Issues of judicial ethics, accountability, performance of judges and judicial independence examined closely by judges, lawyers, law teachers and students at National Law University, Odisha.

Cuttack, January 21: A two-day National seminar titled “Judiciary, Ethics and Justice Delivery in India”, organised by the Institute of Objective Studies, New Delhi in collaboration with National Law University, Odisha, began here today. The occasion was graced by the august presence of chief guest Naveen Patnaik, the chief minister of Odisha, along with eminent persons like Justice Dipak Mishra of the Supreme Court of India (as the chief speaker) and Prof. Mool Chand Sharma, former vice-chairman, University Grants Commission and presently vice-chancellor, Central University of Haryana (as the guest of eminence) in the inaugural session. This session was presided over by Justice Gopala Gowda, Chief Justice, High Court of Odisha and chancellor, National Law University, Odisha.

The first day of the seminar saw paper presentations by students and academicians from reputed institutions all across India like Christ College, Bangalore, most National Law Universities in the country and University of Petroleum and Energy Studies, Dehradun.

Day II
January 22, Plenary Session

The second day’s plenary session, chaired by Prof. (Dr) P. Ishwara Bhat, vice-chancellor, National University of Juridical Sciences Kolkata, featured Prof. (Dr) V. Vijay Kumar, vice-chancellor, Tamil Nadu Dr Ambedkar Law University, Chennai, as speaker.

L-R: Chairperson of the session Prof. (Dr.) P. Ishwara Bhat, Vice-Chancellor, National University of Juridical Sciences, Kolkata; Prof. (Dr.) V. Vijay Kumar, Vice-Chancellor, Tamil Nadu Dr. Ambedkar Law University, Chennai

Prof. Vijay Kumar delivered a learned and erudite lecture on “Judicial Appointments: Structural and Functional Reforms.” He prefaced it with, “The Indian Constitution happens to be the best-written and worst implemented Constitution.” The functioning of state machinery had drifted from the written word, leading to misgovernance and malfunction in public life, he said.

The Constitution had made the judiciary “the last policeman”, who should never be slighted. Keeping in view the judges’ exalted position in view, the British and American system had fixed no retirement age for them. Now, a time had come when this last policeman had become someone beyond reproach. Even “impeachment” moves ended up in failure. (Interestingly, in India it is not referred to as impeachment, but by a more neutral phrase, “the removal of judges.”)

Speaker: Prof. (Dr.) V. Vijay Kumar, Vice-Chancellor, Tamil Nadu Dr. Ambedkar Law University, Chennai

“Judges are protected by the Constitution,” Prof. Kumar said. Among the less pleasant aspects of appointment of judges of the Supreme Court was its “parochial” nature in the sense that judges from all states of India must be represented at the apex court. Then, judges from all religious communities had also to be there at the Supreme Court. These considerations, Prof. Kumar observed, detracted from merit. “How does it matter whether a judge is a Christian or a Muslim as long as he or she is a good judge?”, he asked.

In theory, as laid down by the Constitution, the Executive will have no role in the appointment of judges, while the fact remains that the Executive is involved all along the process of appointment of judges of higher judiciary. The Ministry of Law, the Ministry of Home Affairs and the Prime Minister’s Office are crucial in such appointments. “The President of India, in consultation with the Chief Justice of India” is more clearly involved. Judicial independence is constrained by these and other related facts.

Prof. Kumar said there were too many inadequacies in the process of the selection and appointment of judges that reflected in the quality and integrity of the judiciary. In India, because of the laxities, the sons, daughters, daughters-in-law, sons-in-law, nephews and nieces of judges, too, became judges. On the contrary, the US system was more strict. “They have extensive dossiers on people who are to be appointed as judges,” he said. The dossiers included even such details as how many times they were married and divorced.

Another point that militated against the quality of High Court and Supreme Court judges was their low salary compared to good lawyers, who earned far more than the judges did. Explaining the reasons of heavy backlog of cases in the High Courts, he said that one of the reasons was that judges’ vacancies in these courts were not filled.

While such anomalies continue in the mainstream, former judges are getting paid astronomical sums for their work in arbitration. “A judge gets as much as Rs. 1.5 crore for preliminary proceedings, that is, pre-conference payment”, he pointed out.

Legal hair-splitting and politico-legal manipulation further muddied the scene, Prof. Kumar said. Legal provisions like “proceedings to remove a judge must be concluded in the same session of Parliament as these are initiated” effectively ensures that no judge is removed by Parliament.

Manipulations lead to a judge finding a less humiliating way of exiting service through resignation than facing the ignominy of removal by Parliament.

