Popular Majority Not a Defence for Arbitrary Actions; Executive Needs To Assist and Co-Operate for The Rule of Law to Prevail in The Nation CJI N.V. Ramana

(Judicial Quest News Network)

A Government enjoying popular majority in the Parliament is not a defence for its arbitrary actions, Chief Justice of India NV Ramana made it clear on Sunday, while speaking at the fifth late Sri Lavu Venkateshwara Endowment Lecture on the topic ‘Indian Judiciary-Challenges of the future ‘at Vijayawada.

CJI also criticized the tendencies to brand Judicial review as “Judicial Overreach”. He said that without judicial review, the functioning of the democracy in the country will be “Unthinkable” The power of judicial review is often sought to be branded as Judicial overreach. Such generalisations are misguided. The Constitution created three co-equal organs, namely the legislature, the executive and the judiciary. It is in this context that the judiciary has been given the role of reviewing the legality of steps taken by the other two organs.

It is a well-known fact that; a popular majority is not a defence for arbitrary actions taken by a government. Every action is mandatorily required to comply with the Constitution. If the judiciary does not have the power of judicial review, then the functioning of democracy in this

country would be unthinkable.

He also took an unfavourable view of governments disrespecting court orders saying it effects dispensation of justice.

There appears to be a growing tendency to disregard, and even disrespect court orders by the executive.” He said.

Justice Ramana also pointed out that Judicial review by constitutional courts is often branded as ‘judicial over-reach

Such generalisations are misguided. The Constitution created three co-equal organs, namely the legislature, the executive and the judiciary. It is in this context that the judiciary has been given the role of reviewing the legality of steps taken by the other two organs,” he emphasised. To

The concept of separation power cannot be utilised restrict the scope of judicial review. He opined.

It only protects the Bona fide legitimate actions. It is required that the legislative and executive wings recognise their limits under the Constitution to ensure the smooth working of the democracy.

He further said that lack of legal scrutiny before making legislation and non-cooperation by executive have become impending problems of Judiciary.

Courts do not have the power of the purse or the sword. Court orders are only good when they get executed. The executive needs to assist and co-operate for the rule of law to prevail in the nation. However there appears to be a growing tendency to disregard, and even disrespect Court orders by the executive. One ought to remember that ensuring justice is not the responsibility of the judiciary alone. Unless the other two coordinate organs make sincere efforts to fill the judicial vacancies, appoint prosecutors, strengthen infrastructure, and make laws with a clear foresight and stakeholders’ analysis, judiciary cannot be held responsible alone. Chief Justice Ramana Said.

About the filling vacancies in the courts, Chief Justice Ramana said, The appointment of judges is a continuous process. After being elevated as the Chief Justice of India, I have focussed on increasing judicial appointments. I appreciate the Government’s effort in appointing several judges in recent times.

Stating further about the myth of appointments Justice Ramana said It is nowadays fashionable to reiterate phrases such as, “judges are themselves appointing judges”. I consider this to be one of the widely propagated myths. The fact is the Judiciary is merely one of the many players involved in the process. Many authorities are involved including the Union Law Ministry, State Governments, Governor, High Court Collegia, Intelligence Bureau, and lastly, the topmost executive, who all are designated to examine the suitability of a candidate. I am sad to note that the well-informed also propagate the aforesaid notion. After all, this narrative suit certain sections.

Liberate Public Prosecutor

There is a need to liberate the institution of public prosecutors. Total independence must be granted to them and to make them answerable only to the Courts. Historically, prosecutors in India have been under the control of the government. Hence it is not a surprise that they do not act independently. They do nothing to prevent frivolous and no deserving cases from reaching the courts. Public prosecutors automatically oppose bail applications, without independently

applying their mind. They attempt to suppress evidence during trial which could benefit the accused.

He further said that A holistic rework needs to be undertaken. In order to insulate the public prosecutors, an independent selection committee may be constituted for their appointment. Best practices should be adopted after a comparative analysis of other jurisdictions.

The Chief Justice reiterated his concerns over the absence of well-considered legislations.

CHALLENGES BEFORE THE JUDICIARY

This brings me to the various challenges before the Indian

judiciary. Broadly these can be categorized into two groups. The

first relate to issues before the judiciary due to changing times. I

call these “new challenges”, although some of them are already

being faced by us. These include issues such as:

I. Need for Domain Expertise

II. Absence of Well-Considered Legislation

III. Non-Cooperative Executive

IV. Dysfunctional Criminal Justice System

V. New Threats to the Judiciary

VI. Increasing Judicial Resilience

he second category relates to perennial issues before the judiciary. These are issues that have been a concern for many years. Much has already been said about them. Despite this, I am highlighting these challenges again because they require immediate resolution. I call these challenges “persistent challenges” and they are as follows:

I. Improving Judicial Infrastructure

II. Filling Judicial Vacancies

III. Ever Increasing caseloads

I will first discuss the “new challenges” to be faced by the judiciary, before giving some of my thoughts on the “persistent challenges” before us. Future Challenges Need for Domain Expertise Due to the rapid development of science and technology, new types of problems and cases are coming up every day. Take for example, the internet. Sale of illegal material on the dark web, identity theft, fraudulent online transactions, hacking, spread of defamatory content and hate speech, etc., are all challenges that we must confront.

