Judges trained to write judgments, not trained to run sports organisations, Arun Jaitley on National Law Day

The inaugural day of National Law Day celebrations at Vigyan Bhavan, New Delhi witnessed interesting take by various dignitaries on judicial activism and separation of powers..The event saw the attendance of President of India, Ram Nath Kovind, Chief Justice of India, Dipak Misra and Union Finance Minister Arun Jaitley, and Minister of State of Law, PP Chaudhary among others..While CJI Dipak Misra said that the judiciary will interfere if there is violation of fundamental rights of citizens, Arun Jaitley stated that Judiciary stepping into fill the gap of the executive or legislature, will render the concept of judicial review moot..Below are the excerpts of the speeches..CJI Dipak Misra.It is the Constitution, which brings every organ of the State together, sustains them and serves as a fulcrum for their existence and sustenance.The Constitutional values have their own significance. It is from the Constitution alone we discern the nature of the governance within which the people of this country are to live.The fulcrum of governance is that citizens shall be guaranteed fundamental rights and the governing entities are not expected to encroach upon it. The moment they encroach upon it or there is an apprehension that there shall be an encroachment, the judiciary is obliged to stand by them [citizens]. Then there is the perception that there is judicial activism. I must clarify protection of fundamental rights of each and every citizen is the sacrosanct duty of the judiciary, which has been conferred upon by the Constitution.Fundamental rights have been expanded from the date the Constitution came into existence. Expansion of fundamental rights is done by the process of interpretation.When Vishaka came nobody questioned, because that helped protect women of this country. That sensitised people that they must respect women. When the question of children working in hazardous places came up, the Supreme Court came forward and put its foot down.These are all protection of fundamental rights. Judiciary does not have the desire to enter into the policy making domain. We don’t make policies, but we interpret them and that is our job..Ram Nath Kovind.Our Constitution is a source of law and a custodian of ethic and value system.While we take pride in our courts and their independence, it is a paradox that the poor often shy from legal matter worried about the duration and the costs and the well-off sometimes use the judicial process and its intricacies to delay the resolution of issues they simply do not want to be resolved. This paradox needs to be addressed. Perhaps the time has come to examine the issue of adjournments and whether they are to be limited just to absolute emergencies or continue to be allowed to be used for tactical delays by one party or the other.This is the age of communication and technology. We must use these tools to speed up the justice delivery process. Expectations of the people are justifiably high. Alternate Dispute Resolution mechanisms have to be looked at very seriously.Access to justice for common people. India has acquired a reputation for an expensive legal system. In part this is because of delays, but there is also the questions of affordability of fees. The idea that a poor person cannot reach the doors of justice for a fair hearing only because of financial or similar constraints violates our Constitutional values and republican ethics. It is a burden on our collective conscience. I leave it to our legal fraternity, advocates and Bar Associations to find an answer.Access also relates to simplifying laws and repealing outdated laws, an area where our Law Commission has done our country enormous service. The Government has identified around 1800 laws that require to be removed from the statute books. In the past three years, Parliament has repealed about 1200 obsolete laws.We are entering the fourth industrial revolution. The relationship between humans and machines will test previous precedents. Our legal system and judiciary must continue to be responsive. In the days ahead, this will call for greater specialisation and mid-career updating of skills.Of the 79000 judges in our subordinate courts, High Court and Supreme Court only about 4700 are women. In addition, there is an unacceptably low representation of SCs, STs and OBCs. Without compromising on quality, we need to take long term measures to remedy the situation..Arun Jaitley.Independence of judiciary and separation of powers are definitely part of Basic Structure. But so is an elected government. Ultimately it represents the sovereign. Therefore, it is extremely important that emphasis on one aspect of the Basic Structure is never allowed to eclipse the other Basic Structures of the Constitution.While exercising the power of judicial review, one has to bear in mind that separation of powers is maintained in its entirety. The executive is not trained to exercise legislative or judicial powers. Parliament is not an institution to exercise judicial powers. Judiciary similarly is not trained, nor does it have the administrative majority of exercising legislative powers.In fact, if judiciary gets into the process of exercising legislative or executive powers, the very institution of judicial review itself will suffer. If executive arbitrarily exercises executive power, it is subject to the cushion of judicial review. If the same power is usurped by the judiciary and exercised [by it], two inherent contradictions would emerge. First would be the competence to exercise the power, and secondly how would judicial review of the exercise of that power itself be exercised. Therefore, wherever Lakshman Rekha on separation of powers has been exceeded, and executive power has been exercised by courts either themselves or by committees appointed by courts, the question is what is the extent of judicial review be on that power itself.I have often heard of the argument that judicial activism is born out of the phenomena that when other institutions are not doing their jobs, somebody has to fill the gap. It is a flawed argument. It is flawed because if any organ of the State is not doing its duty it can be directed to do its duty. Usurpation of power by any other organ is never the correct Constitutional approach. What is the same argument is used against the judiciary. Arrears are pending, judges are not doing their job. So should somebody step in and exercise the powers vested in courts. No. You will probably need more courts, faster procedure, alternate mechanism in order to exercise that power. So it is very important that the dividing line of separation of powers is maintained.Now we have courts saying “where security forces are to be deployed is something we will decide”. So if every High Court in the country starts deciding the position of security forces, as to where they should be stationed, it is an invitation to anarchy. Or let us say, the Court says it will decide what the height of a dam should be. It is a matter which is very technical and purely within the executive domain. It is extremely important that the temptation of “I know better than the other institutions” should always be restricted.The new trend by courts is to appoint nominees to exercise executive powers. The nominees may be equally unsuitable to exercise executive powers because they have not been trained for that. These nominees, who are usually retired judges, have been trained to write judgments. They have not been trained for administrative assignments, or to run sports organisations..Here are some images tweeted by the President of India, Shri. PP Chaudhary, Minister of State for Law and Justice, Member of Parliament Jay Panda.