Indira Jaising needs no introduction to anyone in the legal profession. In her trail-blazing career, she has made a mark as one who has been tirelessly fighting against the marginalization of the poor and for women’s rights. She was the first woman to be designated as a senior advocate by the Bombay High Court in 1986 and was again the first woman to be appointed as the additional solicitor general of India.
She was awarded a fellowship at the Institute of Advanced Legal Studies, London, and has been a visiting scholar at Columbia University, New York. She was awarded the Padma Shri in 2005 for her contribution to public affairs.
Among her landmark cases are those dealing with the rights of pavement-dwellers, abandonment of victims of the Bhopal gas leak, the right of women to inherit property and the right of a mother to be the guardian of her child. In the early eighties, she and her husband, Anand Grover, founded the Lawyers Collective, an NGO devoted to social and gender issues. Jaising speaks to India Legal managing editor RAMESH MENON on a wide range of issues. Excerpts:
Did you always want to be a lawyer?
I always wanted to do something that has a social impact. For me, law was an instrument that could bring in social change. After graduation, I opted for law.
What is the ideal system of justice that you would want to see?
It should be swift, equal and not expensive. Most importantly, judges should understand their role as change makers. They should not entrench the status quo which is loaded in favor of the privileged classes, corporates and senior lawyers who represent them. There are a lot of vested interests having a web of connections in the legal profession as well as in the social,
economic and political sphere.
What is the best way to appoint competent judges? Seniority may not be the best idea. Should it be quality or regional representation as there a growing demand that all the regions should be represented?
Regional representation is important. So is representation of marginalized communities as well as women. But it cannot be at the cost of competence. The big question is how to judge competence. Before judges are appointed, their earlier judgments should be evaluated, along with their knowledge of jurisprudence. After all, they are being appointed to a constitutional court and not a munsif’s court. There has to be a demonstrable commitment to constitutional values. If we are to appoint candidates from the bar, we need to look at their track record, cases they have argued and their commitment to the constitution. If all they did was represent the corporate sector, how can they be competent to become judges? Competent lawyers need not be competent judges.
Why is people’s faith in the judicial system weakening?
It is mainly because people see nepotism in the appointment of judges. Friends and relatives of judges are appointed and there is nepotism in designating senior lawyers. There too, cronies of judges are designated, not those who deserve to be designated on merit. Designation carries with it major benefits in terms of fees and the respect they get from judges.
The judiciary has been rocked by allegations of corruption and failure to deliver justice.
There has been proven corruption in the judiciary. In 1990, Justice
V Ramaswamy of the Supreme Court was found to have spent huge amounts on his luxuries out of public funds. After a fact-finding report held him guilty of misconduct, there was a motion for his impeachment in parliament but it failed during the vote. Regionalism also works to prevent accountability. Lawyers and judges belonging to a community can get together to stop action against a judge belonging to their community. Then, we had Justice Soumitra Sen from Calcutta High Court who was to be impeached but he resigned before the vote. Justice PD Dinakaran was accused of land scams and he also resigned after a motion for his removal was admitted in parliament. The impeachment motion of Justice SK Gangele of Madhya Pradesh High Court, who has been accused of sexua-lly harassing a woman judge, has been admitted in the Rajya Sabha. However, it is a shame that he still sits as a judge. This shows the utter inability of the chief justice of India and of the system to take action against sitting judges. In this case, the system has failed one of its own members and a woman.
What are the judicial reforms that you would like to see?
One is about the appointment of judges. I do not agree with the selection method of the National Judicial Appointments Commission (NJAC) that has been put in place by the NDA
government. It could also prevent competent judges or those who have given judgments against the illegal acts of the government from coming in. The executive just needs a veto to reject a judge and he or she will not be appointed. It is a completely unacceptable method as it can affect the independence of the judiciary. On the other hand, a reformed and transparent collegium would be more acceptable. The collegium should invite nominations and have a search committee of judges, academics and lawyers to give inputs on the nominee. We need a fundamental change, not cosmetic change. We should not let the executive dominate the judiciary.
The executive is increasingly in conflict with the judiciary and is trying to exert its influence and power.
I agree. The evidence comes in the statement of the prime minister at the Conference of Chief Justices, that five star activists are driving the courts! There is also evidence of the manipulation of the CBI. The failure of the CBI to appeal against the discharge of BJP president Amit Shah shows that the CBI is not only a caged parrot but a parrot without wings.
One frightening problem is the increasing number of pending cases. Justice delayed is justice denied. Many of the complainants die waiting for their case to be heard.
You are absolutely right. I do not see any serious attempt to deal with the issue. There is a lot of scope to improve the performance level of existing judges. Many judges leave by 12 noon. If they are on leave on a given day, cases are adjourned for six months, instead of transferring them to another judge who is present on that day. Only strict monitoring of performance will get rid of pendency. The current judges can do much more but there is lethargy in the judiciary. The attitude that prevails is “chalta hai”. There is no feeling of enthusiasm or desire to do justice. You get the impression that they are like babus pushing files.
What can be done to ensure that an ordinary case concludes within a stipulated time frame?
We need to have amendments to the Civil Procedure Code. Vested interests work to create a delay as there are no penalties for delay. We need to create a system of accountability for lawyers who bring in frivolous applications. The intention is to delay, not deliver. Abuse of court process must be punished, not treated as part of the game, as it is now.
Between Section 377, the beef ban and net neutrality, do you think the legal system in India is progressing or regressing?
The judgment of the Supreme Court on Section 377 of the Indian Penal Code was an abdication of constitutional responsibility. I must say, so far as the beef ban is concerned, the high court did say no corrosive action can be taken and this is a virtual stay of the Act. The issue of net neutrality has not yet reached the court but I do fear that given the fact that there are very heavy corporate interests at stake, the scope for manipulation is great. We need to wait and see what happens. The issue you are pointing to shows corruption of the constitution from within.
What do you think of the Land Acquisition Bill?
I believe the consent of the landowner is critical to the validity of the Bill. That apart, the manner in which
parliament has been bypassed is yet another example of corruption of the constitution from within, and I
hope the courts will strike down
How does the proposed Land Acquisition Act compare to the law of other developed nations? Does it adequately protect the rights of the land holder?
It does not. We can’t make comparisons. Each county must find a solution based on its own requirements. We are a country of agriculturalists who have small land holdings. Land is their only source of livelihood. That apart, there is a major issue of food security here; multi-crop land can also be acquired. The essence of food security is to guarantee the right to hold cultivable land and provide incentives for cultivation.
Human right violations are increasing in the country.
Yes, they are but what is more frightening is the attack on champions of human rights. Human right violations may perhaps exist in all political regimes, but we have not seen such a vicious attack on human rights defenders in the past. Any form of dissent is not being tolerated.