INAUGURAL ADDRESS BY HON. DR.
JUSTICE A.S. ANAND, THE CHIEF JUSTICE OF INDIA
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AT THE SECOND ANNUAL MEET OF THE STATE LEGAL SERVICES AUTHORITIES HELD AT HYDERABAD ON
OCTOBER 9, 1999
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Hon. Justice S.P. Bharucha, Hon. Justice Majmudar, Hon. Chief Justice
Liberhan, Justice Hanumanthappa, Executive Chairman, A.P. State Legal Services Authority,
Executive Chairman of the State Legal Services Authorities, Members of the Central
Authority and distinguished guests:
I am very happy to be here with you in this ancient city of Hyderabad
on the occasion of the Second Annual Meet of the State Legal Services Authorities.
Hyderabad has a place in the history of this country. The holding of this Meet today at
Hyderabad has added another feather in the cap of this city because the deliberations and
the decisions made here today would be a part of the legal aid history of our country. It
is my proud privilege also to be a part of legal aid revolution taking place in this
country.
The prevailing system of administration of justice, insulated from
political pulls and pressures has worked well. It is a matter of pride that the judiciary
in our country enjoys credibility far greater than that enjoyed by the other two
institutions of the State. There may be some cracks but the system has neither collapsed
nor it is on the verge of collapse that it may warrant a replacement. There is, however,
always scope for improvement through reforms. The Lord Chancellor in England initiated
certain reforms in the administration of justice and one of the reforms proposed by him
was in the area of judicial appointments. He advocated the setting up of a judicial
commission, with himself being the head of judiciary. The proposal, however, invited much
criticism. Michael Beloff, QC, one of the leading public law silk and President of Trinity
College, Oxford, in a submission to the Royal Commission on Reform of the House of Lords,
said :"My thesis is that the highest court in the land should not be staffed by
judges who are simultaneously members of the Upper House, and that the Lord Chancellor
should no longer perform judicial functions." His reason? The famous aphorism that
justice should not only be done but be seen to be done. It is no longer appropriate that
judges should "police laws in whose making they have a constitutional role". The
law lords, he says, should lose their legislative role and the Lord Chancellor his
judicial one". The law lords, he says, should lose their legislative role and the
Lord Chancellor his judicial one"" (As reported in Legal Diary, Law Supplement,
the Times (London) September 14, 1999).
The Lord Chancellor faced with the criticism against the proposal of a
Judicial Commission, records Frances Gibb in his article, which appeared in the Times,
London, of 7th September that "on judicial appointments, he (Lord Chancellor) has
rejected the idea of a Judicial Appointments Commission. But he has thrown the system open
to scrutiny by Sir Leonard Peach Commissioner for Public Appointments". That is where
the matter rests in England today - what shape it takes tomorrow, no one knows.
The Arrears Committee headed by Justice Malimath, of which I was also a
Member, in its report of 1989-90 in para 7.37 had emphatically observed that the present
constitutional scheme was sound and if worked in true spirit, did not require any radical
change. The Committee firmly believed that in case its recommendations in respect of wider
consultation for appointment of Judges was given effect to, then there would not be any
need to substitute the present system by any National Judicial Commission. The Chief
Justices' Conference also was unanimously of the same view. Wider consultation by a
Collegium is one reform initiated this year itself, which deserves a fair chance to prove
its worth. None can deny that justice delivery institutions of our country have handsomely
won the trust of our people and have remained unscathed during times of test and
turbulence, which in itself is a guarantee of the strength of the selection system for
judicial appointments.
However, in order to preserve the faith of the people in the
administration of justice and rule of law, we have to ensure that judiciary as a whole
remains vibrant and effective and timely steps are taken to accelerate its growth to meet
peoples' expectations and reduce the backlog of cases by providing speedy and inexpensive
justice. The number of cases at State levels of the hierarchy is frightening, the time
taken in the disposal thereof is disheartening and the tendency of some to take recourse
to extra-judicial methods to redress their grievances is alarming. In the context of this
situation only, last year I wrote letters to all the Chief Justices of the High courts
calling upon them to ensure that all more than seven years old matters pending in district
courts must get decided within this year only. I had christened the year 1999 as
"Year of Action". I eagerly await the outcome of my call at the end of this
year.
Legal Aid functionaries, though not directly involved in the disposal
of legal matters, are vitally concerned and connected with the administration of justice
because of their statutory duty to ensure that none in the country suffers injustice on
account of poverty, ignorance or some other disability. I have no hesitation in
acknowledging that in the course of about a year and a half, since NALSA became
functional, numerous schemes and programmes have been introduced to make legal services
effective and meaningful. This House today would be examining the achievements and
failures and take decisions to remove the bottlenecks and loopholes, if any.
I am especially happy to see that Brother Justice Bharucha, as the
Executive Chairman of NALSA, has taken keen interest in ensuring proper implementation of
the schemes and programmes introduced by NALSA and has kept legal literacy and legal
awareness at the top of the Agenda. In a country where majority of the people still live
below poverty line, where millions and millions have never gone to a school and the
society still discriminates on the basis of sex, religion and caste, legal literacy and
legal awareness is the only road which can lead the suffering majority to the door of
equality -social, economical and political. Legal Services functionaries therefore, have a
very vital role to play so as to nourish and safeguard the constitutional goal of
"equal justice for all". It is a matter of some satisfaction that in the last
one year about 8,06,088 cases have been settled by the Lok Adalats throughout the country.
