Justice Surya Kant, speaking during the webinar
Justice Surya Kant, speaking during the webinar

"Am I going to do injustice to some third party who is not even before me?" a question that judges face: Surya Kant J. on Judicial Activism

The judge made the observation while speaking during a webinar on "Contemporary Perspectives on Access to Justice and Judicial Reforms" hosted by the Tamil Nadu Dr Ambedkar Law University on Saturday.

Lydia Suzanne Thomas

The Tamil Nadu Dr Ambedkar Law University (TNDALU) organised a webinar on Saturday to discuss Contemporary Perspectives on Access to Justice and Judicial Reforms.

The seminar’s panelists were Supreme Court Judge Justice Surya Kant; Justice MM Sundresh of the Madras High Court; Senior Advocate of the Supreme Court V Giri and Vice-Chancellor of the TNDALU Professor TSN Sastry.

The discussions, moderated by Madras High Court Advocate Naveen Kumar Murthi, dealt with various dimensions of access to justice.

In his welcome address, Professor Srinivasan, TNDALU spoke of Constitutional provisions that promoted the idea of “free legal aid”, in particular Article 39-A of the Constitution, as well as the Supreme Court’s dicta on legal aid in Hussainara Khatoon v. State of Bihar. The Professor also spoke of case pendency and the need for efficiency. The judiciary needs to reform, he said.

Some of the areas touched upon by the speakers thereafter included the role of technology in justice delivery, the rising dependence on alternative dispute resolution mechanisms (ADR), the working of legal aid, tribunalisation, and ensuring justice to “invisible litigants.

Responding to a question on the role of judicial activism, Justice Surya Kant stated that the Court was required to consider the existence of invisible persons whom the litigation would be affecting, even if they are not directly before the Court.

Once a matter is before a judge as per the roster, he has to decide it on the basis of his conscience, he said.

"Am I going to do injustice to some third party who is not even before me?" is a question that may have to be considered by a judge, he observed.

He went on to recall that during his term as a High Court judge, he came across a case which would have affected the rights of four minor girls who were virtually orphaned and who were not parties in the case. Justice Kant said that over the course of around five years, he passed orders to ensure that the girls were educated and that the proceeds from the auction of their property was used towards their benefit.

"Now I am happy that those girls are happy and well-settled.. by the time I left the High Court", Justice Kant said.

You must remind yourself of your responsibilities as a part of a Constitutional Court”, Justice Kant emphasized. Once you are reminded of these duties, there can be substantial justice, he added.

On the impact of virtual courts on access to Justice

While speaking on the impact of the virtual court on access to justice, particularly in light of the pandemic, Justice Surya Kant began his response by commenting on the efficiency of the Court system itself.

Commenting on the issue of case pendency, Justice Kant observed that the weak enforcement of rights was an allied issue that had to be resolved. Access to Justice, he said, “is an inalienable right which cannot be ignored at any cost.

National Virtual Seminar on Access to Justice, organised by Tamil Nadu Dr. Ambedkar Law University, Chennai
National Virtual Seminar on Access to Justice, organised by Tamil Nadu Dr. Ambedkar Law University, Chennai Screengrab

Stating that there is a deficit in access to justice, a “desirable virtue”, he quoted Justice Brennan of the American Supreme Court that,

"Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us pull things down ...”
Justice William Brennan, US Supreme Court Judge

Internet and technology have helped remove various barriers to access, and convenience that hinder access to justice, he went on to note.

Virtual Hearings, which “were only an experiment a couple of months ago, have now become the ‘new normal’”, implemented to improve accessibility to Courts in light of the pandemic, he commented.

Justice Suryakant went on to list three benefits of video conferencing in court hearings:

  1. Erasure of geographical limitations for Indian lawyers, allowing them to participate in proceedings across borders and in various parts of the country;

  2. Balancing professional fee structures; and

  3. Fostering communication.

Criminal Justice System needs overhaul, Justice Sundresh

Responding to a question on reforms needed in the criminal justice delivery system, Justice Sundresh remarked that “a complete overhaul of the system" was required.

Each case being a journey towards truth and we should concentrate on the offence committed, he commented. The investigation should follow the evidence rather than the accused, he further stated

“Unfortunately, the system we have today is ‘accused-centric’ rather than ‘offence-centric’."
Justice Sundresh observed.
Justice M M Sundresh, speaking during the webinar
Justice M M Sundresh, speaking during the webinar

Drawing upon the Supreme Court’s guidelines in the Prakash Singh v. Union of India, Justice Sundresh spoke of the need to demarcate the “law and order and investigations” branches of the police force. He illustrated the need for such a clear demarcation with examples from the pandemic lockdown.

