LAWYERS’ CONFERENCE

Mumbai Regional Congress Committee

06 March 1999

CONGRESS PRESIDENT’S ADDRESS

Murli Deora ji

Prataprao Bhosale ji

Sharad Pawar ji

Ramarao Adik ji

Suresh Keshwani ji

Distinguished Guests

Friends:

I would like to congratulate the Mumbai Regional Congress Committee on this important initiative.

There is a virtual breakdown in civic life in Mumbai and other parts of Maharashtra. Citizen can no longer take law and order for granted. People are frightened of holding a wedding, buying or selling a house, renting a shop, acquiring a scooter or a car, for fear of extortionists and their menacing, anonymous calls.

Kidnapping, abduction and ransom were once the problem of the super-rich. Now, the ordinary citizen is being held hostage to the nexus between the underworld and business, the underworld and the trades union movement, the underworld and the entertainment industry, the underworld and politics. Democracy is being jeopardised by the criminalisation of politics and the politicisation of crime. In some areas there is a deplorable nexus between politics and crime. It is, therefore, most important that the MRCC took this initiative in calling together such a distinguished group of lawyers, jurists, intellectuals and concerned members of the public to deliberate on what has gone so wrong and how we are to restore safety to the citizen and ethics to our public life. The two are closely inter-related.

We can trace the root-cause of the accelerating attach by criminals on our civic life to the perceived collapse of our judicial system. I stress the word "perceived": whether the judicial system has actually become dysfunctional is a matter for debate. What is beyond question is that large sections of our society are turning to extra-judicial authorities in their search for justice. A landlord looking to get a recalcitrant tenant out, a tenant seeking protection from an avaracious landlord, families involved in property disputes, businessmen looking for small loans outside the regular banking system, start by thinking that gangsters (goondas) can settle their problems which the courts are going to take ages to do. Before they know what has happened, they become victims of the agents they have hired. Until faith in the judicial system is restored, criminality will continue to be a substitute for the law. The other side of the coin is the absence of fear among criminals of the police and authority. Unless criminals are actually intimidated by what Shakespeare called "The awful majesty of the law", not only will they be a law unto themselves, they will impose jungle raj on lok raj.

The laws’ delays must be ended for society to be governed by sense, sensibility and legality. It is estimated that there are thirty million cases pending in the courts. Every additional act of crime adds to the backlog. The rate of conviction is, in any case, abysmally low. According to some estimates, the conviction rate for murders is today just 15 per cent compared with 80 per cent in the ‘80s. Murderers and rapists know the chances of their getting away with it are in their favour. Lower order offenders have even less reason to fear the law catching up with them.

Judicial reform must, therefore, begin with a conscious decision to vastly increase the number, range and specialisation of judicial authorities. In the United Kingdom, there has been for centuries a system of justices of the peace, eminent local personalities endowed with some, if limited, judicial powers. In the United States, judges up to the district level are elected, with the result that the administration of justice is initially part of the popular democratic process. In India too, we have had a tradition of nyaya panchayats. In fact, the panchayat, in its original conception, was, primarily, an instrument of law and order, a means of conciliation and arbitration within the community.

When Rajivji launched his bold endeavour for constitutional protection to the panchayats, he viewed Panchayat Raj primarily as the most effective means of encouraging economic development and promoting social justice. he had intended to institutionalise nyaya panchayats as the necessary adjunct to the regular panchayats to deliver expeditious and inexpensive justice to the people. He had similarly intended to establish mohalla-level judicial machinery that could perform the same function in urban areas. Let me remind you of Rajivji’s words in his statement to the Lok Sabha introducing the 65th Amendment. He said:

"We are also conscious of our work on the panchayats being unfinished because we have not yet dealt with the Nyaya Panchayats. Equally, in urban India, we need to complement responsive administration with the quick delivery of justice."

Establishing the institutions of grassroots justice will be a top priority for the Congress.

Of course, Nyaya Panchayats and Mohalla-level judicial institutions cannot be a substitute for court decisions involving all the details of the law. But if they facilitate out-of-court settlements, if they bring lawyers together not in an adversarial role, as in the courts, but as conciliators jointly advising their clients on how disputes can be settled, it might be possible to reserve the judicial process as a whole to matters where litigation is unavoidable.

In the absence of this, the courts have got clogged. What we have is not justice but stay orders. Where the Congress as a party can contribute to rectifying the delays of the present system is by panels of lawyers voluntarily, and as a public service, assisting litigants in reaching out-of-court settlements.