Speaker: Prof. (Dr.) P. Ishwara Bhat, Vice-Chancellor, National University of Juridical Sciences, Kolkata

“Mercy petitions to the President for sparing prisoners on death row awaiting hanging need serious and urgent attention of the President. They gather dust for up to 14 years in the Rashtrapati Bhawan.” On the contrary, the resignation of Justice Ramaswamy was accepted the same day by the President. This effectively aborted the bid of Parliament to remove him because a judge whose resignation had already been accepted could not be removed, he explained.

In his presidential address Prof. Bhat summed up the remarks of Prof. Kumar.

Business Session IV

The theme for Business Session IV, chaired by B K Mohanty, former Advocate General of Odisha, was “Constitutional Morality: Ethics and Judicial Accountability.” The key speaker on this theme was Prof. (Dr) PK Sarkar, professor of law at Utkal University and chairman, PG Council, Utkal University.

L-R: Dr. R. Venkat Rao, Vice-Chancellor National Law School, Bangalore; Chairperson of the session Mr. B.K. Mohanty, Former Advocate General, State of Odisha; Prof. (Dr.) P.K. Sarkar, Professor of Law, Utkal University and Chairman, PG Council, Utkal University

“The idea of judicial accountability is not new for Western countries, but in India it is still evolving,” Prof. Sarkar pointed out. Endorsing Prof. Kumar’s views on the issue, he said that some limits on judicial activism were required to keep judicial powers within well-defined boundaries.

Speaker: Prof. (Dr.) P.K. Sarkar, Professor of Law, Utkal University and Chairman, PG Council, Utkal University

“Judges expect to keep a check on the Legislature’s and Executive’s excesses, but who will check judicial excesses?”, he asked. He also posed the question as to who would enforce judicial accountability, Parliament or the Supreme Court?

Speaker: Dr. R. Venkat Rao, Vice-Chancellor National Law School, Bangalore

He said the Indian judiciary was moving away from its moorings in the British judicial system and getting closer to the American system. “We are moving towards the executivisation of the judiciary and towards a review of judicial function by civil society,” he claimed.

Speaker: Mr. B.K. Mohanty, Former Advocate General, State of Odisha

Business Session V

The theme of this session, chaired by Justice L. Mohapatra, Judge High Court of Odisha, also was “Constitutional Morality: Ethics and Judicial Accountability.” The key speaker was Prof. (Dr) V.D. Sebastian, professor of law, KIIT School of Law.

L-R: Chairperson of the session Hon’ble Mr. Justice L. Mohapatra, Judge, High Court of Orissa; Prof. (Dr.) V.D. Sebastian, Professor of Law, KIIT School of Law

Prof. Sebastian defined constitutional morality as “a mandate for upholding individual dignity and social morality through a legal order.” Under this scheme of things the justice system was called upon to deliver justice within the constraints of law, he elaborated. He added that a little restructuring of judiciary would have made it more effective.

The situation had come to such a pass that it was being used by rich people, big companies, big bureaucrats, Prof. Sebastian observed.

Speaker: Prof. (Dr.) V.D. Sebastian, Professor of Law, KIIT School of Law

He pointed out issues involved with jurisdiction and procedure that often hindered justice.

Shenanigans like the judicial versus the administrative and traditions inherited from the British Civil Service like excessive weightage to seniority adversely affected the quality of justice.

Justice L. Mohapatra presented a robust defence of the integrity of judges. He said most of the corruption being talked about was confined to the administrative staff of courts, including the staff working as administrative assistants to judges.

Speaker: Hon’ble Mr. Justice L. Mohapatra, Judge, High Court of Orissa

The judges had to work with lawyers, some of whom could be involved in unfair practices. Overworked judges, who had been working even on Saturdays, and Sundays, were already under great pressure. Inflicting wild charges on them would be grossly unfair, he said.

Corruption in the judiciary began in the 1980’s and court clerks began to be bribed. Co-operation from lawyers was not always forthcoming, he said.

About the mounting backlog of cases in the higher courts, he said the only way of checking the growth of backlog, was restricting entry to fewer cases. However, restricting admission to a manageable number of cases would be like “pre-empting the recourse to justice.”

One way of coping with the mounting pressure of backlogs would be for the states to increase the number of courts and judges. Giving the example of Odisha High Court he said by March end there would be only 13 judges against the required number of 35. He advised law students to join judicial service.

A participant in this session, Navneeta Dash, a student of GLC, Mumbai, said that 77 percent of Indians believed the judiciary was corrupt, according to Transparency International.

Regarding the backlog of cases she said it would take 400 years to clear them.

Another participant, Dr Zafar Mahfooz Nomani, Associate Professor at AMU, said that “the ethical residue” had been often missing from the judiciary. However, it had greatly helped the cause of environmental movement in India by “dramatically inserting environmental rights in their judgments.”

