Title: CHALLENGES FOR JUDICIARY POST LIBERALIZATION
Subject : Sociology
Name and Roll No. : Monarch Pandya
Semester : V
Under The Guidance of : Dr. Deb Hota
GLS Law College,
Academic Year 2017-18
Table of Contents
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Declaration 3 3
1 Introduction 4 6
2 Review of Literature 7 10
3 Discussion of the main Topic 11 13
4 Conclusion 14 14
5 References/ Bibliography/End Notes 15 –
I Monarch Pandya Roll no. :41 declare the work entitled “CHALLENGES FOR JUDICIARY POST LIBERALIZATION” being submitted to GLS Law College, Gujarat University for the project in the subject of Sociology is original and where the text is taken from the authenticated books, articles or any other web sources appropriate reference is given.
It is true to the best of my knowledge.
Name: Monarch Pandya
Roll No: 41
GLS Law College,
The role of the judiciary is highly important in any democracy. More specifically it has enhanced itself to a great extent post development of welfare state and liberalisation. The Judiciary is known for delivering many land mark and prominent judgments that has improved the conditions of life for a number of groups and individuals. At the same time, it is constantly exposed to new challenges and new dimensions. Indian Judiciary today faces many impediments like huge amount of delay and pendency of cases, inappropriate Judge Population ratio, lack of infrastructure, lack of funds, faith in the system, accessibility, impact of legislations, procedural pitfalls etc. It is fighting to keep the faith of the people in the institution alive by dealing with various obstacles in the way of quick and qualitative dispensation of justice.
Many highly specialized areas of law like Intellectual property, Corporate law, Cyber law, Human rights, Alternative dispute resolution, International business transactions, are emerging and we have to be updated with new laws and amendment to provide timely and qualitative Justice. With the increasing challenges, the role of judicial institutions has also increased many folds. The concept of Judicial education has tremendously changed and the stake holders of Justice delivery system have also increased. The Judicial Institutions have to align its role of imparting Judicial education with the Judicial functioning. The Institution has to contribute as a change agent to assist judges in Managing change. As per Charles Darwin “It is not the strongest of the species that survive, nor the most intelligent, but the one most responsive to change.”
The most important function of Judge is adjudication of disputes which not only impacts the parties involved, but also the society at large. Judicial reasoning is said to be both an art and a science to be developed by judges by his knowledge, skills and attitude. The factual positions with the important legal position have to be analyzed before passing any Judgement. In criminal proceedings, the judge has to perform another important function of awarding an appropriate sentence to the guilty and awarding of compensation to the victim. The sentencing has assumed a critical role in criminal justice administration. Similarly, the adjudication of rights of parties and calculation of damages in a civil court is a challenging function of a Judge. With the emergence of Jurisprudence in various dimensions in substantive and procedural laws makes the assignment of a judge in criminal trials, Civil adjudication, family dispute settlements, juvenile justice etc, a very challenging task. The judge cannot afford to be obsolete in Justice Dispensation System.
In addition to above, he has to manage the docket and the Court staff for effective results. He has to maintain cordial relations with the bar along with a message of impartiality and competence. The Improvement of Justice delivery cannot be confined to the Judicial Officers. The stake holders of the legal system have to be developed for working towards a better legal system. The effective administration of justice is based on the competent Lawyers, Government pleaders, Ministerial staff of courts, Prosecution Officers, Members of Juvenile Justice Boards, Mediators etc. It has now become essential that these stake holders are trained to have positive synergic development of legal system for fulfillment of constitutional goal.
They need to be trained at the one centre like the National training Centres for Judiciary so as to implement better coordination amongst all the functionaries. The 13th Finance Commission has recommended for judicial reforms under which, funds have been allocated for enhancing quality of adjudication through training programmes and also for infrastructural improvements. The recommendation includes the development of judicial academies/institutes. Apart from this, allocations for enhancing support to Lokadalats, promoting Alternative Dispute Resolution, training for Public Prosecutors, creation of posts of Court Managers in every judicial district etc. have also been carried out. Five years period is slightly short to improve the long drawn maladies which have emerged out during last several decades. It may therefore be suggested that under the 14th Finance Commission also, all the existing measures for improvement must be extended.
Emphasis is laid on improving quality of justice and also sensitizing the judicial officers towards speedy justice delivery and marginalised section of the society. In imparting training, emphasis is upon the attitudinal change particularly for women, children, weaker section and senior citizens etc. Henceforth it can be seen that not only has the system of dispensation of justice by judges become complex, but also the fact that there are other administrative and departmental work to be done by them may be under the tribunals set up or under any other scheme set forth by the government. Post liberalisation period, the challenges for the judges have increased on a huge rate with respect to daily working, affairs and management. Some of these have been analysed critically in this paper presentation.
