Two-day National Seminar
“Judiciary, Ethics and Justice Delivery in India”
January 21-22, 2012
Institute of Objective Studies
National Law University, Odisha
L-R: Prof. (Dr.) Mool Chand Sharma, Former Vice-Chairman, University Grants Commission and Currently, Vice-Chancellor, Central University of Haryana; Hon’ble Mr. Justice V. Gopala Gowda, Chief Justice, High Court of Orissa and Hon’ble Chancellor, National Law University, Odisha; Hon’ble Shri Naveen Patnaik, Chief Minister, State of Odisha; Hon’ble Mr. Justice Dipak Misra, Judge, Supreme Court of India; Dr. M. Manzoor Alam, Chairman, Institute of Objective Studies
Two-day Seminar on “Judiciary, Ethics and Justice Delivery in India” at National Law University, Orissa
Issues of judicial ethics, accountability, performance of judges and judicial independence examined closely by judges, lawyers, law teachers and students at National Law University, Odisha.
Cuttack, January 21: A two-day National seminar titled “Judiciary, Ethics and Justice Delivery in India”, organised by the Institute of Objective Studies, New Delhi in collaboration with National Law University, Odisha, began here today. The occasion was graced by the august presence of chief guest Naveen Patnaik, the chief minister of Odisha, along with eminent persons like Justice Dipak Mishra of the Supreme Court of India (as the chief speaker) and Prof. Mool Chand Sharma, former vice-chairman, University Grants Commission and presently vice-chancellor, Central University of Haryana (as the guest of eminence) in the inaugural session. This session was presided over by Justice Gopala Gowda, Chief Justice, High Court of Odisha and chancellor, National Law University, Odisha.
Speaker: Hon’ble Shri Naveen Patnaik, Chief Minister, State of Odisha Two-day National Seminar on Judiciary, Ethics and Justice Delivery in India at National Law University, Orissa
In his address in the inaugural session, Mr. Patnaik, dwelt upon the importance of ethics governing every aspect of life. Describing Mahatma Gandhi as the “greatest lawyer the country ever produced”, he referred to Gandhiji’s remark that there should be “no gap between truthfulness and law”. Thus there was a need to restore ethical values to India’s judicial system. For that an individual should strive to lose himself/herself in something greater than himself/herself to become ethical. Stressing on the importance of ethics for a lawyer, he told the students of the university that lawyers of repute never compromised on ethics at any cost. He also stated that in order to become a great lawyer, one must have a thorough knowledge of the history of one’s country.
Speaker: Dr. Manzoor Alam, Chairman, Institute of Objective Studies, New Delhi
In his welcome address, Dr. Manzoor Alam, chairman, Institute of Objective Studies, New Delhi said that “delay defeats justice” and therefore our judicial system must be speedier. Prof. (Dr.) Mool Chand Sharma drew the attention of the gathering to a crisis that most institutions in the country were facing due to deterioration in the standards of democracy.
Speaker: Prof. (Dr.) Mool Chand Sharma, Former Vice-Chairman, University Grants Commission and Currently, Vice-Chancellor, Central University of Haryana
He termed democracy as a “constant tension” present in all aspects of life at all times. However, he felt the positive energy generated out of this tension could be channelised fruitfully. As democracy became more demanding, this tension would be more visible. Paradoxically, it also generated a greater scope for creative action. He also underlined the need for judges to have “compounded faculties of a historian, philosopher and prophet”.
Speaker: Hon’ble Mr. Justice Dipak Misra, Judge, Supreme Court of India
Justice Dipak Mishra, also deplored the dent visible in democracy today. He stressed the importance of an “ethical and independent judiciary.” Such a judiciary marked a “civilised society”. He argued that ethics could never be static as it was an evolving, dynamic phenomenon. The temporal nature of ethics constantly evolving with the spirit of the age. Personal values should never get in the way of collective values of judiciary and hence, personal values should not hamper decision making of a judge. He insisted that judicial ethics was the soul of justice.
