts. So that will be a great respite to foreign investors.

Shroff: Lord Goldsmith can I get a cross-border perspective from you on how do you see matters from out to in and do you agree with the proposition that given the perceptions of the Indian system as they are that we are effectively exporting our dispute resolution system and is there actually an opportunity there for India to bring it back?

Goldsmith: You are definitely exporting your legal disputes. You only have to go to Singapore to see how many Indian disputes are being decided there and I think India is missing a huge opportunity. If you look at the English legal system, the practice is fantastically successful. I think 6 out of 8 of the top law firms are either English or sufficiently connected, but the reasons for that are partly because it’s got English law, which is predictable, which doesn’t have too many uncertainties and secondly the quality of the judges and the lawyers. But India has both of those two things as well. I have always been very impressed with the quality of Indian judges and lawyers and the system- the common law system, the commercial system is pretty much the same. So why are you missing out and I think the answer you are missing out, I am afraid, is the perception that Indian legal system is insular and the Attorney General has rightly identified the concerns about arbitration. I am very pleased to know that the Constitutional Bench is hearing the Bhatia case and may overturn some of the decisions, which have been very difficult, but there is also something that needs to be done very strongly in relation to the delay and the time it takes. So, I have been very interested to see Chief Justice Shah’s statistics, which I don’t think the world knows how much inroads are being made and that’s very good, but there is a lot more to be done in that respect. But as I said, I think, at the moment as India is on the crossroads of becoming such a huge economic super power, the Indian legal system is at the crossroads as well and this is an opportunity to be taken and that’s one reason Cyril, I am delighted that you asked me to be on this panel because I think this a very opportune moment to discuss these issues.

Shroff: Apart from a conference like this, any thoughts in terms of how we can improve the name of the Indian legal system internationally and spread the message?

Goldsmith: I think four things you can do- one is be less insular and that's critically in relation to the arbitration system. That's not the only area in which India appears to be protective and not open enough to the outside. Secondly you got to reach to the decision that the courts are run for the litigants and not for the lawyers. Thirdly modernization of the court process- we can talk about that - there a lot that can be done. And fourthly, this may be controversial; I think there is a liberalization of the legal profession that needs to be done because there is no incentive of competition at the moment in order to improve practices. I don't mean liberalization in terms of firms being able to open transactional offices that’s a big deal that may happen. But simply in terms of going even back to the state that India was at one stage of allowing suitably qualified foreign advocates to appear in cases. I appear in courts all over the world; not allowed to appear in the court in India. I think that helps increase the pool of senior advocates and qualified advocates but also adds this competitive element which enables the consumers of the legal system to get better value.

Shroff: Thank you very much for those comments. I think that's the perfect segue to go to the next topic. The next theme is of modernizing our judiciary. I am going to straight away request Justice Chandrachud to share his thoughts in terms of what could be really done in terms of modernizing our judiciary? What is already being done in terms of the various initiatives and you have been at the forefront of several of these initiatives. So any thoughts in terms of what we are doing about our infrastructure, how we plan to use technology, training and any idea that you can leave on the table for how really can the Bar cooperate with the Bench for making this more realistic and possible?

Justice Chandrachud: In the last 12 years that I have been a judge, there are two things which really stand out- one is that the subjects of litigation have changed drastically in India. Second, the content of the existing subjects has changed completely. So judges have to keep abreast of developments in the law and we set up this academy and just to give you an idea- in the last three years, we have trained close to 1200 judges in the 2000 judges that are part of our system. We have training across the career- so judges who join the system typically at the age between 25 and 30 would come into our academy for a one year training program which is spread over three or four modules in between which they would go back to the courts and learn, have some practical experience of what it is like actually in the court. So we have training across the career for young judges who are in the system at age 25, for judges at the middle level, district judges, we have training for the High Court judges as well. So what we are doing in our academy is to give our young judges, our senior judges some vision about finance, notions about economics, notion about psychology, notion about contemporary politics. We also train judges in specialized areas of law, for instance securities law, intellectual property. Even in the intellectual property, we try and give them as broad an understanding of not just who are really pro IP protection  but the conflicting view point which judges must have to have a balanced perspective. So the whole the effort really is to have training for judges and training not just in law, not just in terms of what they really need to be good at, the regular tools that they need to handle in their day-to-day work as judges but to give them a sense of vision. The second aspect of what Cyril said how do you modernize? One of the things which we did and the Chief Justice mentioned about these say 4 million cases which were pending when the Chief Justice assumed office. In our State, every one of those 4 million cases, every proceeding in those 4 million cases is part of our case information software. so that if you ask me today, how many women under trials in the district of Pune are above the age of 60 and are awaiting trial on a charge of murder and who have been denied bail and I can give you an answer straight away to that, so that if those cases have to be fast-tracked, we can fast-track those cases. So that's one area and at our academy, we train our judges on being very conversant with computers. In fact we have a computer lab in our judicial academy and we get judges across and they spend 15 days being trained in the use of information technology.