Review of Literature
The said assignment would critically analyse the impact of economic and political liberalisation and the approach of the judiciary towards it. Analysing the economic part of it first, it would be prudent to mention certain backgrounds which existed before the Courts to analyse the scheme of Economic Liberalisation. The reform process in India had been initiated with the aim of accelerating the pace of economic growth and eradication of poverty.
Since independence, India had followed the mixed economy framework by combining the advantages of the market economic system with those of the planned economic system. India’s economic reforms began slowly in the 1980s, and then accelerated under the pressure of an external crisis at the beginning of the 1990s. But over the years, the economic policy enacted in 1991 resulted in the establishment of a variety of rules and laws which were aimed at controlling and regulating the economy and instead ended up hampering the process of growth and development.
From reading this assignment one can get general understanding that how the governmental policies affect the citizens of the country that is whether the policies bring about changes in the interest of the country as a whole or whether there is infringement of people’s rights and only a certain section of the population benefit from these policies. It also examines that whether the exercise of power by the government in view of these reforms does not an unreasonable restriction on the rights and freedom of others.
The process of economic liberalization in India began in the year 1991 with the objective of introducing the new neo-liberal policies including opening of international trade and investment, deregulation, initiation of privatization, tax reforms, and inflation-controlling measures but over the years the overall direction of liberalization has since remained the same, irrespective of the ruling party, although no party has yet tried to take on powerful lobbies such as the trade unions and farmers, or contentious issues such as reforming labour laws and reducing agricultural subsidies.
The aim of the economic reforms and the policies should be to increase the Gross Domestic Product and as well as ensure that there is equal distribution of national income among the population of the country. Unequal distribution leads to a development of disparities among the different sections of the society, thus resulting in creation of a feeling of inferiority among some people. Citizens would start believing that the rights granted to them by the Constitution of the country are being denied to them and there is favourable behaviour noticeable among the policy makers of the nation.
However there are serious questions about the credibility of these reforms since people have alleged that these reforms, instead of harbouring collective good, favour the higher strata of the society only, thus resulting in denial of rights and advantages of such provisions to others. There are also grave concerns as to till what extent the courts have the power to adjudicate the economic matters coming in the courts regarding the policies adopted by the government for the betterment of the economy.
The economy of a country must include an interpretation of public good which is based on the conception of justice. It should guide the reflections of the citizen when he considers questions of economic and social policy. An economic system is not only an institutional device for satisfying existing wants and needs but a way of creating and fashioning wants in the future. This idea was put forth by economists such as Marshall and Marx.
The reforms of 1991-1993 were not just about macroeconomic stabilization. It was about taking the first step towards freeing India from its old isolationism. For the first time in a millennium, India had the courage to face the real world—to compete in global export markets, to attract foreign investment, and to allow the messy hustle-bustle of free markets. Even more importantly, it opened itself intellectually and culturally to the outside world—a precondition for economic prosperity as well as a socio-cultural renaissance.
After the adoption of the new economic policy in 1991, there were problems faced by the importers in the country mainly due to the Liberalization of trade and foreign investment – the ‘globalization’ aspect of India’s reforms –has not been sufficient to promote widespread competitiveness, nor to overcome or rectify the poor state of India’s infrastructure. Thus the economic reform agenda in India remained lengthy as well as complicated.
Response by the Indian Judiciary
It is interesting to note the rather conservative approach of the Supreme Court of India while interpreting the economic policy of the Government of India. The most celebrated case in this context is Balco Employees Union vs. Union of India and others; the relevant extract is quoted hereafter: “47. Process of disinvestment is a policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to “trial and error” as long as both trial and error are bona fide and within limits of authority. There is no case made out by the petitioner that the decision to disinvest in BALCO is in any way capricious, arbitrary, illegal or uninformed.
From its nascent stage, the apex court in India has struggled with the issue of striking equilibrium between economic and social reform programmes on the one hand and establishing the credibility of India by fostering respect for rule of law, on the other.
Further, the judicial reforms initiated to enhance administration, including the introduction of the National Legal Services Authority (NALSA) under the Legal Services Authorities Act, 1987, the constitution of Lok Adalats to amicably settle and compromise the disputes pending in the courts, the providing of free and competent legal aid to the poor and weaker sections of the society in consonance with Article 39A of the Constitution, the establishment of specialized tribunals, both administrative and internal (for instance Administrative Tribunals and the Armed Forces Tribunal) as well as tribunals dealing with the disputes arising out of or associated with economic activities such as Competition Appellate Tribunal, Securities Appellate Tribunal etc. have shown a great impact on the Indian society with reference to their working.
