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In The Absence Of Judicial Review, People's Faith In Constitution Would Have Diminished : CJI NV Ramana

Sohini Chowdhury
23 July 2022 8:57 AM GMT
Judicial Review Of Legislative And Executive Actions, Is An Integral Part Of The Constitutional Scheme : CJI Ramana
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While delivering the inaugural speech at the Justice S.B. Sinha Memorial Lecture on 'Life of a Judge', Chief Justice of India, N.V. Ramana observed that in absence of judicial review, people's faith in the Constitution of India would have diminished.

"One gets to hear that judges, being unelected, should not get into legislative and executive arenas. But this ignores the Constitutional responsibilities that is placed on the judiciary.Judicial review of legislative and executive actions, is an integral part of the Constitutional scheme. I would go as far as to state that it is the heart and soul of the Indian Constitution. In my humble view, in the absence of judicial review, people's faith in our Constitution would have diminished. The Constitution is ultimately for the people. The judiciary is the organ which breathes life into the Constitution", the CJI said.

He was delivering the inaugural 'Justice S B Sinha Memorial Lecture' on "Life of a Judge" being organised by National University of Study & Research in Law, Ranchi

An exultant CJI emphasised that the judiciary has been successful in filling up certain gaps in the Constitution in the larger public interest. He added -

"It is interpretation by the judiciary, that have sustained and reinforced the faith of the people in the republic and the democracy."

As the judiciary continues to live upto the responsibility entrusted upon it by the framers of the Constitution, CJI, Ramana stated, it is the most trusted organ of the State.

Acknowledging that in order to strengthen rule of law and democracy, it is imperative to build a strong judiciary, he implored upon all present to make a collective endeavour to strengthen the judiciary.

He pointed out that in a common law system guided by precedents, judges play an important role in shaping democracy. CJI, Ramana was of the view that in order to do complete justice, a judge needs to be aware of the consequence of their decision. While rendering justice in a socially diverse country, judges are required to be compassionate and humanistic. In a vibrant democracy, the judge is not confined to their role as adjudicator of disputes, but are duty-bound to interpret laws and the Constitution. Therefore, at no cost, he reckoned, a judge should ignore their Constitutional responsibilities.

While expressing his gratitude to be a part of the 'most trusted organ of the State', he voiced concern about the security of the judges. In this day and age, with an increase in the number of physical attacks on judges, he reckoned, the need for security is crucial.

"Can you imagine, a judge who has served on the bench for decades, putting hardened criminals behind the bar, once he retires, loses all the protection that came with the tenure? Judges have to live in the same society as the people that they have convicted, without any security or assurance of safety."

He lamented that unlike politicians, bureaucrats, police officers and other public representatives, judges are not provided with security after their retirement.

In his speech, the CJI touched upon important issues such as need to ensure proper judicial infrastructure, the problems created by media trial in judicial administration, the importance of judicial review in protection Constitution, future challenges of judiciary etc.

The full text of the speech is given below :

"At the outset, I would like to congratulate the Judiciary of Jharkhand which is marking the Golden Jubilee of setting up of Circuit Bench of Patna High Court in Ranchi in the year 1972. It is praiseworthy that, as part of Golden Jubilee celebrations, you are augmenting the judicial infrastructure.

It is a great privilege and honor to be delivering the inaugural lecture instituted in the memory of Shri Justice Satya Brata Sinha. Justice Sinha will be remembered as one of the greatest jurists of the Indian judiciary. He made sure that his values were expounded in his judgements. He was a crusader of personal liberty. He enjoyed abundance of goodwill and affection from every member of the bar and the bench. It did not take me very long to decide on the topic of this lecture, that is, "life of a judge". It is one topic that Justice Sinha used to discuss very often with his colleagues and his friends.

After the end of the 2nd World War, it was clear for modern democracies that law is not a mere one-way projection of authority. Renowned scholars have therefore argued that a law cannot really be classified as a "law" unless it imbibes within itself the ideals of justice and equity. Any enactment devoid of the object of substantive fairness can never be justified on the grounds of meeting procedural fairness alone.