Justice Shah: I would like to mention, add to what Dr. Chandrachud has said. So committed are our judges, especially the young judges and the lady judges that those with infants of 6 months or 12 months, they want to take training, but how do they even look after their children. So we allowed them to bring their mothers or mother-in-law to stay with them, to share the room so that they can look after their children.

Justice Chandrachud: Almost 60% of our young recruits now into the judiciary in the State are women and it’s just amazing. We had young graduates who are going to become judges in the State and they would tell us that I don’t want to miss this training program, but we have several young judges who said “but I have a 3-month old baby, can I come with my 3-month old baby?” The Chief Justice was very gracious; we said we will have a crèche in the Institute because if you are a woman and you want to get a 3-month old baby and undergo a training program for a year, we have a very dedicated judicial officer in the wings. So, we are trying to get these young people who are very dedicated, young people who are very active into the judicial training module and possibly get things going.

Shroff: I have always believed that the quality of thought and the sense of fairness that underlies our legal system are better if not at par with the best in the world. The next time I am in a commercial negotiation, I want to truly represent an Indian party when there is a sort of argument as to which legal system effectively to choose. Say with pride that the Indian system not only works, but it is capable of delivering a sophisticated outcome in relation to any kind of contractual construct that is there in such complex cross-border transactions. Now in order to get to that point where I can say that with confidence and win that argument at a negotiating table – question for Mr. Vahanvati is what is it that you would recommend that we need to do on a broader basis in terms of modernizing our judiciary and getting us to that point where we can say that and win that argument with ease?

Vahanvati: One of the first things we have to do with regard to the judiciary is to allow the judges to be judges. What we are doing today is to burden the judges with so much administrative work that they don’t have time to do legal work. Let me give you an example, The Chief Justice of High Court spends so much time on administrative work that it is impossible for him to even concentrate on his own legal work. So the first thing we’ll have to do to modernize the judiciary is to accept that judges are good judges but bad administrators. I am sorry, I am putting it very bluntly but this is how it is. Let the judges do what they are supposed to do in the first place and don’t be hesitant in getting modern management techniques to assist the court. We were discussing this outside and Lord Goldsmith very rightly said there is always a fear that you will impinge on the independence of the judiciary; I accept that. The ultimate decision will be then of the Chief Justice and his judges, but the inputs that you will get- modern management techniques is something which we have to accept now. Three years ago, we had a conference in Delhi where we had presented a vision document and one of the important aspects of the vision document is to associate institutes of management all over the country with judicial management. A Chief Justice cannot possibly know which his own resource is. He doesn’t know which judge is good in a particular area. He depends on second-hand information from his colleagues or probably from the Bar. Bar is always unreliable when giving such information. Today a point which every speaker has made is that we must have specialization among judges. How will you recognize the ability of judges unless you get proper inputs? Therefore you associate management institutions with various High Courts. Every High Court in our country has different problems. Some High Courts have completely different problems. For instance, in Gujarat, I am told there major problem are prohibition cases- the amount of prohibition cases which they have because they are the only State in the country which still practices prohibition in reality. If it’s not so, that’s not the matter. So every court, every State has a different problem. So we don’t have a uniform answer for this. You bring in outsiders. You bring in trained management people from the management institutes and help the courts to modernize themselves. We are, as far as the government is concerned, committed to spending any amount of money to provide the judges with the best technology. Justice Chandrachud is right when he said that they had no money three years ago in Maharashtra. The central government has sanctioned crores of rupees now for modernization, for giving computers, for providing laptops, for providing connections, for providing interconnectivity and in a lighter vein, the Chief Justice said thank you very much but also give us electricity, because we don’t have electricity to turn on the computers- we are doing this. We are aware of the need to modernize the judiciary and it will happen. At least we are talking about it. We are thinking about it and trying to do something.