Discussion of the Main Topic
The vitality of law as a living organism is primarily dependent on the judge’s ability to pour life into it when the circumstances so demand by making new inroads into the law. Undoubtedly, no other Constitution can be found envisaging such a detailed cluster of provisions regarding a country’s highest judicial organ, as the Indian Constitution. The Supreme Court of India is one of the most potent judicial organs in the world today, and it plays a fundamental role in determining constitutional jurisprudence in India.
In the early phases of post-independence, the Supreme Court grappled with the problem of striking an equilibrium between programmes of economic and social reform (for example, the land reform and land redistribution policy during the late 1950?s and 1960?s) on one hand and instituting the credibility of the Indian State in terms of strengthening the rule of law and respecting the rights vested under the laws that preceded independence, and the very Constitution itself, on the other. However, the gradual movement towards judicial activism can be discerned from the 1970’s. In numerous constitutional decisions delivered by the Supreme Court, one of the most important among them being the Kesavananda Bharathi Case, the Court legitimated its interpretative method on the extent of parliament’s amending power under Article 368 of the Indian constitution, by referring to the interests of the people of India.
Expansion of judicial authority was witnessed in the post emergency phase, which saw the growth of the phenomenon of Public Interest Litigation (PIL), wherein the court reinterpreted the provisions of the fundamental rights liberally, in order to maximize the rights of the people, especially those of the disadvantaged sections of the society. The access to courts was facilitated by relaxing the technical rules of locus standi, along with other procedural and institutional innovations. The Court has been vigilant and pro-active in a plethora of cases, thereby adequately ensuring dynamism and vibrancy in the Indian Constitution.
Justice Krishna Iyer in the Fertilizer Corporation Kamgar Union Caseenumerated certain reasons for the liberalization of the rule of locus standi, namely that the exercise of state power to eradicate corruption may result in unrelated interference with individuals? rights and social justice which warrants liberal judicial review of administrative action and that the restrictive rules of standing are antithesis to a healthy system of administrative action and activism is essential for participative public justice.
Public Interest Litigation has therefore greatly widened the scope of access to justice as any public minded citizen is now given the opportunity to move the court in the interest of the general public. The Courts have given decisions in cases pertaining to different kinds of entitlements and protections, such as the availability of food, access to clean air, safe working conditions, political representation, affirmative action, anti-discrimination measures and the regulation of prison conditions among others.
The seeds of the concept of Public Interest Litigation in India were initially sown by Krishna Iyer J. in 1976, in Mumbai Kamgar Sabha v. Abdul Bhai Akhil Bharatiya Shoshit Karmachari Sangh (Railway) v. Union of India, saw an unregistered association of workers being permitted to institute a writ petition under Article 32 of the Constitution for the redressal of their common grievances. Later, the idea of PIL flourished in S.P. Gupta and Ors. v. Union of India.
Judicial Activism in India can be examined with reference to the review power of the Supreme Court under Article 32 of the Constitution, particularly in areas pertaining to public interest litigation. Through judicial activism, Supreme Court has played a pioneering role in the formulation of several principles like the Principle of Absolute Liability in Oleum Gas Leak Case, Public Trust Doctrine in Kamalnath Case etc. Furthermore, a host of guidelines were also issued by the Court in diverse cases of PIL like the Ratlam Municipality Case, Taj Trapezium Case, Ganga Pollution Case etc.
The Indian judiciary has sustained tremendous changes over the years and is still in the process of development in order to effectively administer justice in consonance with the government’s general policy. In addition to the setting up of courts and the enactment of legislation, electronic services have facilitated litigation process in the courts in an unprecedented manner resulting in faster dispensation of justice and case resolution, despite the heavy workload.
Amongst the most remarkable developments witnessed by the judiciary over the past few years is the diversity in cases adjudicated. Specialized courts and special committees have been instituted to handle cases with distinctive features. There has also been an increasing interest in regulating the legal profession, in what seems to be a serious move towards advancing the profession, taking into account the importance of this vital sector and its influential role in the judicial system. Thus, after the period of liberalization the courts have developed their way through by a series of judgments as shown above and also keeping in mind the increasing interests of the population of the country and the policy of social welfare and liberalization. After all these situations and conditions adverse to working, the judiciary is providing an efficient mechanism in rendering justice. Hence, the job of the judiciary and the judges has changed considerably and none of them have succumbed to this change rather the spirit of moving with it has been induced by the law and apex court itself.
In the end, as a conclusive note it is all of us who bring about change in society and thus unless our mental barriers towards reform are broken, all attempts for external remedies are bound to fail. We must remember what Gandhiji said:
“If you want to change anything, you be the change.”