90% of litigation against govt can be avoided if it gave relief to litigant at the stage of notice: Justice (retd.) Jyotirmay Bhattacharya-Courtesy BAR bench

Justice Jyotirmay Bhattacharya, Advocate Sanjoy Ghose 

Justice Jyotirmay Bhattacharya, Advocate Sanjoy Ghose

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90% of litigation against govt can be avoided if it gave relief to litigant at the stage of notice: Justice (retd.) Jyotirmay Bhattacharya

The former Chief Justice of the Calcutta High Court was speaking at a discussion hosted by the Bengal Intellectuals Group on the theme "The role of the Judiciary and the SC/ST Atrocities Act, 1989."

Lydia Suzanne Thomas

Sep 20, 2020, 3:57 PM IST

Former Chief Justice of the Calcutta High Court, Jyotirmay Bhattacharya on Saturday observed that 90% of the litigation against the government could be avoided if the government functionary gave relief to the litigant at the stage of notice instead of dragging the litigation on.

Former Chief Justice of Calcutta High Court Jyotirmay Bhattacharya

Former Chief Justice of Calcutta High Court Jyotirmay Bhattacharya

The former Judge made the comment while expressing his view on the extent to which judicial delays could shape the popular perception of justice and the judiciary at Webinar hosted by the Bengal Intellectual Group on Saturday.

The webinar also saw Advocate Sanjoy Ghose of the Delhi High Court and Senior Advocate Jaydeep Kar of the Calcutta High Court speak on the theme Role of the Judiciary and the SC/ST Atrocities Act, 1989.

Advocate Sanjoy Ghose began by speaking of the need for a robust judicial system in a democracy. The institution was all the more important since it was the last bastion for the protection of people’s rights and freedoms, he highlighted.

Advocate Sanjoy Ghose at the webinar

Advocate Sanjoy Ghose at the webinar

In a democracy, it was paramount that “justice was not only done but also seen to be done”, he underscored, quoting a maxim.

How judges are appointed and the manner in which cases are handled to a large extent determined how justice was seen to be done in a democratic set-up, he added.

Quoting the sloka “dharmo rakshati rakshitak”, he emphasized that the institution of the judiciary serves as a bulwark against majoritarianism, especially when the government and the legislature tended to yield to populism.

Coming to the central subject of his address, he stated that the collegium system was envisaged as a mechanism to reduce the public perception of the executive and judiciary being interlinked.

However, Advocate Ghose remarked that the collegium ultimately represented only a formal handing over of the authority to the judiciary. The “give and take” between the executive and the judiciary has remained, he opined.

To ensure that judges do not pronounce judgments in the hope of future reward or favourable appointment, it was necessary to devise a mechanism of some kind, Ghose said. For this, a system where Judges are remunerated post-retirement could be put in place, he opined. This could make sure that justice was delivered by judges without fear or favour.

Along with the decision of who was chosen to the judiciary, the manner in which judicial time is allotted is also crucial in shaping the public perception of Courts, Advocate Ghose said.

In this regard, he noted that the Supreme Court’s decision to hear a matter relating to the use of Artificial Reproductive Techniques on animals and the legal status of animals, when there were other important matters pending, sent out a wrong message about how judicial time was allotted.

On this aspect, he referred to the pending cases relating to the abrogation of Article 370 of the Constitution, the habeas corpus pleas of Jammu and Kashmir politicians who were "unofficially" detained, the legality in the issue of electoral bonds, demonetisation, and migrants’ rights issues before the Supreme Court.

He ended his address with a reference to the iconic US Supreme Court Judge Ruth Bader Ginsburg who inspired many thousands of people. The Judge passed away on Saturday.

Senior Advocate Kar dedicated his segment to a discussion on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

He began by quoting Gandhi’s statement that he desired to be reborn as a Harijan to "share their sorrows, sufferings, and the affronts levelled at them", so that he could endeavour to free himself and them from that miserable condition.

Noting that the 1989 legislation was enacted to protect the oppressed communities from the aggression of the dominant communities, he traced the evolution of the enactment from its root in Constitutional provisions for equality, to its present form.

The legislation was preceded by two earlier Acts, the Untouchability (Offences) Act, 1955 and the Protection of Civil Rights Act, 1955. Because these legislations were found inadequate, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 came to be.

He delineated the features of the legislation as follows:

An expanded definition of the term ‘atrocity’ against a person belonging to the SC/ST community;

The distinctive procedural framework for investigation and trial of offences;

Establishment of Special Courts to try offences under the legislation;

The unavailability of the remedy of a pre-arrest bail and release under the Probation of Offenders Act (the legislation permits the release of offenders for good conduct).

Citing Supreme Court judgments, he stated that the Court has consistently emphasized on the need for the better implementation of the legislation, and better training of personnel at all levels to behave with sensitivity.

He also exhorted persons of influence in the community to initiate conversations among people within communities about the legislation as well as their rights.

The final address was by former Chief Justice of the Calcutta High Court Jyotirmoy Bhattacharya, who expounded on the judiciary’s position vis-à-vis the other two estates in the Indian federal polity.

After a detailed enunciation on the judicial system, right from the subordinate courts to the Apex Court through a system of appeals, Justice (retd.) Bhattacharya tried to analyse possible safeguards against the erosion of public confidence in the judiciary. In this regard, he suggested:

One, ensuring the independence of the judiciary

Two, avoiding political interference with the judiciary

Three, stopping post-retirement appointments

Four, tacking judicial delay

Speaking about the need for judicial accountability, Justice (retd.) Bhattacharya emphasized that fair criticism of judgments should always be welcome. This was especially required to avoid errors being perpetuated in future judgments.

Echoing Advocate Ghose’s sentiments, the Chief Justice also emphasized that stopping post-retirement appointments could improve the public perception about the judiciary.

The former Chief Justice did not mince his words when speaking of delays in the legal system. He pointed out that judges were being assigned with more than their designated load which also possibly resulted in delay.

He also claimed that 90% of litigation against the government could be avoided if the government functionary gave relief to the litigant at the stage of notice instead of dragging the litigation on.

The judge also opined that increasing the number of courts could help improve the justice delivery system as opposed to setting up alternative dispute resolution fora.

The discussion came to a close after the convenor of the Webinar spoke a few words.