Justice Shah: In Maharashtra we are already in the process of appointing court managers for our district courts.

Vahanvati: Very good. It’s excellent. I was just trying to explain to you- now a judge like Justice Chandrachud who writes very good judgments- I don’t know how he finds time to do it because he has so much other work. So this is how you modernize the judiciary. You train the judges. Give them the right inputs and nobody is born with the gift of writing. We have to explain to him how he does it. That’s a very important point.

Shroff: One typical solution that the system has always found is to either create special courts or tribunalise different parts of what our courts do. Is that necessarily an effective tool and what are the challenges in that? Because that tends to be the short fix for specialization but we also know that it comes with a lot of constraints and riders attached.

Vahanvati: We had tribunals and what do we do? How do we man the tribunals? We man the tribunals with retired bureaucrats and retired judges. If you want to have a tribunal, if you want to have a Securities Appellate Tribunal, you have a young judge who is 40-45 years old, who knows the law and is going to make a career out of this.

Shroff: Lord Goldsmith any thoughts on how you can share some of the external experiences and what we can do for modernizing our judiciary, any comparative examples?

Goldsmith: I certainly recognize that the challenges in legal system in India are quite different from, for example, my country. The scale of the problem, the number of people involved and the nature of the issues which are involved- there are huge differences. There is an area and it’s worth recognizing, an area in which Indian law has moved way beyond the English law and that is in the field of public interest petitions- it’s much more difficult in the UK to deal with these things and that’s a recognition of a particular challenge which India faces as a society. But going back to your specific question, you have got an issue in relation to commercial work where I think the only solution is specialization. Specialization by judges, what happened in England was at the end of the 19th century, the merchants, the traders rebelled against the court’s system- it had been growing for some time, but it emerged because of a particular judgment by a judge who is described at times a very good Englishman and a very bad judge, a man called Mr. Justice Silber and he had completely confused a very important commercial case and the merchants said we are not coming to your courts any more. We will set up our own arbitration system unless you can produce those judges who understand commerce. And that’s the key point and that was when the commercial court was invented and it’s been hugely successful. It attracts disputes from all over the world - many of which have nothing to do with England at all. I will come back to what I said that it’s an opportunity for India because India has exactly the same skill in its judiciary, in intellectual ability and also in the predictability of the law, but better than US law; let me make that very clear.

Shroff: How could the international legal community really collaborate with our bench and our bench and our bar for expediting the modernization of our judiciary? I think the world has a stake in India. We are as you described destined to be an economic super power and unless we fix this we are always going to face our challenges. So, it’s not just an Indian citizen who has a stake in this. I think the international legal community also has a stake in our system. So what is that the international bar could do to help this along?

Goldsmith: At the end of the day, India must find its own solutions and invest in its own solutions- that’s the key to it, but I think the international bar can help with experience, with helping to show what works and actually what doesn’t work as we have tried many different methods; some of which have not worked and also maybe there is some valuable additions that can be made to the training side- not in terms of the law, but in terms of management techniques, ways of controlling court, case management techniques that’s a very important one, which I think needs to be understood in order to move cases along and I would think the international bar will be very happy to assist.

Shroff: Now let me move onto the third and sort of major, somewhat emotional theme on judicial activism or judicial adventurism and while this theme may have achieved more prominence recently, I think it has been debated really from the last 30 years in different forms as to where really do you draw the lines between the executive, the legislature and the judiciary and in our Constitutional framework, these lines are somewhat fuzzy. So there have been moments when one organ of the State has collapsed or underperformed, the other organ fills in that space and there is always this controversy that goes on and where do we draw that line. There have been periods in our judicial history when judicial activism has been far more pronounced in terms of the situations in which such intervention occurs, where the boundaries are redefined and the kind of judgments that flow out from what is the need of the nation at that point of time. What it does when you look at it from the other side of the mirror is it potentially introduces an element of uncertainty. As the business community looks at it, I think they ask themselves a question and they ask the system the question is there really any place for judicial activism in commercial contracts or in commercial situations and of course there is no clear line there as well, but the way we could sort of address this particular issue is really get both sides of the narrative here, there are at least two if not more narratives, which could be explored here and without being judgmental about where do you draw that line or what is the sort of right formula for this, I really like to benefit from sheer mind power and the experience of this panel to explore what these themes really are and for that I am going to ask Mr. Vahanvati to really initiate the discussion on where do you see the judiciary at this point of time in terms of its activism. How is the debate playing out in the Supreme Court and I think you are facing it every day in the Supreme Court as different situations are unfolding, where does the debate lie and maybe if you could sort of give one side of narrative before I explore the other side with the judges?

