?
The Vice President of India Shri M. Hamid Ansari has said that our progress on
achieving the Constitutional promise of securing to citizens justice, social,
economic and political, especially to the poor and disadvantaged, leaves much
to be desired. In many instances, it is the State that is the biggest and enduring
litigator, forcing citizens and businesses to sustain substantive and notional
losses as cases drag on in the labyrinthine justice delivery system. Addressing
after inaugurating the ?New campus of GujratNationalLawUniversity?
at Gandhinagar, Gujrat today, he has said that the certainty of long
gestation for resolution coupled with heavy costs to sustain the legal process
has given large corporate and business entities added incentives to threaten or
institute legal proceedings on civil matters. It is usually the individual
citizen and the poor and marginalised among them, who bear the brunt of
inadequate or non-existent Alternate Dispute Resolution mechanisms and extended
judicial processes.
?
Shri Ansari has said that barring fundamental rights whose
violation can be challenged through a writ petition, legal rights, especially
civil legal rights bear the brunt of judicial delays. While the economically
better off have more staying power and are able to hire and deploy superior
legal resources and knowledge to defend their economic interests and property,
the poor are pushed into further penury to defend their meagre possessions and
holdings against legal challenges. In the Indian context, defending legal and
statutory rights that are non-fundamental, is time consuming and expensive and
works against the poor.
?
Following is the text of Vice President?s address :?
?
?I am happy to
be here today in your midst to inaugurate your new campus. In a short span of
six years, the GujaratNationalLawUniversity is on the path
to achieving its vision of becoming a world class law university through steady
progress in education, research, training and extension activities.
?
I commend your
initiative to establish centres of excellence in specialised areas such as private
and public international law, foreign policy and security studies, environmental
law and climate change. Equally impressive is your effort to assist
professionals, the judiciary and the government in reducing the backlog of
cases.
?
It is relevant
to recall here an observation made in 1927 by Justice Felix Frankfurter of the
United States Supreme Court: ?In the last analysis, the law is what the lawyers
are. And the law and the lawyers are what the law schools make them.?
?
This statement remains
valid to this day. It emphasizes the centrality of legal education for the
effective functioning of a democracy and for upholding the Rule of Law.
?
A similar view
was espoused by the Working Group on Legal Education of the National Knowledge
Commission. It opined that ?the vision of legal education is to ensure justice
oriented legal education to ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????contribute
to the realisation of values enshrined in the Constitution of India?, adding
that ?legal education must also inculcate the need to observe the highest
standards of professional ethics and a spirit of public service?.
?
The Working
Group felt the role of legal professionals has expanded beyond that of
advocates in courts and includes legislators, judges, policy makers, public
officials, civil society activists as well as legal counsel in the private
sector.
?
Thus the role
and public function of law schools has vastly changed since independence.
Besides meeting the needs of the Bar, law schools are expected to cater to the
growing requirement of non-practising law graduates in trade and commerce, and
non-profit oriented work. This is reflected in the preferences of the
graduating students.
?
While considering
the changing role of lawyers, it is useful to refer to the ?Basic Principles on
the Role of Lawyers? adopted by the Eighth UN Congress on the Prevention of
Crime and Treatment of Offenders at Havana in September 1990. Five of the
twenty nine principles bear repetition here:
?
1.???????? All persons are entitled to call upon
the assistance of a lawyer of their choice to protect and establish their
rights and to defend them.
?
2.???????? Governments shall ensure effective and
equal access to lawyers for all persons within their territory, without
distinction of any kind.
?
3.???????? Governments shall ensure sufficient
funding and other resources for legal services to the poor and other
disadvantaged persons. Professional associations of lawyers shall cooperate in
this regard.
?
4.???????? Governments and professional
associations of lawyers shall promote programmes to inform the public about
their rights and duties under the law and the important role of lawyers in
protecting their fundamental freedoms. Special attention should be given to
assisting the poor and other disadvantaged persons so as to enable them to
assert their rights.
?
5. ??????? Lawyers, in protecting the rights of
their clients and in promoting the cause of justice, shall seek to uphold human
rights and fundamental freedoms recognized by national and international law
and shall at all times act freely and diligently in accordance with the law and
recognized standards and ethics of the legal profession.
?
A look at the
legal and judicial landscape around us does bring to mind a few questions:
?
?????? Is our legal and judicial system able to deliver justice to every
citizen, especially the poor and the disadvantaged? Is substantive access to
justice diminishing as the cost of quality legal service escalates beyond the
reach of the common citizen? Is legal knowledge increasingly being deployed for
the rich?
?
?????? Do those pursuing legal education have public service orientation
and social engagement? Are they being inculcated with such an orientation at
our law schools?
?