Speaker: Hon’ble Mr. Justice V. Gopala Gowda, Chief Justice, High Court of Orissa and Hon’ble Chancellor, National Law University
Speaking on “Assessing the Performance of Judges: Search for Yardsticks” in the Plenary Session on the first day Justice V.S Malimath said that no matter how intelligent or productive judges former Chief Justice of Karnataka and Kerala High Courts and corrently Chairman Karnataka Law Commission, and lawyers might be, everything would be inconsequential if they were not men of character and integrity. He raised an important question: Why is judicial administration concerned with quantitative performance assessment and not with qualitative assessment? According to him, it was not quite as important how many court cases were disposed of, as how effectively justice had been meted out. He raised issues like “What is the assurance that every judgment would deliver justice” and is justice whatever that comes from the highest courts.”
L-R: Hon’ble Dr. Justice V.S. Malimath, Formerly Chief Justice of Karnataka and Kerala High Courts and Currently, Chairman, Karnataka Law Commission; Chairperson of the session Hon’ble Mr. Justice V. Gopala Gowda, Chief Justice, High Court of Orissa & Hon’ble Chancellor, National Law University Odisha.
In both Business Sessions of the first day, the theme “Judicial Accountability: Practices and Perspectives” was discussed by speakers Jayant Das, senior advocate, Supreme Court of India and president, Odisha High Court Bar Association and D.P Choudhury, director, Odisha Judicial Academy. The first business session was chaired by Justice D.P. Mahapatra, formerly Judge, Supreme Court of India and Chairman, Odisha Human Rights Commission and in the second session, the chairperson was Prof (Dr.) Mool Chand Sharma. Both Mr Das and Mr Choudhury spoke about the importance of the mechanism of control and discipline by judges. Whereas Mr. Das felt the criteria for admission to the Bar must be more rigid and stressed the need for “disciplined lawyers under disciplined judges.” Mr. Choudhury argued that a disciplined system would ensure adequate punishment for misconduct of judges which would help ensure proper accountability.
L-R: Chairperson of the session Hon’ble Mr. Justice V. Gopala Gowda, Chief Justice, High Court of Orissa & Hon’ble Chancellor, National Law University Odisha and Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, National Law University, Odisha
The first day of the seminar saw paper presentations by students and academicians from reputed institutions all across India like Christ College, Bangalore, most National Law Universities in the country and University of Petroleum and Energy Studies, Dehradun.
January 22, Plenary Session
The second day’s plenary session, chaired by Prof. (Dr) P. Ishwara Bhat, vice-chancellor, National University of Juridical Sciences Kolkata, featured Prof. (Dr) V. Vijay Kumar, vice-chancellor, Tamil Nadu Dr Ambedkar Law University, Chennai, as speaker.
L-R: Chairperson of the session Prof. (Dr.) P. Ishwara Bhat, Vice-Chancellor, National University of Juridical Sciences, Kolkata; Prof. (Dr.) V. Vijay Kumar, Vice-Chancellor, Tamil Nadu Dr. Ambedkar Law University, Chennai
Prof. Vijay Kumar delivered a learned and erudite lecture on “Judicial Appointments: Structural and Functional Reforms.” He prefaced it with, “The Indian Constitution happens to be the best-written and worst implemented Constitution.” The functioning of state machinery had drifted from the written word, leading to misgovernance and malfunction in public life, he said.
The Constitution had made the judiciary “the last policeman”, who should never be slighted. Keeping in view the judges’ exalted position in view, the British and American system had fixed no retirement age for them. Now, a time had come when this last policeman had become someone beyond reproach. Even “impeachment” moves ended up in failure. (Interestingly, in India it is not referred to as impeachment, but by a more neutral phrase, “the removal of judges.”)
Speaker: Prof. (Dr.) V. Vijay Kumar, Vice-Chancellor, Tamil Nadu Dr. Ambedkar Law University, Chennai
“Judges are protected by the Constitution,” Prof. Kumar said. Among the less pleasant aspects of appointment of judges of the Supreme Court was its “parochial” nature in the sense that judges from all states of India must be represented at the apex court. Then, judges from all religious communities had also to be there at the Supreme Court. These considerations, Prof. Kumar observed, detracted from merit. “How does it matter whether a judge is a Christian or a Muslim as long as he or she is a good judge?”, he asked.
In theory, as laid down by the Constitution, the Executive will have no role in the appointment of judges, while the fact remains that the Executive is involved all along the process of appointment of judges of higher judiciary. The Ministry of Law, the Ministry of Home Affairs and the Prime Minister’s Office are crucial in such appointments. “The President of India, in consultation with the Chief Justice of India” is more clearly involved. Judicial independence is constrained by these and other related facts.