Vahanvati: Cyril I find that one of your questions - the first question was should our Constitution allow water tight separation of powers between the Executive and the Judiciary? My answer to that is that it is inevitable. The Constitution recognizes that there are three branches of the State - Parliament which enacts the law, the Executive which implements the law and the Judiciary which does two things. It checks the Constitutional validity of every law unlike other countries in which there is no such constitutional review of legislation. We have a system under which the courts can declare law to be unconstitutional for violation of fundamental rights or being beyond the powers of the legislature which passes it. So this is something which is accepted. The judges, when dealing with constitutional challenges to law, have been extremely conservative. They have always tried to support the law. They have presumed that laws are Constitutional, they do not state laws and there is no difficulty on that. That's a fact of life, we have to accept it. You have to accept that the judiciary is going to interpret the law and tell you if you are wrong, you have to correct yourself. The problem arises when it seizes to be constitutional determination or the validity of laws and we get into a broad supervision of Executive action. It started in the 1980s when Justice Chandrachud’s father was the Chief Justice of the Supreme Court where they considered Public Interest Litigation (PIL) to be something which is an avenue for people who can’t access courts. You have bonded labour, you have people who have been blinded and persons who work beyond the system - the PIL gives them a chance to approach the courts and the courts enforced Article 21- the right to life- in its most magnificent form. Over the years, the PIL jurisdiction widened, to a large extent it widened because the Executive is not doing his own job. There were certain areas in which, particularly environment, where there were some very difficult decisions to be taken, the courts were actually invited to say, we will not use diesel in Delhi and you will have compressed natural gas for Delhi transport; difficult decision politically, when the courts decided that the administration was very upset, ultimately when it was implemented because of the court orders, they took the credit. So, the second aspect of judicial activism was because of executive inaction where the judges had to fill in.

Shroff: Can I get a comment from you on this – in terms of what do you see as the other side of the narrative? For instance an international investor who sort of asks us, particularly when commercial contracts have been finalized or concessions have been given and suddenly there is some a bolt from the blue that comes through the judiciary and everything is unwound. What is the conceptual explanation that one can offer to the international community or for that matter even an Indian investor in terms of how can something like this happen in the system and how do we justify it part of our rule of law framework?

Justice Chandrachud: Traditionally I think judges have made very clear cut distinction in areas involving protection of human rights, in areas involving protection of fundamental freedom, they are bound to be active in enforcement of fundamental human rights; particularly because those human rights are asserted on behalf of people to whom the political system doesn’t give a voice because they are really the marginalized. When it comes to economic policy, traditionally at least, that is conventional wisdom for a judge that you have high degree of deference in issues of economic policy and that spills over into areas of commercial law. I think between judicial activism and restraint, every judge really is conscious of the fact that you are bound to apply rule of law standard. In India there is additional factor, which perhaps in many other common law jurisdictions would not really exist, which is the requirement of Constitutional jurisprudence because you are not just really applying common law rule of law notions but rule of law notions as now they expound in the context of a written Constitution.  So you have to apply standards of fairness or justness. There was a beautiful sentence which I came across in the judgment of Justice Mathew in the very famous fundamental Rights case which he decided in 1973. He was one of thirteen judges in that case and he said that most of the things in life that are worth talking about are matters of degree and the great judges he said, are those who are most capable of discerning which of the gradations make a genuine difference.

Shroff: But we do start with the premise that judges read down merely or interpret the law as they see it but there is a space in our Constitutional structure where judges can make laws?

Justice Chandrachud: There are areas judges certainly have to interpret the law because you still have an ample amount of scope for judicial interpretation. And that role of the court as an interpreter of law, you can never take away. I don’t think any common law system has really taken away that role of the court as an interpreter of the law. The effort is to promote objectivity and to promote a greater degree of certainty in the application or interpretation of law.

