Constructive activism a must for all-inclusive justice

Our judiciary has hardly made the best use of its independence to promote 'all-inclusive justice'. It suffers from ills like family monopolism in judges' appointments. But there is little movement to remedy these ills.

Speaking at a media conclave the other day, Chief Justice of India D.Y. Chandrachud said, "In my 23 years as a judge of High Court, as a CJ of High Court and judge of the Supreme Court, no one has told me to decide a case in a particular way." Justice Chandrachud referred to the "robust nature" of our democracy and said that it had developed "a very clear and defining line of separation between the Executive, the Legislative and the Judiciary."

Justice Chandrachud's observation offers us yet another confirmation that the fundamentals of our democracy are very deep-rooted and all its key principles, including the one of judicial independence, fully operational in the country. This gives the lie to the occasional allegation made by some critics against the working of our judges. Recently, when former Supreme Court judge S. Abdul Nazeer was appointed as the Governor of Andhra Pradesh, the Opposition, mainly Congress, made the allusion that Justice Nazeer had been rewarded with the governorship for some of his judgements that pleased the current Modi government.

One, however, finds our judiciary has hardly made the best use of its independence to promote what it is supposed to - "all-inclusive justice" in our democracy. All our Scriptures advocate the rule of 'dharma' (justice). In his famous treatise 'Arthashastra', Kautilya talks of rational law to promote 'dharma'. He calls a judge a 'dharmashta' (upholder of dharma). He asserts that the king is a protector of dharma and he, too, is governed by dharma as any other citizen is.

In harmony with the commandments of our Scriptures, the Constitution of India, too, talks of all-inclusive justice. The Constitution directs, "The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."

Regrettably, successive governments in post-colonial India have cared little to ensure all-inclusive justice in the country. They have not put in place an appropriate judicial network for our hugely populous nation. In the process, all-inclusive justice has remained a far cry. Our justice system has been too costly for the poor to afford. At times, ordinary citizens in the country find it hard to comply with the existing laws to perform their day-to-day functions. They find themselves forced to look for other alternatives to get their work done.

According to an estimate, at least 5 crore cases are filed in our different courts every year. The quality of arbitration remains very poor. Most of the cases keep pending in various courts for years. India today has the highest number of under-trial prisoners in the world. Over 4.2 lakh people in the country are waiting for trial.

There is a near consensus across the well-informed public spectrum in the country that our prevalent judicial scenario must change. For this, our Supreme Court could give necessary directives to the government. Constructive judicial activism is a must for the sake of all-inclusive, universal justice in the country. The apex court must intervene if the government continues to fail in the matter. Article 142 of our Constitution allows the court to pass any order necessary for doing complete justice in any cause or matter pending before it. Under this Article, the court could take suo motu cognisance of the unavailability of speedy justice in the country and give necessary directives to the government.

The court could warn the government against delay in filling in of the sanctioned judicial posts in the country. To dispose of the rising number of cases in our courts, the Law Commission of India had suggested in 1987 for having 44,000 judges. The court could assess the current requirement of judges in the country and insist on meeting the same.

The court could also declare null and void all those existing laws which are feudal-colonial. They are antithetical to justice in democracy and can have no space in our contemporary system. Besides, as part of its constructive judicial activism, the court could introduce certain reforms within our judicial system itself. Presently, our judicial system suffers from various ills, including family/dynasty monopolism in the judges' appointments. The presence of such ills does not but affect the quality of justice. This must go.

Ironically, the ugliness of the prevalent judicial scenario is hardly any secret. In a speech in March 2017, then Chief Justice of India J.S. Khehar himself lamented, "Ours is a strange country. The bigger the criminal, the bigger the outrage... The convict in a terrorist crime, who has failed up to the Supreme Court and also in his review, can get access to justice in a manner that we extend... What about the victims... What about the families which have lost their bread earners... What about that acid attack victim who has been defaced and cannot survive in society? I think about rape victims and their lives and I wonder why we don't reach out to them... Let us reach out to the victims." But, so far, there has hardly been any movement forward to remedy the ills of our judiciary.

(Jagdish N. Singh is a senior journalist based in New Delhi. He is also Senior Distinguished Fellow at the Gatestone Institute, New York)

Disclaimer: The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of OneIndia and OneIndia does not assume any responsibility or liability for the same.