At the higher echelons of our judicial system, it is shameful that the numerous reports of our Law Commissions should be gathering dust. Eminent jurists, among them the finest minds our country has seen, based on their experience of decades, have shown us the way to judicial reform. We have allowed ourselves to be so overwhelmed by immediate problems relating to the judiciary that fundamental and far-reaching reform has been neglected. The Congress will dust out the recommendations and push for implementing as wide a range of improvements as required as quickly as possible. This will include the living conditions of the judiciary, especially at munsif and other lower levels. Without reasonable standards of living for the judiciary, we are only inviting corruption to corrode the judicial process. Lawyers and intellectuals like yourselves can make a truly constructive contribution by evolving a consensus within Party forums, such as the Legal Cells, on what must be done to mesh in grassroots justice with the highest standards of judicial rectitude in the judicial system as a whole.

Judicial reform will work only if it is linked to reform of the police system. As with Law Commission Reports, so with Reports of numerous Police Commissions, these have been reduced to literary endeavours instead of being transformed into calls for action. I had referred earlier to the nexus which the criminal underworld has established with various sections of society. I would like to make special mention of the nexus, which we must acknowledge, between the underworld and the police. If this nexus is not cut, the fence will continue to eat the crop. It is police officers themselves who are best placed to tell us how to end the criminalisation of their ranks. We must listen to them and act on their recommendations. For our part, I want to stress with all the emphasis at my command that there will be no place in the Congress for those who attempt to build their political careers by becoming bridges between the goonda and the thana.

There is another word of caution which I believe it to be my duty to sound. People are so threatened by the inroads which criminals have made into our everyday lives that drastic solutions, flouting the canons of law, are sometimes mistakenly advocated. We cannot become a more law-abiding nation by making our judicial standards less exacting. Basic principles of the law - innocent until proved guilty, proof of guilt beyond reasonable doubt, multiple layers of appeal, due process - all these are a precious inheritance. They may delay the delivery of justice but they cannot be supurned for that reason. A kangaroo court is no court; lynch law is no law. Judicial rectitude is of the essence for preserving the law, ensuring respect for the judicial process, and ensuring the impartiality of magistrates and judges in the interpretation of the law. Therefore, quick-fix solutions are out. Judicial reform will be pursued by the Congress only in keeping with the highest judicial standards. That is essential for the preservation of fundamental human rights and the democratic character of our polity.

To preserve judicial rectitude we must set up appropriate constitutional mechanisms for judicial accountability. Such mechanisms, however, must be consistent with the independence of the judicial system. The Congress Party believes that the process of appointment of judges must be made more transparent and mechanisms must be set in place to widen the consultation process. The objective must be that the judiciary is constituted of men and women of unquestionable integrity and competence. This is to ensure a strong, efficient and independent judiciary; the foundation of a live democracy. The issue of transfer of judges from one High Court to another is also a sensitive issue and must be handled delicately and with transparency.

I cannot help but comment upon the sharp need to make our system of legal education stronger and quality-oriented. To improve the quality of the legal profession and consequently the quality of the Bench, it is necessary to get rid of mushrooming legal institutions which are virtually teaching shops granting degrees unequipped with infra-structure and incapable of quality teaching. Standards of legal education must be raised, laws must encourage setting up on institutions of high quality and the entry of all those passing out of law school into the legal profession must also be systematised. The mere holding of a law degree need not be passport to the legal profession. The Congress Party will scrutinize existing laws and try to amend them to improve the quality of the legal profession.

We tend to blame the legal system for delay in court proceedings. We forget to recognise the fact that the judge-population ratio in India is the lowest when compared with other democratic nations. Whereas in countries like Australia, Canada, the United Kingdom and the United States of America no less than 50 judges serve a million people, in India there are less than 11. Unless we can persuade States to give priority to the setting up of new courts to serve our citizens, delays in courts will continue to be major impediments in the efficient functioning of our judicial system. The State must not forget that it is only when the people of our country have faith in their judicial system, it is only when the majesty of law is upheld that the nation will feel secure to move ahead. Steps, therefore, must be taken to broaden the judicial base so that there is a quick and efficient resolution of legal disputes. Where necessary, alternative disputes resolution mechanisms must be encouraged to lighten the burden of courts.

I must, at this juncture, express my concern at pending legal proceedings holding up major developmental projects in India. It is the responsibility of the judiciary that projects of fundamental significance in the field of infra-structure development, which are closely linked to our immediate needs, are not bogged down by court procedures. I have faith in the judiciary's capacity to take appropriate steps for the quick resolution of such disputes. If necessary, we must think of ways and means to amend the laws in certain selected areas of activity to ensure a quick and speedy disposal of such disputes.

Thank you for the care and attention with which you have broached the complex task at hand. We have no expectations of the present State government taking any worthwhile steps in this direction in the few months of office that remain to them. It is they, after all, who have inspired the ingress which criminalisation has made into the politics of this state and this city.

"Protection for All" and "Justice for All" are the clarion calls the Congress must sound as the people of Maharashtra make up their minds on how thoroughly to end these terrible years of law-makers and law-breakers sitting on the same side of the table.

Thank you,

Jai Hind.