The area of law which judges have been very active in is where there is no law at all, where there is no laid down parameter of law. A classical illustration was sexual harassment in the work place, absolutely no parameter of law at all, where the judge has applied international conventions. Chief Justice and I, we were sitting together in a case where a whole lot of children of a home for mentally challenged women- they were sexually abused. Now we have to apply, we have to monitor everything in the case; from the rehabilitation of these girls who are mentally challenged, who were sexually abused, to the investigation of the case, to the proper fair criminal trial, to changing the status of homes for mentally challenged children in the state. So these are areas perhaps where there is no laid down framework for the guidance of judges, where you are dealing with areas of fundamental freedom.

Shroff: But there are two confusing narratives over here even in this whole space of activism. On one hand if you look at the mainstream system of justice so to speak where a citizen would find the legal system very technical- things like the Limitation Act, you are making pleadings in proper format or not and every rule in the book is thrown against you. But when it comes to the exercise of writ jurisdiction or essentially Constitutional rights are being interpreted, the judiciary almost swings exactly to the other extreme. How do you reconcile these two narratives of effectively a State conservative judiciary and on the other hand a very vibrant, creative and imaginative judiciary all essentially from the same system?

Justice Chandrachud: The process of Constitutional interpretation and constitutional jurisprudence which is given to Indian courts to evolve and to create new doctrine - as opposed to civil law or criminal law where I think the ability which a judge has in terms of pure principal of civil law or criminal law is far more restricted than when you are in an area of virtually uncharted constitutional jurisprudence.

Shroff: Well I have a question for you in terms of where do you see this? Where is the judiciary on a scale of 1 to 10 on this with sort of one being the least activist and 10 probably going all the way, where are you on the scale?

Vahanvati: Cyril let me make a few points very clearly - first of all the judiciary is entitled to the maximum respect, let’s be very clear about it. We want a judiciary, which tells the government and parliament where it goes wrong, no question about it. And as far as Indian judiciary is concerned, let me say it with pride, this is the only legal system in the entire Asian system where the judiciary really enforces fundamental rights and the record of enforcing fundamental rights is second to none. I wouldn’t like to give you any comparisons, but the Indian judiciary has stood the test of time ever since the Constitution was enacted, as far enforcement of fundamental rights is concerned. The question is as Justice Chandrachud said - where do you draw the line? You have cases where judges, not necessarily the Bombay High Court, in other parts are telling you about bus lines or not whether potholes should be rectified and in how many days. What kind of material to use in potholes. I was given notice once to appear by a court, not the Bombay High Court again, where the Judge wanted to know how the National Highway Authority of India is actually working, what material they are using to fill up potholes? And he thought that the material, which we are using, which is the latest material was not good enough because when he travelled on the highway, he was very uncomfortable in the car, there were too many potholes. As Justice Chandrachud said judges must have restraint themselves. They must draw a line for themselves and say beyond this we will not go. If they draw that line and stay within the line everything they do and say is acceptable. The moment they cross the line then the problem starts. This particular Government which has been the subject matter of a lot of critical judgments still respects the judiciary more than anything else, any other government before.

We had a Chief Justice in a particular court who said in open court - Parliament has been sleeping, what is Parliament doing? And the next day the newspapers picked up ‘Parliament is sleeping’ says the Supreme Court. It is not reflected in any judgment but it’s an oral observation which is made, it hurts them. Difference between one branch of the state with another depends on mutual respect, respect is not unilateral.  You respect Parliament, Parliament will respect you. You respect the Executive, the Executive will respect you. That is the message I would like to give out.

Goldsmith: I would like to make an observation. I agree with the Attorney General about the great record of the Indian judiciary in upholding fundamental rights. I agree it has done it in a way that probably no others have done it. That is why I said before; I strongly admire the public interest litigation system because that is what has achieved it. But this debate about the boundary between the government and judiciary is not unique to India. I think India probably is the most activist court I know, it does things which astonish me. But the reason for it, what I have seen, is because there is a vacuum which is otherwise is not being filled, so that is the situation.

In UK since we had Justice human rights through the Human Rights Act we have had an increasing tension between the executive and the judiciary. I have cabinet colleagues who would also say to me what are these courts doing? How can they say these things? But as the Attorney General you have got to say to them that the judges have got their role, government has got its role and the key to a successful situation and country is not the government and the judiciary agreeing - that would almost certainly be a bad country if the judiciary and the government always agreed - but making sure that both respect each other and these boundaries are understood even though time to time there are disagreements as to where they actually stand.

