by Sushil Kumar Jain.I recently come across this comment of my esteemed colleague, Shri Dushyant Dave, President of Supreme Court Bar Association in the matter of National Judicial Appointment Commission..“My Lords should wear a burqa and roam in the court corridors to hear the way lawyers talk about the judges of this court. You will get first-hand account of the rotting justice delivery system. The kind of lawyers who are being appointed as judges is a disgrace.” .The comment has made me introspect and reflect upon the relationship we advocates share with the Bench and the path this relationship has traversed in the last 50 years. The justice delivery system in any civilized society cannot function without the synergy between the dispensers of justice and the facilitators thereof..Traditionally, these two pillars on which the whole façade of justice delivery system rests, have worked in tandem, sharing and protecting each other for the greater good of society. The Bench has shown laudable effort whenever the need to protect the institution of advocacy has arisen and has copiously appreciated the assistance rendered by the Bar. The Bar has equally reciprocated the sentiment and strived to maintain the independence of judiciary, supporting the cause of the judiciary and also of the individual judges if need be..This Court had witnessed the solidarity of the Bar with the Bench in 1972-73, when three senior most judges of the Supreme Court were superseded as in a bid by the Executive to browbeat the judiciary. Subsequently, when the question of appointment of judges came for consideration in three judges cases – S.P. Gupta (1981), Supreme Court Advocate on Record (1993) and Re Special Reference (1998) the Bar again wholeheartedly supported cause of independence of judiciary. The collegium system for appointment of judges was welcomed to ensure impartiality and objectivity in judicial selections..But with time, a new picture emerged and the collegium system which was once hailed unanimously, showed signs of disarray to the extent that today, most of members of the Bar are opposed to it. This notable development seeks introspection and answers as to why the system found disfavour and why the confidence has shaken. Again, it would be unwise to point fingers at the Bench alone as the Bench function in tandem with the Bar and share a collective responsibility..Again, it would be unwise to point fingers at the Bench alone as the Bench function in tandem with the Bar and share a collective responsibility..I am part of the Supreme Court for more than 40 years. Having worked here exclusively, I have seen the ups and downs of this Court from close quarters. Earlier, maybe on account of lesser workload and relatively lesser paucity of time, there used to be a threadbare analysis of the case in hand, a hearing satisfactory to all the parties and judgments which were well reasoned. In those days, there was sacrosanct faith in the justice delivery system and this faith was shared by all the lawyers and litigants alike. Litigants may have lost the appeal or got an unfavourable order, but they did not lose faith. An appeal dismissed without hearing or without reasoned order was a rarity. Justice was participative and the cause of failure was known to the litigants..As awareness and technology made access to this Court easier, there has been an increasing number of matters in the Court. This increase is clearly outpacing the increase in infrastructure, which has resulted in mounting arrears. The patient hearing has been cut short to accommodate the growing number of items in the cause list. The statistics of disposal by individual judge is now seeking more attention than the quality of orders passed..The patient hearing has been cut short to accommodate the growing number of items in the cause list..In order to keep pace, the Hon’ble Judges are now resorting to one line orders often sans reasons to dismiss or allow appeals. These judgments may serve the temporary purpose of reducing the pendency, but are damaging the faith that the litigants and the people of this country repose in the Supreme Court..The growing dissatisfaction in the Bar and the litigants is a matter of alarm. The need for well reasoned judgments cannot be undermined. The inevitability of reasoned judgments has been very lucidly highlighted by the Hon’ble Supreme Court in Shama Jafri vs. Irfan (2013) 14 SCC 348:-.“…it is graphically clear that the deliberation by the High Court…has to be reflective of due cogitation and requisite rumination. It must reflect application of mind, consideration of facts in proper perspective and appropriate ratiocination…The reasons ascribed may not be lengthy but they should be cogent, germane and reflective…Giving reasons for an order is the sacrosanct requirement of law which is the aim of every civilised society. And intellect respects it.”