People's Democracy

All Set for Eleventh Biennial Conference of AILU

Som Dutta Sharma

THE Eleventh biennial conference of All India Lawyers Union is scheduled to be held during December 27-29, 2012 in New Delhi. Preparations for making success the conference are underway in full swing by the Delhi state unit of AILU, which has formed a Reception Committee under the chairmanship of former judge of Delhi High Court, Justice R S Sodhi. Another 12 sub committees have been formed to undertake the work of the conference. AILU, an all India organisation of lawyers, law teachers and law students, formed in 1982 at an all India vonvention at New Delhi is celebrating 30th year of its existence. It is a matter of pride and privilege for Delhi to host the Eleventh Biennial Conference of the organisation at the place of its birth.

The organisation came into existence at a time when the country was passing through a very critical phase. Constitutional institutions were under attack; authoritarianism was re-emerging; human rights of the people were violated with impunity; federalism and independence of judiciary, the two most important basic features of our Constitution, had to be protected. Realising the need to have an all India resistance to these attacks four hundred lawyers, law teachers and law students gathered in New Delhi and resolved to protect the true conscience of the Constitution of India.

The convention was addressed among others by Justice A C Gupta, Justice H R Khanna and Justice V R Krishna Iyer, all  former judges of Supreme Court. The then chief minister of West Bengal Comrade Jyoti Basu, himself a barrister at law, also addressed the convention which was attended by eminent members of the Bar and academic world. A Charter containing Constitutional prerogatives was adopted by the convention and it was resolved to form an all India organisation of lawyers, law teachers and law students so that these three important sections of the society are brought together as conscience keepers of the Constitution.

In its long journey since then, AILU has grown from strength to strength and is now organised in 23 states. It has held its 10 conferences so far in state capitals and important cities. More than 600 delegates from all over the country and from abroad will be participating in the eleventh conference and deliberate for three days on subjects like the following:

1.  Restructuring of Justice Delivery System towards quick and inexpensive justice.

2.  Corruption in judiciary and political system and electoral reforms.

3.  Human Rights and the Constitution and

4.  Impact of Globalisation on Legal Profession

We shall briefly look at some of the important issues here.

RESTRUCTURING OF

JUSTICE DELIVERY

We have not used the word ‘reform’ consciously as it has acquired different connotations to different people. Justice delivery system needs restructuring towards achieving an inexpensive and quick justice to the people of the country, which was the assurance given  by the founding fathers of our Constitution. At present judiciary remains the last resort for the people when they are wronged by the irresponsible actions of the executive or fellow citizens. The justice delivery system has been facing a deep crisis of its credibility. The Eleventh Law Commission had observed as under:

“The system is today used by the rich, the affluent, the anti-social and the parasites. Those who really cry for justice, social and economic, have nowhere to turn to and at any rate not to the present system.”

The subsequent reports of the law panel have also commented on the system in the same manner. The ensuing conference will discuss about the reasons for the continuing incapacity of the system to provide quick and inexpensive justice to the people. Broadly the following issues contribute to this problem.

a.            Mounting arrears of cases: Article 21 of the Constitution guarantees speedy trial. Figures released by the Supreme Court in 2008 show that there are over 2.92 crore cases pending in hundreds of subordinate courts, 21 high courts and Supreme Court as on 31-12 2007. If cases pending before the quasi-judicial forums like Central Administrative Tribunal, Income Tax Tribunal and Debt Recovery Tribunals are also added, then this figure would cross over 3 crore. One judge of Delhi High Court calculated that it will take another 464 years to clear the pending cases with the present strength of the judges in that High Court.

This problem is not new. Various committees were appointed in the past to examine this problem of delay and suggest measures to clear the pendency. In 1958, the Law Commission chaired by M C Setalvad made useful suggestions but the government did not take any step to address the problem. In 1978, the Law Commission in its 77th Report presented graphic analysis of the pendency in lower courts. Some of the figures collected by the Commission were disturbing. By end 1977, the number of original civil cases that were pending totalled 21,09,986; appeals pending were 1,90,782; session trial cases 80,383 and other criminal cases 16,38,426. In various High Courts, the total number of pending cases were 6, 07,918. When these figures are compared with the present pendency of cases, it is clear that the problem is getting acute by each passing day notwithstanding the increase in disposal of cases and resort to Alternative Dispute Resolution (ADR) methods through Permanent Lok Adalats, Mediation and Arbitration. This increasing pendency in legal parlance is called “Docket Explosion”. Causes of this pendency of cases can be traced in the present day structure of the justice delivery system.

The Law Commission in its 120th Report submitted on 31-7-1987 had recommended an optimum figure of 107 judges per million by the year 2000. The Commission also recommended ratio of 50 judges per million of population within a period of 5 years i.e., by the year 1992 . The fact that the standing committee of Parliament in its 85th report submitted in February 2002 had to again endorse the recommendation of the Law Commission for 50 judges per million of population presents a sad commentary on the seriousness of the successive governments in fulfilling their Constitutional mandate. At the level of subordinate judiciary, as of June 30, 2009, there were 2783 vacancies out of 16,946 sanctioned posts which comes to around more than 16 per cent. High Courts and Supreme Court never worked with their sanctioned strength. There exists a disparity between the number of High Court judges and the respective population of different states.

b.           Lack of infrastructure: Another important factor which seems to be largely responsible for the docket explosion is lack of infrastructure at the level of subordinate courts. The existing infrastructure is abysmally inadequate. Magistrates and judges have to work with poor infrastructural facilities. The courtrooms are not spacious enough to accommodate the litigants, lawyers and court staff.  Computers, power back up, well equipped libraries, sufficient number of court staff are prerequisites for proper case management. By some estimates, a mere 14 paise is being allocated to the judiciary out of every Rs 100 spent by the government, which is grossly  inadequate.