Shroff: There cannot be a permanent line because it always has to keep evolving from generation to generation?

Justice Shah: We have also introduced an experiment in the Bombay High Court - there are some public interest litigations, for instance an environmental case, where some citizens came and said the common effluent treatment plant of a particular industrial estate is not working properly so the industry should be closed down. We could have issued a mandamus asking the Government to follow the law and close down the industry, we didn’t do that. We called the Environmental Secretary, we called the Maharashtra Pollution Control Board officers, we called the industrialist from that industrial estate - we didn’t have a hearing in the courtroom - we called them on all to the conference room. And we gave opportunity to the Environmental Secretary, the officers of the pollution control board, the industrialist… what were their problems. The industry associations said that some of their members were not disciplined and they felt that they didn’t have the power to discipline so we gave the directions to help the industries association to discipline their own members. Therefore, there are ways and ways in which we can conduct the public interest litigations to see that that does not become adversarial but it does serve public interest.

Vahanvati: That is precisely my point. It depends on how you do it. I think your approach is extremely pragmatic, it is extremely realistic and it was not confrontational. You call them, everybody understood where you would where going but that is the way to do it.
I will give you an example for a matter which I did for one whole year. Before the bench of the Chief Justice and Justice Chandrachud, where there was a very high scandalous fixed stamp duty paper controversy in this state and another state also. That was monitored by the Chief Justice and Justice Chandrachud. I was the Advocate General. The Government said you should oppose this. I said nothing doing. Over a period of time the court monitored it and today it has come to a successful termination when the guilty has been punished.

Let me be very clear about it, we welcome judicial activism. What we do not accept is judicial extremism. I am talking of stray cases. It is the stray cases which get publicity. It is the stray cases which result in tension between the Executive and the Judiciary. This has to be a process where the judges themselves do some introspection and the ones who are sensible should tell the others who are a little playful that you should control yourself.

Shroff: So before we add more to the judicial vocabulary maybe we could just have a quick wrap on this particular topic because this is the number one topic on people’s mind - how would you wrap up this theme in terms of what is the impression that you would really like the commercial and the international community to carry about how this tool of judicial activism really plays out in commercial situations? Let’s sort of go around the whole panel on this.

Vahanvati: I first of all would like to assure the international community that as far as commercial matters are concerned the judiciary does not come in by way of PILs at all. For a short period of time we had a few petitions being filed in Supreme Court where they were trying to stop public projects and most of the time the petitioners were set up by unsuccessful litigants who also happened to be international bidders in several cases. The courts have seen through this and they are now not entertaining public interest litigations as transparently meant to thwart a particular project at the instance of an unsuccessful bidder. So you have nothing to worry. There is a major contract which you want to bid for in India, go ahead. You will have no difficulty provided you do it right. That’s no issue now. There are a series of judgments which the Supreme Court gave in the last 10-15 years which have effectively stopped such public interest litigations. There are no public interest litigations being filed in matters where they are trying to stop international projects. So we are all right on that score. Now FDI is welcome in this country and there is no question about it. So if you are investing you can be rest assured that your investment is safe and there should be no problem on this.

Justice Shah: I would only like to reiterate what the Supreme Court has already said in a case called Ramniklal Bhuta vs State of Maharashtra. It was decided in 1997. The Supreme Court said our country has now launched an ambitious program of all-round economic development to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries. For sustaining such economic progress the Government has to take various steps which are in public interest as the time has come when the court should keep the larger public interest in mind while exercising their powers of granting stay/injunction. I would just like to add a word that when you come here to buy a property worth about a million dollars you go to a solicitor and make search of the title and wait for a month or so. So please also take that care when you are making investment and see that what you are buying is the right thing. The seller has the title to sell that.

Shroff: Absolutely. I think that’s very certainly and nicely put. Justice Chandrachud?

Justice Chandrachud: Well, let me just state in a sentence or two which is that - in areas of commercial law I think judges are conscious of the fact that you need to impart certainty in the interpretation of law that adding to the burden of litigation, possibly may derail a project. It has very serious ramifications in terms of investment, in terms of cost overruns, that’s something which judges are very, very deeply conscious of the need to avoid.

 
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