.Apart from the above, reasoned orders have long term effect in reducing pendency, as it cuts down judicial uncertainties, which would serve as guides to the Bar and the lower judiciary in subsequent disputes. The well written, reasoned judgments become landmarks, and cutting down future litigations effectively. Thus, the very root cause of the problem of increasing arrears can be addressed by reasoned orders..Further, passing detailed orders elucidating reasons therefore also lends credence to the impartiality of the judicial system and keeps the allegations of bias and malafides at naught. Justice, they say, should not only be done, but should also appear to have been done. What could be a more manifest expression of “justice being done” than a well reasoned order passed after patiently hearing both the parties?.Another aspect that needs consideration here is the conflicting judgments that are delivered these days. Prior judgments on the issue are either not considered or distinguished on flimsy grounds, leading to judicial chaos and uncertainty. But in this, the Bar also has a role to play. Sir S. Varadachariar, Judge of Federal Court of India, in a speech published as “The Bench and the Bar, as I know them” cited (1954) 67 LW (JS) 127, highlighted the great responsibility of the members to the Bar to assist the Bench by presenting arguments in a brief and cogent manner and also by being prepared with the matter so that as little possible time is wasted of the Bench in delivering justice.Inefficient and incomplete assistance by the Bar, coupled with non-application of mind by the adjudicators on the precedents in the issues, is slowly gnawing at the pillars of the judicial system. But sometimes, even while giving reasoned orders the court is not applying their mind to serious arguments taken in the written submissions..Inefficient and incomplete assistance by the Bar, coupled with non-application of mind by the adjudicators on the precedents in the issues, is slowly gnawing at the pillars of the judicial system..It may not be out of place to state that in the justice delivery system, the executive governments are appointing lawyers on political considerations rather than their competence. They are not able to assist the court, causing extra burden on the court. The judges, to protect public interest involved in government matters, sometimes ignore even good arguments or important contentions, which lead to conflicting judgments..Another reason which is affecting the relations between the Bar and the Bench is one-sided change of rules and procedures. Earlier, the Bar used to be represented in the rule-making Committee. I myself, in capacity as the President of the Advocate-on-Record association, have been a member of the rule-making Committee. However, surprisingly, in the second term, neither the President of the SCBA nor the SCAoRA are members. Circulars after circulars giving practice directions without consulting the Bar are issued by the Registry in the name of Hon’ble Chief Justice of India. Matters are listed without proper notice and similarly delisted despite of Court orders..This causes unnecessary harassment to litigants and lawyers who come to the court from faraway cities and towns. They find difficulties in commuting and when their matters are decided in their absence, it causes great dissatisfaction affecting the psyche of the Bar and the litigants..The system, if it continues to work the way, it does in the present, is a prescription formula for anarchism. It therefore needs immediate attention and correction in a mammoth collective effort by both – the Bench and the Bar..The author is a Senior Advocate at the Supreme Court of India.
by Sushil Kumar Jain.I recently come across this comment of my esteemed colleague, Shri Dushyant Dave, President of Supreme Court Bar Association in the matter of National Judicial Appointment Commission..“My Lords should wear a burqa and roam in the court corridors to hear the way lawyers talk about the judges of this court. You will get first-hand account of the rotting justice delivery system. The kind of lawyers who are being appointed as judges is a disgrace.” .The comment has made me introspect and reflect upon the relationship we advocates share with the Bench and the path this relationship has traversed in the last 50 years. The justice delivery system in any civilized society cannot function without the synergy between the dispensers of justice and the facilitators thereof..Traditionally, these two pillars on which the whole façade of justice delivery system rests, have worked in tandem, sharing and protecting each other for the greater good of society. The Bench has shown laudable effort whenever the need to protect the institution of advocacy has arisen and has copiously appreciated the assistance rendered by the Bar. The Bar has equally reciprocated the sentiment and strived to maintain the independence of judiciary, supporting the cause of the judiciary and also of the individual judges if need be..This Court had witnessed the solidarity of the Bar with the Bench in 1972-73, when three senior most judges of the Supreme Court were superseded as in a bid by the Executive to browbeat the judiciary. Subsequently, when the question of appointment of judges came for consideration in three judges cases – S.P. Gupta (1981), Supreme Court Advocate on Record (1993) and Re Special Reference (1998) the Bar again wholeheartedly supported cause of independence of judiciary. The collegium system for appointment of judges was welcomed to ensure impartiality and objectivity in judicial selections..But with time, a new picture emerged and the collegium system which was once hailed unanimously, showed signs of disarray to the extent that today, most of members of the Bar are opposed to it. This notable development seeks introspection and answers as to why the system found disfavour and why the confidence has shaken. Again, it would be unwise to point fingers at the Bench alone as the Bench function in tandem with the Bar and share a collective responsibility..Again, it would be unwise to point fingers at the Bench alone as the Bench function in tandem with the Bar and share a collective responsibility..I am part of the Supreme Court for more than 40 years. Having worked here exclusively, I have seen the ups and downs of this Court from close quarters. Earlier, maybe on account of lesser workload and relatively lesser paucity of time, there used to be a threadbare analysis of the case in hand, a hearing satisfactory to all the parties