A judge in a modern democracy cannot be defined as one who merely states the law. A Judge holds a unique position in the democratic scheme. Firstly, he bridges the gap between social reality and law. Secondly, he protects the spirit and the values of the Constitution. It is courts and judges who balance formal democracy with substantive democracy.

We are living in a complex society that is always evolving. The transition is driven by knowledge, science and technology, quality human resources and a host of other factors. In ensuring that the transition occurs in a fair and just manner, the role of a person holding a position in the judiciary or governance becomes extremely crucial. It is their decisions at critical junctures that influence the growth and progress of humanity.

Since, the theme of todays' lecture is "Life of a Judge", I would largely confine myself to the role of a judge in contemporary society. With legal jurisprudence growing leaps and bounds, the role of a judge has undergone sea-change in all respects.

Till a few decades ago, expectations from a judge were limited to the resolution of a dispute between parties before the courts. Now, every conceivable problem in society is expected to be addressed by the judiciary. People want the judiciary to guide them in every turn of their life.

The journey to become a judge is full of aspirations. Till date, practice before the Constitutional Courts is a dream for many and is accessible to a select few. For a system based on equality and equity, the practice of law in India is yet to enter the domain of equal participation and representation.

Access to opportunities, right from legal education to the legal profession, is largely dependent on one's socio-economic conditions. The struggles are multiplied when the person is a first-generation professional. Without a nurturing hand or support system, legal practitioners belonging to smaller places or disadvantaged socio-economic groups cannot easily find a platform.

In the past seven decades, the process to appoint judges to the Constitutional Courts has undergone a lot of change. One positive outcome of this is increased inclusivity with persons from deprived backgrounds finding place on the bench.

I felt that it may not be in-appropriate to refer to my background in this context.

I was born in a family of farmers in a village. English was introduced when I was in the 7th or 8th standard. Passing 10th grade was considered a great achievement. After obtaining a BSc degree, encouraged by my father, I finally ended up with a degree in law.

I began my practice in a magistrate court in Vijayawada for a few months. Once again, encouraged by my father, I moved to Hyderabad to begin my practice in the High Court of Andhra Pradesh. It was definitely a leap of faith for me.

By the time I received the offer for judgeship, I had established a good practice. I had appeared from Taluq level courts to the Supreme Court in several high profile matters. I was also appointed as the Additional Advocate General of my State. I was keen on joining active politics, but destiny desired otherwise. The decision to give up something for which I had worked so hard, was not easy at all.

The journey from the bar to the bench is often not natural.

Over the years, I had built my career and life around the people. But, I knew, if one chooses to cross over to the other side of the bar and join the bench, one has to give up all his social connections. For years together, the life of judge is spent in isolation and social alienation.

Particularly in a country such as ours, judges are not mere arbiters of disputes. They are also administrators of justice. In order to administer justice, the judges must be aware of the social realities and should not be confined as a social recluse. We must understand that impartiality and independence are a state of mind. However, the undeniable fact is that our engagement with society undergoes a drastic change once we take up judgeship. There is a view that a judge should have continued connection with the society. But sections of society have certain perceptions about judges moving around in social circles. The choice is difficult. But, I personally believe that one must remain connected with the society and be aware of social realities and the problems of the people.

Now, most of the judges of Constitutional Courts begin their judicial career from their successful legal careers. The most obvious sacrifice is monetary. One must be moved by a spirit of public service to take such a decision.

As lawyers, our minds are trained in the pursuit of one-sided arguments. It is the pursuit of justifying one side of a coin. On the other hand, a mind of the judge is trained to appreciate competing claims, to appreciate not just facts and rules but also equities.

As Socrates said a long time ago: "Four things belong to a judge: to listen courteously, to answer wisely, to consider soberly and to decide impartially".

The responsibility of judging is extremely burdensome owing to the human implication of our rulings. Every litigant enters the courtroom with an expectation of obtaining justice. The burden of sentencing an accused, deciding the custody of a child, deciding the right of a tenant or a landlord, calculating the value of a human life in an insurance case – they all take a toll on our mental wellbeing. We spend sleepless nights rethinking our decisions. After all, like all other humans, even judges are fallible.