Another example relates to money laundering or crime funding through virtual currencies. At present, even understanding the mechanisms underlying such an offence might be beyond our Judges and investigators. An additional layer of complexity relates to issue of jurisdiction over the above. part from changing dimensions of criminal law, there are also new and complicated civil law issues that have arisen due to advance in technologies. These are all transforming the legal

landscape and require judges and other authorities to have vast

technical knowledge. Our understanding and the laws cannot lag

too far behind changing technology. We are still discussing issues

related to internet, while technologists are talking about the

“Metaverse”. An aspect that we need to contend with is the rise of specialized regulatory authorities like the Competition Commission,

Securities Tribunal, the Electricity Regulatory Commissions and

TRAI. The complexities involved in adjudicating such cases

necessitated the co-opting of technical members in Tribunals.

However, no such provision to co-opt experts is available to the

judiciary, causing difficulties in deciding appeals.

This issue becomes even more urgent when it comes to appeals or

petitions relating to environmental pollution and the climate

crisis. There is therefore a requirement of domain expertise. We not

only need highly trained judges and lawyers well versed in fundamental legal principles, but also those with an understanding of developments across various fields. It is necessary to have continued judicial training from technical experts. Legal education needs to keep pace with the times and constantly update their curricula. Absence of Well-Considered Legislation I have highlighted this earlier, but there is usually no impact

assessment or basic scrutiny of constitutionality before passing of legislations. The minimal that is expected out of the legislature while drafting laws is that they abide by settled Constitutional principles. While making laws, they must also think of providing effective remedies for issues which may arise out of the law. But these principles seemingly are being ignored. A lack of foresight in legislating can directly result in the clogging of courts. For example, the introduction of the Bihar Prohibition Act in 2016 resulted in the High Court being clogged with bail applications. Because of this, a simple bail application takes 1

year to be disposed of. Un-refined law leads to a mushrooming of litigation. A proposed law can only be refined through the involvement of all stakeholders and through meaningful debate. Parliament introduced a remarkable mechanism in the 1990’s to enhance scrutiny of bills – that of standing committees. However, it appears that the legislature has not been able to make optimum use of the Committee system. I hope this will change, as such scrutiny improves the quality of legislations. Non-Cooperative Executive Courts do not have the power of the purse or the sword. Court orders are only good when they get executed. The executive needs to assist and co-operate for the rule of law to prevail in the nation. However there appears to be a growing tendency to disregard, and even disrespect Court orders by the executive. One ought to remember that ensuring justice is not the

responsibility of the judiciary alone. Unless the other two coordinate organs make sincere efforts to fill the judicial vacancies, appoint prosecutors, strengthen infrastructure, and make laws with a clear foresight and stakeholders’ analysis, judiciary cannot be held responsible alone. Dysfunctional Criminal Justice System

There is a need to liberate the institution of public

prosecutors. Total independence must be granted to them and to make them answerable only to the Courts. Historically, prosecutors in India have been under the control of the government. Hence it is not a surprise that they do not act independently. They do nothing to prevent frivolous and no deserving cases from reaching the courts. Public prosecutors automatically oppose bail applications, without independently applying their mind. They attempt to suppress evidence during trial which could benefit the accused. A holistic rework needs to be undertaken. In order to insulate the public prosecutors, an independent selection committee may be constituted for their appointment. Best practices should be adopted after a comparative analysis of other jurisdictions. The responsibility of a public prosecutor is immense. They act as gate keepers who ensure that rights of citizens are not sacrificed and that citizens are not harassed through malicious

prosecutions. Another facet of the criminal justice system that needs to be changed relates to investigators. There is absolutely no system of

accountability in place for faulty and inordinately delayed investigations. A person wrongfully incarcerated due to false implication loses his right to liberty, property, etc. He suffers enormously. There is no real remedy left for him and no

compensation whatsoever even after an acquittal. New Threats to the Judiciary An area of grave concern for the judiciary, which as the head of the family I have highlighted multiple times, is the increasing

attacks on Judges. In recent times, physical attacks on judicial

officers are on the rise. At times, there are also concerted campaigns in print and social media against judges if parties do not get a favourable order. These attacks appear to be sponsored and synchronised.

The law enforcing agencies, particularly the specialised agencies,

need to deal with such malicious attacks effectively. It is unfortunate that unless the Court interferes and passes orders, the authorities generally do not proceed with the investigation. The Governments are expected and duty bound to create a secure environment so that the judges and judicial officers can function fearlessly. Another aspect which affects the fair functioning and independence of judiciary is the rising number of media trials new media tools have enormous amplifying ability but appear to be incapable of distinguishing between right and wrong, good and bad and the real and fake. Media trials cannot be a guiding factor in deciding cases. Increasing Judicial Resilience, the necessity to co-opt technology in the judicial process was brought into sharp focus with the Covid-19 pandemic. Virtual hearings allowed Court proceedings to take place at the peak of the pandemic. It proved to be an essential tool towards enhancing access to justice. Of course, there are many issues with virtual hearing that need to be worked on. The main challenge is to turn it into an effective system. For the same, Courts, litigants and advocates must be equipped with adequate infrastructure across the country. Unfortunately, this is not yet in place.

37. There is a wide gap to be bridged. Advocates and litigants who are from rural areas, smaller towns or who are economically weaker; are disadvantaged and excluded. They have suffered immensely. This needs to be remedied. Virtual hearings are just one method to increase the resilience of the system. However, this endeavour still needs much

introspection and we need to develop tailor-made platforms to meet the specialized needs of the judiciary.