and judgments which were well reasoned. In those days, there was sacrosanct faith in the justice delivery system and this faith was shared by all the lawyers and litigants alike. Litigants may have lost the appeal or got an unfavourable order, but they did not lose faith. An appeal dismissed without hearing or without reasoned order was a rarity. Justice was participative and the cause of failure was known to the litigants..As awareness and technology made access to this Court easier, there has been an increasing number of matters in the Court. This increase is clearly outpacing the increase in infrastructure, which has resulted in mounting arrears. The patient hearing has been cut short to accommodate the growing number of items in the cause list. The statistics of disposal by individual judge is now seeking more attention than the quality of orders passed..The patient hearing has been cut short to accommodate the growing number of items in the cause list..In order to keep pace, the Hon’ble Judges are now resorting to one line orders often sans reasons to dismiss or allow appeals. These judgments may serve the temporary purpose of reducing the pendency, but are damaging the faith that the litigants and the people of this country repose in the Supreme Court..The growing dissatisfaction in the Bar and the litigants is a matter of alarm. The need for well reasoned judgments cannot be undermined. The inevitability of reasoned judgments has been very lucidly highlighted by the Hon’ble Supreme Court in Shama Jafri vs. Irfan (2013) 14 SCC 348:-.“…it is graphically clear that the deliberation by the High Court…has to be reflective of due cogitation and requisite rumination. It must reflect application of mind, consideration of facts in proper perspective and appropriate ratiocination…The reasons ascribed may not be lengthy but they should be cogent, germane and reflective…Giving reasons for an order is the sacrosanct requirement of law which is the aim of every civilised society. And intellect respects it.”.Apart from the above, reasoned orders have long term effect in reducing pendency, as it cuts down judicial uncertainties, which would serve as guides to the Bar and the lower judiciary in subsequent disputes. The well written, reasoned judgments become landmarks, and cutting down future litigations effectively. Thus, the very root cause of the problem of increasing arrears can be addressed by reasoned orders..Further, passing detailed orders elucidating reasons therefore also lends credence to the impartiality of the judicial system and keeps the allegations of bias and malafides at naught. Justice, they say, should not only be done, but should also appear to have been done. What could be a more manifest expression of “justice being done” than a well reasoned order passed after patiently hearing both the parties?.Another aspect that needs consideration here is the conflicting judgments that are delivered these days. Prior judgments on the issue are either not considered or distinguished on flimsy grounds, leading to judicial chaos and uncertainty. But in this, the Bar also has a role to play. Sir S. Varadachariar, Judge of Federal Court of India, in a speech published as “The Bench and the Bar, as I know them” cited (1954) 67 LW (JS) 127, highlighted the great responsibility of the members to the Bar to assist the Bench by presenting arguments in a brief and cogent manner and also by being prepared with the matter so that as little possible time is wasted of the Bench in delivering justice.Inefficient and incomplete assistance by the Bar, coupled with non-application of mind by the adjudicators on the precedents in the issues, is slowly gnawing at the pillars of the judicial system. But sometimes, even while giving reasoned orders the court is not applying their mind to serious arguments taken in the written submissions..Inefficient and incomplete assistance by the Bar, coupled with non-application of mind by the adjudicators on the precedents in the issues, is slowly gnawing at the pillars of the judicial system..It may not be out of place to state that in the justice delivery system, the executive governments are appointing lawyers on political considerations rather than their competence. They are not able to assist the court, causing extra burden on the court. The judges, to protect public interest involved in government matters, sometimes ignore even good arguments or important contentions, which lead to conflicting judgments..Another reason which is affecting the relations between the Bar and the Bench is one-sided change of rules and procedures. Earlier, the Bar used to be represented in the rule-making Committee. I myself, in capacity as the President of the Advocate-on-Record association, have been a member of the rule-making Committee. However, surprisingly, in the second term, neither the President of the SCBA nor the SCAoRA are members. Circulars after circulars giving practice directions without consulting the Bar are issued by the Registry in the name of Hon’ble Chief Justice of India. Matters are listed without proper notice and similarly delisted despite of Court orders..This causes unnecessary harassment to litigants and lawyers who come to the court from faraway cities and towns. They find difficulties in commuting and when their matters are decided in their absence, it causes great dissatisfaction affecting the psyche of the Bar and the litigants..The system, if it continues to work the way, it does in the present, is a prescription formula for anarchism. It therefore needs immediate attention and correction in a mammoth collective effort by both – the Bench and the Bar..The author is a Senior Advocate at the Supreme Court of India.