Judges in the apex court are entrusted with the task of delivering the final verdict. As it seals the fate of parties, the stress is much more at the highest level. It is an onerous responsibility, which we take extremely seriously.

There exists a misconception in the minds of the people that Judges stay in ultimate comfort, work only from 10 am to 4 pm and enjoy their holidays. Such a narrative is untrue.

A few months after becoming a judge in the High Court, I got to see Justice Satya Brata Sinha for the first time, when he came to Hyderabad as my Chief Justice. It is from Justice Sinha that I have understood, what hard work means. He never took leave from court. Even when on tour during the weekends, he would take along a stenographer in the train or car and dictate judgments. I was deeply influenced by Justice Sinha's work ethic. He was known for his dedication, hard work, patience, and independence. In the process, he neglected his health. He used to warn us as to never follow his way of doing things. Sadly, since I could not put this advice into practice, the results are taking a toll on my physical health.

It is not easy to prepare for more than 100 cases every week, listen to novel arguments, do independent research, and author judgments, while also dealing with the various administrative duties of a Judge, particularly of a senior judge. A person who has no connection with the profession cannot even imagine the number of hours that go into preparation. We spend many hours reading the paper-books and making notes for matters listed the next day. Preparation for the next day begins soon after the court rises, and will go on beyond mid-night on most days. We continue to work even during weekends and Court holidays to do research and author pending judgments. In this process, we miss out on many joys of our lives. Sometimes, we miss out on important family events. At times, I wonder if my grandchildren would recognise me at all after failing to see them for days together.

Therefore, when false narratives are created about the supposed easy life led by Judges, it is difficult to swallow.

People often complain about the long pendency of cases at all levels of the Indian judicial system. On multiple occasions, I have highlighted the issues leading to pendency and backlog. I have been strongly advocating the need to revamp the infrastructure, both physical and personnel, to enable the judges to function to their full potential.

One of the biggest challenges before the current day judiciary is prioritising the matters for adjudication. The judges cannot turn a blind eye to the social realties. The Judge has to give priority to the pressing matters in order to save the system from avoidable conflicts and burdens.

On this occasion, I shall not fail to place on record my worries about the future of judiciary in this country. Every case is equally important for a judge. The burden on an already fragile judicial infrastructure is increasing by the day. There have been a few knee jerk reactions in augmenting infrastructure in a few places. However, I haven't heard of any concrete plan to equip the judiciary to meet the challenges of the foreseeable future, leave alone, a long term vision for the century and ahead.

Judges and judiciary have no power or authority to introduce a uniform system. The executive also has its own limitations, as it may not be able to appreciate the needs of the judiciary. It is only with the coordinated efforts by the judiciary and the executive that this alarming issue of infrastructure can be addressed.

In my opinion, the need of the hour is to initiate a multi-disciplinary study, where scientific methods can be used to equip our judiciary for the future. With the growth of the economy and population, a sustainable method of dispensation of justice needs to be modelled. The reality, given the current situation, is that we are simply not equipped to handle the rising challenges of the future. If the judiciary suffers, our democracy suffers. This is a serious issue.

Doing justice is not an easy responsibility. It is becoming increasingly challenging with each passing day. At times, there are also concerted campaigns in media, particularly on social media against judges. 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 the right and the wrong, the good and the bad and the real and the fake. Media trials cannot be a guiding factor in deciding cases.

Of late, we see the media running kangaroo courts, at times on issues even experienced judges find difficult to decide. Ill-informed and agenda driven debates on issues involving justice delivery are proving to be detrimental to the health of democracy. Biased views being propagated by media are affecting the people, weakening democracy, and harming the system. In this process, justice delivery gets adversely affected. By overstepping and breaching your responsibility, you are taking our democracy two steps backwards.

Print media still has certain degree of accountability. Whereas, electronic media has zero accountability as what it shows vanishes into thin year. Still worse is social media.

Owing to the frequent transgressions and consequent social unrests, there is a growing demand for stricter media regulations and accountability. In fact, looking at recent trends, it is best for the media to self-regulate and measure their words. You should not overstep and invite interference, either from the government or from the courts. Judges may not react immediately. Please don't mistake it to be a weakness or helplessness. When liberties are exercised responsibly, within their domains, there will be no necessity of placing reasonable or proportionate external restrictions.