Prof. Kumar said there were too many inadequacies in the process of the selection and appointment of judges that reflected in the quality and integrity of the judiciary. In India, because of the laxities, the sons, daughters, daughters-in-law, sons-in-law, nephews and nieces of judges, too, became judges. On the contrary, the US system was more strict. “They have extensive dossiers on people who are to be appointed as judges,” he said. The dossiers included even such details as how many times they were married and divorced.
Another point that militated against the quality of High Court and Supreme Court judges was their low salary compared to good lawyers, who earned far more than the judges did. Explaining the reasons of heavy backlog of cases in the High Courts, he said that one of the reasons was that judges’ vacancies in these courts were not filled.
While such anomalies continue in the mainstream, former judges are getting paid astronomical sums for their work in arbitration. “A judge gets as much as Rs. 1.5 crore for preliminary proceedings, that is, pre-conference payment”, he pointed out.
Legal hair-splitting and politico-legal manipulation further muddied the scene, Prof. Kumar said. Legal provisions like “proceedings to remove a judge must be concluded in the same session of Parliament as these are initiated” effectively ensures that no judge is removed by Parliament.
Manipulations lead to a judge finding a less humiliating way of exiting service through resignation than facing the ignominy of removal by Parliament.
Speaker: Prof. (Dr.) P. Ishwara Bhat, Vice-Chancellor, National University of Juridical Sciences, Kolkata
“Mercy petitions to the President for sparing prisoners on death row awaiting hanging need serious and urgent attention of the President. They gather dust for up to 14 years in the Rashtrapati Bhawan.” On the contrary, the resignation of Justice Ramaswamy was accepted the same day by the President. This effectively aborted the bid of Parliament to remove him because a judge whose resignation had already been accepted could not be removed, he explained.
In his presidential address Prof. Bhat summed up the remarks of Prof. Kumar.
Business Session IV
The theme for Business Session IV, chaired by B K Mohanty, former Advocate General of Odisha, was “Constitutional Morality: Ethics and Judicial Accountability.” The key speaker on this theme was Prof. (Dr) PK Sarkar, professor of law at Utkal University and chairman, PG Council, Utkal University.
L-R: Dr. R. Venkat Rao, Vice-Chancellor National Law School, Bangalore; Chairperson of the session Mr. B.K. Mohanty, Former Advocate General, State of Odisha; Prof. (Dr.) P.K. Sarkar, Professor of Law, Utkal University and Chairman, PG Council, Utkal University
“The idea of judicial accountability is not new for Western countries, but in India it is still evolving,” Prof. Sarkar pointed out. Endorsing Prof. Kumar’s views on the issue, he said that some limits on judicial activism were required to keep judicial powers within well-defined boundaries.
Speaker: Prof. (Dr.) P.K. Sarkar, Professor of Law, Utkal University and Chairman, PG Council, Utkal University
“Judges expect to keep a check on the Legislature’s and Executive’s excesses, but who will check judicial excesses?”, he asked. He also posed the question as to who would enforce judicial accountability, Parliament or the Supreme Court?
Speaker: Dr. R. Venkat Rao, Vice-Chancellor National Law School, Bangalore
He said the Indian judiciary was moving away from its moorings in the British judicial system and getting closer to the American system. “We are moving towards the executivisation of the judiciary and towards a review of judicial function by civil society,” he claimed.
Speaker: Mr. B.K. Mohanty, Former Advocate General, State of Odisha
Business Session V
The theme of this session, chaired by Justice L. Mohapatra, Judge High Court of Odisha, also was “Constitutional Morality: Ethics and Judicial Accountability.” The key speaker was Prof. (Dr) V.D. Sebastian, professor of law, KIIT School of Law.
L-R: Chairperson of the session Hon’ble Mr. Justice L. Mohapatra, Judge, High Court of Orissa; Prof. (Dr.) V.D. Sebastian, Professor of Law, KIIT School of Law
Prof. Sebastian defined constitutional morality as “a mandate for upholding individual dignity and social morality through a legal order.” Under this scheme of things the justice system was called upon to deliver justice within the constraints of law, he elaborated. He added that a little restructuring of judiciary would have made it more effective.
The situation had come to such a pass that it was being used by rich people, big companies, big bureaucrats, Prof. Sebastian observed.