Much more, however, still needs to be done.
For quite some time, I have been pondering over a question as to
whether Legal Services Authorities Act has really provided teeth to Lok Adalats to provide
speedy and inexpensive justice to the people of this country. We all know, the Act has
made Lok Adalats Awards enforceable like decrees of the civil courts. However, no Lok
Adalat can pass an Award unless both the parties agree and give consent to the passing
thereof. It is on account of its scenario that so far Lok Adalats have been more
successful in matters against Government and Government Departments and have been
comparatively less successful in settling disputes between individual litigants. In my
opinion, there will be no harm if Legal Services Authorities Act is suitably amended to
provide that in case, in a matter before it, the Judges of the Lok Adalats are satisfied
that one of the parties is unreasonably opposing a reasonable settlement and has no valid
defence whatsoever against the claim of the opposite party, they may pass an award on the
basis of the material before them without the consent of one or more parties. It may also
be provided that against such Awards, there would be one appeal to the court to which the
appeal would have gone, if the matter had been decided by a court. To start with, the
exercise of powers in this regard may be confined to money suits or such other matters as
may be identified by NALSA. This I feel would give added powers and jurisdiction to Lok
Adalats and would discourage unscrupulous litigants, who either avoid appearing before Lok
Adalats or after appearing take a rigid and unreasonable stand to oppose a just, fair and
reasonable compromise. This course, I think, would give relief to a very large number of
litigants coming to Lok Adalats at pre-litigative stage as well as in pending matters. For
example, a wife claiming maintenance from her husband may not be sent back disappointed by
Lok Adalat if her marriage and the income of her husband is established by documentary
proof. Similarly, a landlord who is not getting rent from his tenant may also get relief
from Lok Adalat if Lok Adalat Judges find that the relationship of landlord and tenant,
rate of rent and last payment is established on record, but the tenant is avoiding
amicable settlement without any justification whatsoever. May I call upon this House to
deliberate over this suggestion, and, if found, feasible, initiate steps for recommending
appropriate amendments(s) to the Legal Services Authorities Act.
Another matter which causes me deep anguish and pain is prolonged
confinement of undertrial prisoners in jails, pending their trials. Most of these
undertrial prisoners are involved in petty offences and are likely to get benefit of the
Probation of Offenders Act or a light sentence. However, courts cannot decide their cases
before a Police Report is filed and the matter is taken up for trial. They have to wait,
wait and wait. On account of their poverty, backwardness and other limitations, they are
not in a position to furnish bail bonds and as such, they continue to suffer
incarceration. Many of them get exposed to criminal tendencies during such confinements
only and come out fully trained criminals. It is true that Legal Services Authorities Act,
1987, (as amended) does not permit Lok Adalats to take cognizance of criminal matters
which are not compoundable under any law and most of these undertrial prisoners are
involved in non-compoundable cases. I tried to get information regarding the number of
such undertrial prisoners from National Crime Bureau, New Delhi but they are not
maintaining statistics regarding such undertrial prisoners. However, I am informed that in
Central Jail, Tihar only as on 31.7.99, 9091 prisoners were confined awaiting their trials
and judgements. According to one survey, out of the total jail population in the country
undertrial prisoners constitute 73%. The total jail population is estimated to be 2,57,235
out of them 2,49,046 are males and 8,189 are females. The total undertrial population is
1,88,341 out of them 1,82,174 are males and 6,167 are females. The undertrial prisoners
are, thus not only overcrowding the prisons, which leads to multiplicity of problems but
are also leading to rise of crime in jails itself. About 3% out of total undertrial
prisoners are those who are involved in petty offences under the Gambling Act and about
the same number are involved in petty offences under the Excise Act. I am sure, if an in
depth study is made, it would be found that majority of these prisoners although involved
in non-compoundable offences, are not involved in very serious offences and are not likely
to get jail terms of severe punishment. A letter sent by Superintendent, Central Jail,
Tihar is revealing. It says that most of undertrials are very poor and many are in jail
even in Bailable offences. They are there only because of the fact that they belong to a
lower strata of the society where nobody is willing or is in a position to stand surety
for them for their release on bail. May I call upon this House to consider my suggestion
that in every District, the Chief Judicial Magistrate concerned may hold his Court in Jail
at least once or twice in a month and take up the cases of the undertrial prisoners who
are petty offenders or first offenders and may be very keen even to confess their guilt
but have been languishing for a long time. On the application of such undertrial prisoner,
the CJM may direct the investigating agency to expedite the filing of the police report
against him so that after the framing of the charge, the undertrial prisoner may be
awarded appropriate punishment in accordance with law. This exercise, I feel, would prune
a large number of cases of those undertrial prisoners who have committed offences and are
inclined to plead guilty but have to wait for months together pending presentation of
challans against them by the Police. In other cases challans can be transferred to the
courts of competent jurisdiction for trial in accordance with law.
Before parting, I may emphasise that our country needs a judiciary
which cares for its people and is willing to come forward in every possible way to provide
quick justice to all. I want every Judicial Officer to be a legal aider, totally committed
to the goal of "equality before law".
With these words, I inaugurate this Second Annual Meet of the State
Legal Services Authorities and hope that the deliberations made herein would prove to be a
milestone in the achievement of the aims and objects of Legal Services Authorities Act.
Thank you very much.
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