The pandemic witnessed increasing numbers of crimes against children, domestic violence, excessive use of force by the police, and the failure of the police to investigate, he observed.

Explaining that a dedicated investigation branch would help bring offenders to justice expeditiously, Justice Sundresh said that police officer in the present situation is additionally burdened with enforcing social distancing norms and COVID-19 guidelines as well.

"Now the same people managing the pandemic are investigating a number of cases, final reports are not being filed. Law students will know the (implications of) not filing the report", he observed.

As for the use of technology, while Justice Sundresh accepted that it could be used in the legal system, he expressed his doubts about its use in criminal trials, particularly in the examination of the accused or for the cross-examination of prime witnesses.

Noting the demeanour of an accused is vital in a criminal trial and this cannot be done effectively in a virtual hearing, he said. Other witnesses such as experts, medical professionals, police, child witnesses, etc. could be examined over video, he opined.

Remarking that case pendency was a result of several factors including non-cooperation of key witnesses, he concluded by emphasizing the need for criminal justice reform.

Justice Sundresh also spoke of accessibility to legal aid.

Legal aid under Article 39-A would involve access to justice and legal awareness, he explained.

The existent legal services authorities should ensure that financial assistance, as well as ‘quality’ legal advice, are given to litigants, he said.

With an increase in awareness, the number of cases filed increases, he observed. He stated further that a crime accused was to be extended legal aid at each stage of the proceedings, right from the “pre-arrest stage”. Not providing legal justice would result in an infraction of Rule of Law, Justice Sundresh emphatically observed.

Setting-forth that the quality of the panel of lawyers providing legal aid is to be enhanced, he remarked that the need of the hour is not justice but “qualitative justice” so we can enhance the quality of legal aid to those “languishing at the bottom.

Virtual courts should not be viewed as temporary

On being asked about his thoughts on the adoption of a “delicate mix” between video conferencing and physical court hearings to solve issues of case pendency, Justice Kant commented that we must not think of virtual courts as a temporary replacement of physical courts.

Justice Surya Kant noted that it was well-acknowledged that a “substantial part of procedure could be conducted using technology", and that COVID-19 had compelled such an adoption.

To deal with the perceived docket explosion he said that a mix of virtual and physical courts is ideal. He added that he had deliberately employed the word “perceived” to qualify docket explosion, given that case pendency data did not distinguish between cases pending for years and cases that were not yet ready for hearings.

He spoke of the need to interlink virtual hearings into the present system, with several procedures except substantial arguments being conducted over video.

Justice Sundresh and Senior Advocate Giri agreed that video conferencing hearings were not a “temporary replacement for Court proceedings.

Referring to those who do not have internet acces, Justice Kant added,

“We must ensure that there is no creation of a new marginalised class.”
Justice Surya Kant

Those uninitiated in Law should not be part of Tribunal Benches, Giri

Senior Advocate Giri noted that tribunals are here to stay, unless the Government decides otherwise.

Senior Advocate V. Giri speaking during the webinar
Senior Advocate V. Giri speaking during the webinar

He, however, remarked that persons “not initiated in law” would not be able to appreciate aspects of procedure which could lead to chaos in the working of tribunals, when such persons are appointed.

He observed that the Government, through amendments, has allowed persons who do not have legal experience to sit on tribunal benches. This is not a correct approach and it will have to be curbed, Senior Advocate Giri opined.

Only practitioners of law or persons who have presided over adjudications should be appointed to tribunals, especially tribunals which deal with complicated questions of law and which would require a serious adjudicatory process, he said.

Practical training has to be brought about in Legal Education, Prof Sastry

Professor Sastry, Vice-Chancellor of TNDALU was asked to respond on the need to train law students and inculcate in them the value of ensuring quality access to justice.

Professor Sastry said that this could be better done by practical training, given by practitioners rather than theoreticians.

He urged that members of the Bar, Bench, and Jury should be involved in academia. He opined that retired judges should teach in law schools and do train law teachers. He added that senior advocates should come forward to impart drafting skills, argumentative skills etc.

A thorough revamp of the legal education system is required, he said.

Professor Sastry, TNDALU, Chennai
Professor Sastry, TNDALU, Chennai

He also commented on the need to bring down case pendency as a facet of ensuring access to justice. Access to justice does not lie in merely enabling the filing of cases, but you have to see that the dispensing system is quick, he said.

To this end, he advocated for the division of the Supreme Court into a Principal Bench at Delhi and Supreme Courts of Criminal Judicature and Civil Judicature. Further, he also advocated for increasing the retirement age for judges.

The webinar concluded a little after 1 PM with salutary remarks by Justices R Mahadevan and T Raja of the Madras High Court and a vote of thanks by Professor Ranjit Abraham of the TNDALU.

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