Speaker: Prof. (Dr.) V.D. Sebastian, Professor of Law, KIIT School of Law
He pointed out issues involved with jurisdiction and procedure that often hindered justice.
Shenanigans like the judicial versus the administrative and traditions inherited from the British Civil Service like excessive weightage to seniority adversely affected the quality of justice.
Justice L. Mohapatra presented a robust defence of the integrity of judges. He said most of the corruption being talked about was confined to the administrative staff of courts, including the staff working as administrative assistants to judges.
Speaker: Hon’ble Mr. Justice L. Mohapatra, Judge, High Court of Orissa
The judges had to work with lawyers, some of whom could be involved in unfair practices. Overworked judges, who had been working even on Saturdays, and Sundays, were already under great pressure. Inflicting wild charges on them would be grossly unfair, he said.
Corruption in the judiciary began in the 1980’s and court clerks began to be bribed. Co-operation from lawyers was not always forthcoming, he said.
About the mounting backlog of cases in the higher courts, he said the only way of checking the growth of backlog, was restricting entry to fewer cases. However, restricting admission to a manageable number of cases would be like “pre-empting the recourse to justice.”
One way of coping with the mounting pressure of backlogs would be for the states to increase the number of courts and judges. Giving the example of Odisha High Court he said by March end there would be only 13 judges against the required number of 35. He advised law students to join judicial service.
A participant in this session, Navneeta Dash, a student of GLC, Mumbai, said that 77 percent of Indians believed the judiciary was corrupt, according to Transparency International.
Regarding the backlog of cases she said it would take 400 years to clear them.
Another participant, Dr Zafar Mahfooz Nomani, Associate Professor at AMU, said that “the ethical residue” had been often missing from the judiciary. However, it had greatly helped the cause of environmental movement in India by “dramatically inserting environmental rights in their judgments.”
Business Session VI
The theme of this session, chaired by Prof. (Dr) Afzal Wani, former dean faculty of law, Indraprastha University and member Law Commission of India, was “Judicial Appointments: Structural and Functional Reforms.” The key speaker was Prof. Kumar Kartikeya, assistant professor of law, KIIT School of Law. Prof. Kartikeya pointed out a series of flaws in the system and suggested corrections.
L-R: Prof Krishna Mahajan, Dean School of Law National Law University Odisha; Chairperson of the session Prof. (Dr.) Afzal Wani, Former, Dean, Faculty of Law, Indraprastha University and Member, Law Commission of India; Prof. Kumar Kartikeya, Assistant Professor of Law, KIIT School of Law
In his presidential address, Prof. Kartikeya said that judicial appointments should be made in a way that the judges’ independence from the Executive and their efficiency was assured. In India, Executive officers used to function as judicial officers also since the days of Warren Hastings.
Speaker: Prof. Kumar Kartikeya, Assistant Professor of Law, KIIT School of Law
Rule of law and protection of human rights should be the guiding values for judges. For a smooth functioning of judiciary, “the Executive cannot be excluded, but its role in judicial appointments should be limited,” he opined.
Prof. Krishna Mahajan of the National University of Law, Odisha, quoting a senior judge, said 50 percent of judiciary was corrupt. One of the reasons for this was the appointment of lawyers representing “smugglers and terrorists” as High Court judges. He pleaded for opening judicial appointments to public scrutiny.
Speaker: Prof. Krishna Mahahan, Deen School of Law, National Law University, Odisha
In his presidential address Prof. Wani summed up the discourse with the plea to integrate local legal knowledge sources and traditions to the Anglo Saxon inheritance of the Indian judiciary.
Speaker: Prof. (Dr.) Afzal Wani, Former, Dean, Faculty of Law, Indraprastha University and Member, Law Commission of India
As an exemplar of uprightness, he quoted the famous case of Imam Abu Hanifah, who refused to be appointed as a judge. For that he was jailed and tortured, but he stood his ground and did not accept the position even though several of his disciples later became renowned judges.
The valedictory address was delivered by Prof. (Dr) P. Ishwara Bhat, vice-chancellor, National University of Juridical Sciences, Kolkata.
