Above: President  Ram Nath Kovind, Chief Justice of India  Dipak Mishra and Lok Sabha Speaker Sumitra Mahajan at the inaugural function of  the National Law Day, 2017, in New Delhi on Saturday (November 25). Photo: UNI

National Law Day seminars to deal with critical issues, including the collegium

The two-day National law Day celebrations began at Vigyan Bhavan, at the Capital on Saturday (November 25) with President Ram Nath Kovind calling for free legal service to be provided to the poor.

The President, who inaugurated the conference, said it was up to the legal fraternity to not let the poor remain out of the ambit of legal services that they shy away from because of the complexity in the proves and because of the often prohibitive costs involved.

He said:  “India has acquired a reputation of an expensive legal system. In part, this is because of delays, but there is also a question of affordability of fees. The idea is that a relatively poor person cannot reach the doors of justice for a fair hearing only because of financial or similar constraints while it’s in our constitutional values and republic ethics. It is a burden on our collective conscience.”

He also urged all concerned to use technology to accelerate the justice system. “Our legal system and judiciary must be responsive to technology,” he said.

Sacrosanct duty

In his speech Chief Justice of India Dipak Misra emphasized that guaranteeing fundamental rights to its citizens is the “sacrosanct duty of the judiciary”.

He said: “The citizens have been guaranteed fundamental rights and the governing entities are not expected to encroach upon it. The moment they encroach upon it or there is an apprehension that there is an encroachment, the judiciary is obliged to stand by them.”

Deflecting the popular perception of judicial overreach, the Chief Justice said: “There is a perception that there is a judicial activism… I must clarify protection of fundamental rights of each and every citizen is the sacrosanct duty of judiciary which has been conferred on by the Constitution. Fundamental rights have been expended from the date of constitution came into existence.”

He also clarified the so-called judiciary-executive clash, by stating: “Nobody intends, nobody desires to enter upon the policy making areas. We don’t make policies but we interpret policies and that’s our job.” Clarifying further, he said that the main task of the three wings of the state is to defend the Constitution, its values, morals and philosophy.

Moral authority of judgment

Minister of State for Law and Justice P P Chaudhary said: “Courts do not have, what Alexander Hamilton called the ‘power of the sword or the purse’. They draw their strength not from any police power, but from the moral authority of their judgments. Even unpopular decisions are respected, because the judiciary is seen as being the ultimate repository of moral authority.

“Today’s sessions will aim to analyse the challenges facing judicial functioning, and what is important for the judiciary to continue to retain its moral authority and thereby remain a legitimate and relevant democratic institution,” he said.

The sessions

The day’s first session was on ‘Judicial Review and Parliamentary Democracy’. The purpose of this session, said the minister, was to address the relationship between the judiciary and Parliament. While each of the three branches of government plays its own role, it is important that the role be understood in a constitutional sense to be more of a balance than a check. This institutional balance is key to democracy. There must be a healthy tension between the three branches for democracy to survive, but for democracy to function and to thrive, each branch must also have faith and belief in the other.

“When the Executive or Legislature cross constitutional boundaries, the Judiciary’s role is to bring them back within those boundaries. Therefore, by definition, the judiciary’s post is at the boundaries of power, not at its core,” he added.

He also addressed the important question on all lips today, of boundaries of the judiciary and the executive. He said: “Some people today ask whether the judiciary is in fact beginning to play a double role, substituting Parliamentary judgement with its own. I am not referring now to issues at the boundaries of Parliamentary power, but I am referring to questions that fall into the core of Parliamentary power – in the zone of policy.”

Interestingly, this is the area that the Chief Justice had referred to in his speech, bringing to the fore general perceptions that have been tempered with experience.

Collegium System

The Collegium System becomes the key in the next discussion. The discussion is named: ‘Appointments to higher judiciary – constraints of collegium system and the reforms ahead.’

The minister said: “In mandating an independent judiciary, our Constitution mandates a guarantee of justice. But this guarantee of justice can only be fulfilled when there is a guarantee of a certain quality of justice. Is our current system of judicial appointments helping fulfill this constitutional guarantee? This is what the session will focus on.

“Not just sceptics, but even supporters of the collegium system admit its flaws. In the recent NJAC decision, even majority judges recognized that all is not well with the collegium system. I am only quoting a majority judge from that decision when I say that the ‘Collegium system lacks transparency, accountability and objectivity,’” he said.

—India Legal Bureau