Business Session VI

The theme of this session, chaired by Prof. (Dr) Afzal Wani, former dean faculty of law, Indraprastha University and member Law Commission of India, was “Judicial Appointments: Structural and Functional Reforms.” The key speaker was Prof. Kumar Kartikeya, assistant professor of law, KIIT School of Law. Prof. Kartikeya pointed out a series of flaws in the system and suggested corrections.

L-R: Prof Krishna Mahajan, Dean School of Law National Law University Odisha; Chairperson of the session Prof. (Dr.) Afzal Wani, Former, Dean, Faculty of Law, Indraprastha University and Member, Law Commission of India; Prof. Kumar Kartikeya, Assistant Professor of Law, KIIT School of Law

In his presidential address, Prof. Kartikeya said that judicial appointments should be made in a way that the judges’ independence from the Executive and their efficiency was assured. In India, Executive officers used to function as judicial officers also since the days of Warren Hastings.

Speaker: Prof. Kumar Kartikeya, Assistant Professor of Law, KIIT School of Law

Rule of law and protection of human rights should be the guiding values for judges. For a smooth functioning of judiciary, “the Executive cannot be excluded, but its role in judicial appointments should be limited,” he opined.

Prof. Krishna Mahajan of the National University of Law, Odisha, quoting a senior judge, said 50 percent of judiciary was corrupt. One of the reasons for this was the appointment of lawyers representing “smugglers and terrorists” as High Court judges. He pleaded for opening judicial appointments to public scrutiny.

Speaker: Prof. Krishna Mahahan, Deen School of Law, National Law University, Odisha

In his presidential address Prof. Wani summed up the discourse with the plea to integrate local legal knowledge sources and traditions to the Anglo Saxon inheritance of the Indian judiciary.

Speaker: Prof. (Dr.) Afzal Wani, Former, Dean, Faculty of Law, Indraprastha University and Member, Law Commission of India

As an exemplar of uprightness, he quoted the famous case of Imam Abu Hanifah, who refused to be appointed as a judge. For that he was jailed and tortured, but he stood his ground and did not accept the position even though several of his disciples later became renowned judges.

Valedictory Session

The valedictory address was delivered by Prof. (Dr) P. Ishwara Bhat, vice-chancellor, National University of Juridical Sciences, Kolkata.

L-R: Dr. M. Manzoor Alam, Chairman IOS; Prof. (Dr.) P. Ishwara Bhat, Vice-Chancellor, National University of Juridical Sciences, Kolkata; Hon’ble Mr. Justice V. Gopala Gowda, Chief Justice, High Court of Orissa and Hon’ble Chancellor, National Law University; Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, National Law University, Odisha and Mr. B. K. Biswal, Registrar, National Law University, Odisha

Prof. Bhat mainly summed up and endorsed the views of Prof. Moolchand Sharma and Prof. Afzal Wani. He pleaded for safeguarding constitutional morality which would, in turn, protect national identity and human rights.

About judicial accountability and judicial independence he observed that accountability and independence reinforced each other.

He said that a lot of insights and ideas must have emerged from the two-day proceedings and hoped that the university would build on that experience.

The IOS chairman, Dr Mohammad Manzoor Alam, gave an account of the eleven conferences held so far in India that were part of the 14 conferences planned to celebrate IOS Silver Jubilee.

He said in this age of fast changes, knowledge was spreading too fast, without getting deeper. “The youth are tomorrow’s leaders, and their knowledge has to be both extensive and deep,” he said.

In his remarks the NLUO vice-chancellor, Prof. Faizan Mustafa, said that the Supreme Court had shrunken over the years. “In the 90’s it had 93 benches, today there are only nine.”

Speaker: Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, National Law University, Odisha

He explained that it was not the Supreme Court that was supreme, but the Constitution. “The judges should keep themselves restrained within the Constitution,” he advised.

In his presidential address the Chief Justice of Odisha High Court, Justice V. Gopala Gowda, congratulated Prof. Mustafa and Dr Alam on holding such a fruitful conference.

He pleaded for economic justice as without it social justice was not possible. Nor was political justice possible without it. “Constitutional morality is guided by Fundamental Rights,” he explained, and added that social transformation was crucial for political morality.

Speaker: Mr. B. K. Biswal, Registrar, National Law University, Odisha

For all this to fall in place, he said, gender justice must be ensured. If people refusing to pay alimony to divorced wives failed to understand the issue of gender justice, the force of law would make them understand it, he warned.

“To the judges,” he said, “Constitutional morality is the mantra.”

VIEWS OF AUDIENCE

The following were awarded during the two-day conference:

1. Prof MQ Khan (Former VC Behrampur University Orissa)
2. Ms Farhat Amin
3. Syed Yusuf Iqbal Chief Advisor Muslim Youth Cultural Association
4. Ms Meera Ghosh Sr Advocate
5. Mr SBA Tanweer Social Activist (Odisa Muslim Development Council, Coordinator All India Backward & Minority Community Employees Federation)