L-R: Dr. M. Manzoor Alam, Chairman IOS; Prof. (Dr.) P. Ishwara Bhat, Vice-Chancellor, National University of Juridical Sciences, Kolkata; Hon’ble Mr. Justice V. Gopala Gowda, Chief Justice, High Court of Orissa and Hon’ble Chancellor, National Law University; Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, National Law University, Odisha and Mr. B. K. Biswal, Registrar, National Law University, Odisha
Prof. Bhat mainly summed up and endorsed the views of Prof. Moolchand Sharma and Prof. Afzal Wani. He pleaded for safeguarding constitutional morality which would, in turn, protect national identity and human rights.
About judicial accountability and judicial independence he observed that accountability and independence reinforced each other.
He said that a lot of insights and ideas must have emerged from the two-day proceedings and hoped that the university would build on that experience.
The IOS chairman, Dr Mohammad Manzoor Alam, gave an account of the eleven conferences held so far in India that were part of the 14 conferences planned to celebrate IOS Silver Jubilee.
He said in this age of fast changes, knowledge was spreading too fast, without getting deeper. “The youth are tomorrow’s leaders, and their knowledge has to be both extensive and deep,” he said.
In his remarks the NLUO vice-chancellor, Prof. Faizan Mustafa, said that the Supreme Court had shrunken over the years. “In the 90’s it had 93 benches, today there are only nine.”
Speaker: Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, National Law University, Odisha
He explained that it was not the Supreme Court that was supreme, but the Constitution. “The judges should keep themselves restrained within the Constitution,” he advised.
In his presidential address the Chief Justice of Odisha High Court, Justice V. Gopala Gowda, congratulated Prof. Mustafa and Dr Alam on holding such a fruitful conference.
He pleaded for economic justice as without it social justice was not possible. Nor was political justice possible without it. “Constitutional morality is guided by Fundamental Rights,” he explained, and added that social transformation was crucial for political morality.
Speaker: Mr. B. K. Biswal, Registrar, National Law University, Odisha
For all this to fall in place, he said, gender justice must be ensured. If people refusing to pay alimony to divorced wives failed to understand the issue of gender justice, the force of law would make them understand it, he warned.
“To the judges,” he said, “Constitutional morality is the mantra.”
VIEWS OF AUDIENCE
The following were awarded during the two-day conference:
The following resolutions were adopted at the end of the conference:
- Prof MQ Khan (Former VC Behrampur University Orissa)
- Ms Farhat Amin
- Syed Yusuf Iqbal Chief Advisor Muslim Youth Cultural Association
- Ms Meera Ghosh Sr Advocate
- Mr SBA Tanweer Social Activist (Odisa Muslim Development Council, Coordinator All India Backward & Minority Community Employees Federation)
The Conference places on record its appreciation of the role which Indian Judiciary has played in preserving and protecting the civil liberties of poor and down-trodden sections of our society. The Conference places on record in particular commendable job done by the Indian judiciary in expanding the ambit of Fundamental Rights particularly the ‘Right to Life & Personal Liberty’. Similarly, the Seminar places or records its appreciation of Indian Judiciary in expanding the ambit or Article-12 so that the guarantees of Fundamental Rights becomes more widespread.
The Seminar also took note of sensitivity shown by the Indian Supreme Court as the Apex Constitutional Court of the country in initiating a process of good governance and accountability through implicitly reading Right to Information as part and parcel and Freedom of Speech & Expression’ and also expanding and concretizing the rights of linguistic and religious minorities through landmark decisions.
The Seminar resolves that there is an urgent need for emphasizing Ethical Legal Education which should aim at inculcating ethical values in the law students who in future would become the proud members of Bench & Bar.
The Seminar also resolved that there is an urgent need for enhancing number of judges in the country and to attract the best talent in Judiciary, the Seminar resolves that the pay package of judges should be in the same proportion as it was in the original Constitution.
It was also unanimously resolved that in order to discharge the divine functions of justice delivery while the judges should not think of themselves as divine but at the same time the independence of the judges should be fully ensured and they must be protected from any kind of false and mischievous allegations.
It was also resolved that there is a need to do indepth research in developing various yardsticks to assess performance of judges. The yardsticks would differ on the basis of assessor such as the litigants, lawyers, the appellate Judges and above all the common man.
The Seminar also resolves that in the process of clearing the arrears of cases we should not over emphasize the disposal of cases as justice hurried would mean justice buried. It is also resolved that rather than emphasizing the quantity justice delivery, we should place more emphasis on the quality of our justice delivery system.
It is who resolved that justice delivery should not be confined to the Judiciary, we need to ensure justice at all levels of governance.