Ladies
and Gentlemen, at the outset, I am thankful to the organisers
of this Conference for having given me an opportunity to inaugurate this
Conference and share my thoughts with you all. The Conference is indeed a
timely one as the role of Courts in upholding Rule of Law is getting more prominence
than ever before. I am reminded of what Aristotle said about two thousand years
ago regarding Rule of Law. He said that it is more proper that law
should govern than any one of the citizens. Rule of law enjoins every
citizen to be treated subject to100 law. Though
there is no express mention about Rule of Law in our Constitution,
Articles 13, 14, 15, 16, 19,120 ///
20, 21, 22 and 368 provide for the inviolability of fundamental
rights of the citizens. They are protected from all State actions which are
inconsistent and in derogation of constitutional guarantees to
protecting fundamental rights.
In the
earlier days, the role of courts was confined only to solving disputes between
two individuals. But gradually, courts have emerged as key participants
in the public policymaking process exercising discretion to make
decisions which have far reaching consequences in200terms of the
distribution of benefits and burdens within society. The powers of
courts have grown in step with the spread of ‘rights’. If the other branches of
the Government do not respond to the demands of the society, courts240 /// have to step in so that the
interest of the public is safeguarded. Courts are very often left with no alternative
but to step into the vacuum of policy left by the executive. Legislative as
well as executive acts of omission and commission may attract the
wrath of judicial scrutiny when laws or other legislations or
rules are inconsistent or300 in
derogation of the fundamental rights offending the Rule of Law.
There
is a great expectation among lawyers and activists in favour of judicial
review of executive decisions but at the same time, the courts have
to be careful in not crossing the line. Our Constitution has checks and
balances for the harmonious functioning of executive, legislature
and judiciary. Separation360 /// of
powers works within the parameters of checks and
balances with the sole purpose of ensuring protection of rights as well
as interests of the individuals and efficient administration to
accomplish the task of social welfare State. The functions of400 the different branches of the Government have
been sufficiently differentiated by the Indian Constitution and it does
not contemplate assumption by one organ or part of the State, of
functions that essentially belong to another. Thus, while embarking on the
judicial review, the courts have to keep in mind the rights and
responsibilities of the other two organs and ensure that they are not
stepping into the jurisdiction of the other organs.
I will
be failing in my duty if480 ///
I do not point out here about the role the lower courts have to play in
upholding the rule of500 law.
As you may be aware, pursuing claims in the lower courts is a
difficult process. Yet the litigants prefer to pursue the claims mainly
because of the faith they repose on the system that the judicial process has legitimacy
and that the judges are comparatively more trustworthy than their
legislative and bureaucratic counterparts. Therefore, the lower courts
have a560 duty to preserve and protect
the economic and social rights of individuals at the grassroots. This we
can ensure by providing more resources and greater financial commitment to the
lower courts. The judges of the lower courts are overburdened and600 the immediate need of the lower courts are
additional Judges. Already the Hon’ble Supreme Court of India and the
Government of India are taking steps to double the strength of Judges and
proposals have been sent to the State Government also.
Next,
if real changes are to be made, there needs to be a culture shift within
the lower courts. It must begin with the lawyers, whom the litigants approach
first. The lawyers have to advise their clients properly and guide them through
the complicated maze of procedures in the lower courts. However, many of the
lawyers at the grassroots700 level
suffer from lack of critical skill-sets. It is primarily because the legal
education they receive within their law colleges720 /// often is inadequate. Books are
outdated; English, which is the formal language of legal precedents
from the upper courts, is not emphasized; and the infrastructure of the law
college buildings is pathetic. In most of the law colleges, there
is no opportunity to educate students through clinics or to engage them in critical
analysis of the daily problems that they are likely to encounter in
practice. If they are trained, it will go a long way in not only uplifting800 them but also will help in improving the
plight of the litigants. At this juncture, we are proud to say that the
Tamil Nadu State Judicial Academy is in forefront in organising training
programmes for lawyers so that their contribution840 /// for the healthy judiciary would be
more. Though it is unavoidable that conflicts do arise between
the judiciary and executive, we have to bear in mind that the courts are complementary
to the democratic process.
Here I
would like to re-emphasise the relevance of rule of law in today’s time.
‘Rule of Law’ is a combination of interconnected notions of governance,900 rights, justice and development. These notions
pervade throughout the Constitutional principles and decisions of
the Supreme Court. At the same time, there are large parts of the
populations for whom these ideas are merely on paper. Access to Justice
therefore is a crucial pre-requisite before ‘Rule of Law’ can be really
upheld. The role of Courts in this endeavour is960 /// immense as the Indian Courts today
are not just for dispute settlement, but they are guardians for the trust of
its citizens. The higher judiciary has played an important role in ensuring
greater ‘access to justice’ through ‘Public Interest Litigation’1000 and other procedural innovations. Yet, the
structural limitations of such orders have prevented a substantial
increase in access to justice. It is here that I have tried to emphasise
on the significant role of the lower judiciary. Structural reforms
aside, I truly believe that a slight change in approach while dealing with
the administration of justice would go a long way in ensuring greater
‘access to justice’ and upholding the ‘rule of law’ as a result. I
hope the participants1080 of
this Conference will make best use of the deliberations here. The
National Judicial Academy and the Tamil Nadu State Judicial Academy are doing great
service in having this subject as the theme of the Conference since convergence
of different minds will bring more clarity to the more important subject
and it will be an educating tool to the practitioners of law as
also Judges. I hope the participants of this Conference will make
best use of the deliberations here.1160