I urge upon the media, particularly the electronic and social media, to behave responsibly. You are as important a stakeholder as we are. Please use the power of your voice to educate the people and to energize the nation in our collective endeavor to build a progressive, prosperous, and peaceful India.

If we want a vibrant democracy, we need to strengthen our judiciary and empower our judges. These days, we are witnessing increasing number of physical attacks on the judges. Can you imagine, a judge who has served on the bench for decades, putting hardened criminals behind the bar, once he retires, loses all the protection that came with the tenure? Judges have to live in the same society as the people that they have convicted, without any security or assurance of safety.

Politicians, bureaucrats, police officers and other public representatives are often provided with security even after their retirement owing to the sensitiveness of their jobs. Ironically, judges are not extended similar protection.

The judges of the constitutional courts enjoy wider discretion while rendering justice. Especially in a country as socially diverse as India, judges must have a very practical approach while laying down the law. They need to be humanistic and compassionate, as their opinions have differing impacts on different classes of people. Another aspect behind the idea of discretion is to allow the judges to do complete justice, in each set of facts and circumstances. To do complete justice, a good judge needs to be aware about the practical outcome of his decisions.

Particularly, in a common law system where the law progresses with precedents, judges are important stakeholders in shaping the democracies. If the judge's role is confined to adjudicating disputes, if the judge is barred from interpreting the constitution and laws, it would be difficult to imagine the fate of our democracy.

One gets to hear that judges, being unelected, should not get into legislative and executive arenas. But this ignores the Constitutional responsibilities that is placed on the judiciary.

Judicial review of legislative and executive actions, is an integral part of the Constitutional scheme. I would go as far as to state that it is the heart and soul of the Indian Constitution. In my humble view, in the absence of judicial review, people's faith in our Constitution would have diminished. The Constitution is ultimately for the people. The judiciary is the organ which breathes life into the Constitution.

I am very happy that the institution that I hail from has filled certain gaps in the Constitution in the interest of public at large. It is interpretation by the judiciary, that have sustained and reinforced the faith of the people in the republic and the democracy. No doubt, the Judiciary holds a special position in our constitutional scheme. The judiciary has, by and large, lived up to the responsibility entrusted to it by the framers of the Constitution. For our people, it continues to be the most trusted organ of the State.

Our experience of past 75 years has proved beyond doubt that the parliamentary democracy is the best suited for a country as diverse and as complex as India. Only a flourishing and vibrant democracy can lead our country on the path of peace, progress and global leadership. And a strong judiciary is the ultimate guarantee for the rule of law and democracy. Hence, our collective endeavour should be to strengthen the judiciary which in turn will further strengthen our democracy.

On a personal note, yes, the opportunity to serve as a Judge came with tremendous challenges but I have never regretted a single day. It is definitely not a service but a calling.

I would like to conclude the lecture with my tributes to Justice Satya Brata Sinha. May the life and achievements of Justice Sinha inspire generations of young lawyers. My greetings to Madam Utpala Sinha, Mr. Abhijeet Sinha, Mr. Indrajit Sinha and Ms. Navanita Sinha and other members of Justice Sinha's family. Madam Utpala Sinha has been a strong pillar of strength for Justice Sinha and family. She took great care of him all through. For the success of their children, the whole credit goes to Madam Utpala Sinha.

I thank the hon'ble Chief Justice of Jharkhand High Court, Brother Justice Ravi Ranjan for honouring me with the opportunity to inaugurate two brand new sub-divisional court complexes at Chandil and Nagar Untari.

I am happy to note that these court complexes will have six and seven judicial officers respectively and are equipped with State of the art infrastructure. I hope this brings justice delivery closer to the people in these two sub-divisions.

I also thank Prof. Keshava Rao for organising the inaugural Justice S.B Sinha Memorial Lecture.

My best wishes to the Children who received scholarship today under Project Shishu. My blessings and best wishes to you all for a successful future.

Thank You".



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