c.            Over-centralized and highly undemocratic: Justice delivery system in our country is highly undemocratic. The jurisdiction of the Supreme Court, the High Courts and the subordinate courts must be redefined. An earlier study documented by West Bengal Democratic Lawyers Association in 1990 concluded that “It is imperative that the parliament re-examine the need and desirability of retaining all the existing powers and jurisdiction of the Supreme Court. Maybe, some powers have to be withdrawn while in other areas namely those involving human rights, national integration, secularism and so on the jurisdiction of the apex court may have to be enlarged... The Supreme Court must also make itself comparatively easily accessible to the people. The Constitution in Article 130 clearly envisages places other than Delhi where the Supreme Court may sit.”

d.           Appellate Jurisdiction: Some High Courts in addition to appellate jurisdiction also exercise ordinary and extra-ordinary Original Civil Jurisdiction. In its 79th Report, the Law Commission observed that “numerous jurisdiction of High Courts were one potent reason for accumulation of cases”. The High Courts have also original jurisdiction in election dispute petitions, under Companies Act and some Special Acts. Being Court of Record, High Courts also exercise power to punish for contempt.  Distribution of powers in the hierarchy of the courts also seems to be illogical. In Criminal Procedure Code powers to call for the record of any case from the magisterial court and to correct the illegality in the order i.e., power of revision are given to the Sessions Court. However for similar relief in civil matters one has to rush to High Court against an order from the order of civil judge. This power can also be given to the District Judge by incorporating appropriate amendment in the Code of Civil Procedure. There are many such or similar anomalies in procedural laws which need immediate amendments.

e.            Need for democratisation: Justice delivery system in our country is organised on English model and even after Independence, we have retained the same format which is not only feudal but is also intentionally kept distanced from the consumer of justice. The layout of the courts, the language in which proceedings, particularly in High Courts and Supreme Court are conducted, dress code of judges and lawyers are all alien to the people, which create hostile atmosphere in the court. It requires to be democratised.

CORRUPTION

IN JUDICIARY

Justice A M Bhattacharjee, chief justice of Bombay High Court, had to resign in 1995 following allegations that he had received a disproportionately large amount of US $80,000 as royalty from a publisher in West Asia. Justice Arun Madan of Rajasthan High Court resigned in 2003 after he was indicted by a judges’ committee in a corruption case. He was also charged of sexually harassing a woman doctor. Justice Shamit Mukherjee of Delhi High Court resigned in 2003 following CBI probe in the multi-crore DDA scam. Justice Soumitra Sen of Calcutta High Court was found guilty by a judges’ committee in a corruption case. Chief Justice of India had recommended his impeachment which he escaped by resigning. Justice V Ramaswami of Supreme Court is having distinction of facing impeachment proceedings in parliament. He was able to escape the motion due to absence of Congress from voting on the motion in the House. Justice P D Dinakaran of Karnataka High Court was the first High Court chief justice against whom impeachment proceedings were initiated on allegations of corruption which included charges of grabbing land belonging to dalits. He had to resign. Cash at door step in Punjab, Karnataka episode involving some judges are some more examples which compel the legal fraternity and other members of civil society to clean the judicial system which is supposed to be honest.

The government introduced Judicial Standards & accountability Bill in the parliament which proposes to substitute the Judges (Enquiry) Act, 1968. The judiciary in our country is unaccountable to the people of the country. Another unique feature of our higher and superior judiciary is its method of appointment. Judiciary appoints itself. Subordinate judiciary is an exception to this usurpation. Till recently the judges of High Court and  Supreme Court resisted the most reasonable demand of making their assets public. The Supreme Court had challenged the verdict of High Court of Delhi which held that Right to Information Act applies to the judiciary.

The All India Lawyers Union has been in the forefront in demanding setting up of National Judicial Commission to deal with misdemeanor of judges, processing their appointments and to look after the transfer of judges.

HUMAN RIGHTS AND

INDIAN CONSTITUTION

The public perception of human rights is limited to the cases of handcuffing and false implication in cases of political vendetta. The whole concept of human rights needs a new orientation and articulation. If right to have a way to one’s residence in hilly terrain can be termed as right to life under Article 21 of the Constitution, then it betrays common sense as to why denial of potable water to the millions of this country does not constitute the violation of the same right under Article 21 of the Constitution of India and thus a violation of human rights. Similarly, denial of right to education, right to health and right to work would amount to denial of human right. Part III and Part IV of our Constitution, if read in harmony and in aid to each other, can provide a new understanding about human rights in the context of Indian Constitution. The conference shall deliberate on this important issue.

IMPACT OF GLOBALISATION

ON LEGAL PROFESSION

The impact of globalisation on the judiciary is discernible in the paradigm shift in interpreting statutes and earlier decisions, particularly labor laws and rent provisions. Globalisation seeks to classify legal system into service sector catering to the capitalist class. International finance capital needs a common judicial system, formal or informal. Laws governing procedure and practice are being changed to suit that requirement. Even legal education is sought to be taken over from the Bar Council of India. Thousands of single room law universities, as a result of privatisation of legal education, are manufacturing lawyers from middle and lower middle classes to cater to the needs of common man whereas institutes of excellence, National Law Universities etc cater to the requirements of corporate law firms, where the young lawyers are reduced to dignified desk clerks thus depriving the system of future brilliant talents. The unfolding impact of globalisation on legal profession will be discussed in the conference.

Overall, it is hoped that the Eleventh Biennial Conference will prove to be a milestone in the lawyers’ movement in the country.