President Pranab Mukherjee today said reforms in judicial system should not disrupt the fine balance among the legislature, executive and judiciary.
Referring to judicial activism and assumption of a “wider role” by judiciary, President Mukherjee said, “The assumption of this wider role has at times courted opposition for its deviation from the principles of the separation of powers. Yet, some of the positive contributions that such activism have spawned are unquestionable.”
“But, I would need to add a cautionary note here — the fine balance existing in every democracy with each of the three organs of the state, the legislature, executive and judiciary, playing their designated roles should not be disrupted,” said Mukherjee, addressing an international seminar here on ‘Recent Trends in Judicial Reforms: A Global Perspective.’
He said the three organs should not step into or play the role that the constitution has not assigned to them.
“The fundamental principle is contained in the assertion of Charles Montesquieu that there can be ‘no liberty’ when either legislative and executive powers are combined in the same entity or when the judicial powers are not separated from the legislative and executive,” he said.
However, he expressed concern over the large pendency and expensive justice by saying it amounts to denial of justice. “In India, justice is time consuming and expensive. The large pendency of court cases is a cause for concern. The total pendency in the subordinate courts and high courts in the end of 2011 calendar year was over 3.1 crore cases,” he said.
“The pendency in the end of 2012 calendar year in the Supreme Court was over 66,000 cases. Delay further adds to the costs. Therefore, in many ways it amounts to denying justice and this is against the principle of equality that is the bedrock of democracy," the President said.
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Mukherjee said the judicial reform is pivotal for enhancing the quality of justice which is core of human existence and welfare of any society. "It is simply the fundamental goal of all societies. This is the reason why the human civilisation has been locked in a constant struggle to achieve higher standards of fairness and equity. The endeavour is timeless with societies borrowing new practices from each other achieving higher standards of justice and more commonality in laws and procedures in the process," he said.
He said the efficacy of the judicial system will depend on its capacity to deliver justice to all irrespective of their social or economic standing in the society and in our country, the judiciary has risen to this call departing from its traditional role of only settling disputes.
"Consequently, the role and expectation from the judiciary have also changed to encompass justice in its wider term," he said adding that to accomplish this goal, "the existence of rule of law is a priority, with the highest standards of transparency, and the deliverance of speedy justice at affordable costs, being the two legs that give life and soul to the precept." "These are the components that the judiciary should focus on to implement the "justice oriented approach". Justice delivered with these goals can only live up to the highest standards of the ideal. "It would, therefore, be necessary to effect organisational and procedural changes in the judiciary from time-to-time to address the exigencies of time. Yet the path to achieve it is varied and there is no consensus on the reforms that need to be embraced for it," the President said.
Mukherjee also referred to the 18th Law Commission's report which suggested steps like utilising full working hours of the court, more application of technology such that cases with similar points are clubbed for a combined decision, specifying a time limit for oral arguments and for arriving at decisions and curtailing vacancies in the higher judiciary. He said these are some of the measures worth considering. "I have full faith in the genius of our judiciary to find the way forward to effect reforms in the judicial system so as to sustain the faith of the common man in the justice delivery process," he said. "We must engineer change to reduce the backlog of court cases and the experience of the legal luminaries from around the globe who are present here, may be able to share their experience on how they tackle such issues in their respective countries. Worldwide experience reveals that important lessons can be gleaned from experiments conducted in different countries," he said. Mukherjee also stressed upon the need to meet the challenges arising out of technological and globalisation which has led to crumbling of the traditional notions of state boundaries. "Technological advancements have created an interconnected world that has helped virtually unlimited exchange and transmission of information, the conduct of commercial transactions and social networking. "These developments have thrown up new challenges and opportunities for all the organs of the government. Globalisation which is the engine of transformation, demands newer approaches," he said adding that in such scenario, legal frameworks will have to change.
President Mukherjee also observed that "there is perhaps a growing need to equip our respective national judiciaries to deal with the emerging international legal paradigm more effectively," given the complexities of international law, including legal entitlements and implications of multilateral and bilateral treaties and agreements. "The legal frameworks across nation would have to change to facilitate smooth market transactions, rule of law, promote transparent and predictable outcomes and establish democratic governance structures through such transformation, security and human rights in societies," he said. "In the light of the far-reaching changes gripping the world, there may be a need to broaden the jurisdiction of the International Court of Justice at the Hague beyond those involving trade, business and commerce. "This is required in the context of disputes that arise on account of transnational commercial operations. The need to allow legal professionals to practice without hindrance in all countries needs to be deliberated by the international legal fraternity. "The need also arises as small developing countries are inadequately equipped due to lack of expertise in the intricacies of world agreements and its dispute settlement mechanisms," he said.