?????? Can we speak of justice delivery when the process takes two or three
decades to reach finality?
?
Let us take the
last issue first.
?
Today there is a
pendency of over 56,000 cases in the Supreme Court, of which around 36,000 are
arrears constituting cases which are more than one year old. The pendency in
the High Courts and Subordinate Courts as of 31 December 2010 was around 3.2
crore cases, of which around 85 lakh cases are over five years old.
?
Reasons for
delays in justice delivery are well known. Excessive adjournments ?are a primary cause; other reasons are shortage
of resources and capacity, long-winded arguments by counsels, inadequate judge
strength, delay in filling-up vacancies, and disproportionate concentration of
work among some members of the bar, Furthermore, Alternate Dispute Resolution
has not succeeded to the extent it ought to have. The Supreme Court recently
bemoaned the frequent adjournments for the flimsiest of reasons in the case Shiv Cotex vs Tirgun Auto. The Hon?ble
Judges said: ?It is sad, but true, that the litigants seek ? and the courts
grant ? adjournments at the drop of the hat. Adjournments have grown like
cancer corroding the entire body of the justice delivery system.?
?
Yet there are
reasons for some optimism. The government last year approved the setting up of
the ?National Mission for Justice Delivery and Legal Reforms? to implement the
two major goals of increasing access by reducing delays and arrears in the
system and enhancing accountability at all levels through structural changes
and setting performance standards. A mission mode approach is proposed to
improve the infrastructure of Subordinate Courts under the National Mission.
?
The government
has also made available enhanced central funding for infrastructure in
subordinate courts and has also accepted the recommendations of the Thirteenth
Finance Commission to provide a grant of Rs. 5000 crores to the states for
improving the justice delivery system over the five year period 2010-15. It has
also begun implementing ?e-Courts Project? for district and subordinate courts
and upgrading IT infrastructure in Superior Courts at a cost of Rs. 935 crores
and with a target to computerise 12000 courts by March this year.? ?
?
Our progress on
achieving the Constitutional promise of securing to citizens justice, social,
economic and political, especially to the poor and disadvantaged, leaves much
to be desired. In many instances, it is the State that is the biggest and
enduring litigator, forcing citizens and businesses to sustain substantive and
notional losses as cases drag on in the labyrinthine justice delivery system.
The certainty of long gestation for resolution coupled with heavy costs to
sustain the legal process has given large corporate and business entities added
incentives to threaten or institute legal proceedings on civil matters. It is
usually the individual citizen and the poor and marginalised among them, who
bear the brunt of inadequate or non-existent Alternate Dispute Resolution
mechanisms and extended judicial processes.
?
Litigators, some
of whom are compulsive in the Indian context, have not fully internalised the
externalities of their actions, especially because of long delays in delivery
of justice and because they escape the full liability of the harm they cause to
those at the receiving end of their litigation, as also to the public good. The
deterrent impact of an effective law of torts is rarely felt and has been to
the detriment of the citizen.
?
Barring
fundamental rights whose violation can be challenged through a writ petition,
legal rights, especially civil legal rights bear the brunt of judicial delays.
While the economically better off have more staying power and are able to hire
and deploy superior legal resources and knowledge to defend their economic
interests and property, the poor are pushed into further penury to defend their
meagre possessions and holdings against legal challenges. In the Indian
context, defending legal and statutory rights that are non-fundamental, is time
consuming and expensive and works against the poor.
?
There is one
other aspect of the matter. It has to do with the ethics of the profession. The
Law Commission of India in its Report No. 230 of August 2009 has presciently
noted that ?the ethics of lawyers has also become questionable?. The Report
states that though there is a Bar Council that ?has to look after ethics of
lawyers?, it has ?rarely taken action against tainted lawyers?.
?
The need for
introspection is imperative and should lead to an ethical renewal in actual
practice.
?
Besides teaching
and research, the academia is an arena for inculcating a culture of
professional responsibility, ethical behaviour and public and community service
among legal professionals.? It is the
place to make young entrants to the profession realise the importance of social
responsibility in the practice of law and emphasise the social functions of
legal institutions. The behaviour of young students here remains the guiding
light for their later careers as lawyers and judges. It is here that one should
be made to realise that the legal profession should be a helping and caring
one, and not a selfish or exploitative one.????
?
?
I am confident
that the GujaratNationalLawUniversity would lead in
imbibing a culture of community and public service among its graduates and
adopt a leadership role in emphasising professional excellence and ethical
conduct.
?
I thank the
Chief Minister and the Director of the University for inviting me to today?s
function and wish you all every success in your future endeavours.?
?
*****
?
Sanjay
Kumar/VPI-2/7.1.12
Source: http://pib.nic.in/newsite/erelease.aspx?relid=79411
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