SH Kapadia

New Delhi, Nov. 26: Chief Justice S.H. Kapadia today said the judiciary “needs to work in the area demarcated by the Constitution” in possibly the first acknowledgement of the compulsions the executive faces.

“Judicial independence is one of the essential elements of the rule of law. Every civilised society has seen the need for an impartial and independent judiciary. The principle of judicial independence has acquired renewed significance since the Constitution has conferred on the judiciary the power of judicial review,” Kapadia said.

“However, keeping in mind the doctrine of separation of powers, the judiciary has to exercise considerable restraint to ensure that surcharged democracy does not lead to a breakdown of the working of Parliament and the government. The judiciary needs to work in the area demarcated by the Constitution.”

The comments, at a Law Day event in the Supreme Court where law minister Salman Khurshid was present, comes in the backdrop of allegations of judicial activism or overreach.

Kapadia said “awareness about rights has grown, while correspondingly, redress from the executive has been reduced. The executive has its own compulsions — huge population, lack of resources, high inflation…. As a consequence litigation has multiplied.”

Every institution, the CJI noted, faced a crisis of confidence. “The deficiency of every institution in tackling the growing and complicated social problems has become a common feature. It is a challenge for every institution. Every democratic institution needs to meet this challenge.”

The country’s top judge said the judiciary, despite its high disposal rate, needed to address the challenge of pending cases. “… the challenge is and should be for zero pendency in which direction a lot needs to be done,” he said.

Kapadia also spoke of “rejuvenating” the system to restore its credibility in the eyes of the public. “When viability of the system gets into disrepute and ultimately the system becomes less and less useful to the community, the challenge lies in rejuvenating the system by restoring its credibility and people’s faith in it,” he said.

He said the “foremost challenge” before the judiciary was the “viability” of the system. “Citizens approach the court only when there is confidence in the system and faith in the wisdom of the judges. The institution stands on public trust,” he said.

“I am an optimist. I do not share the impression that the judicial system has collapsed or is fast collapsing,” Kapadia said. “I strongly believe and maintain that with all the drawbacks and limitations with shortage of resources and capacity, we still have a time-tested system. This is no justification to discard the system by giving it a bad name.”

He stressed the point that 74 per cent of the pending cases were less than five years old. The focus, he said, should be fast disposal of the 26 per cent that are over five years old.

Kapadia put judicial integrity above independence. “Judicial accountability needs to be balanced with judicial independence. We, the judges, do not mind studied fair criticism,” he said. “However, an advice to the bar — please do not dismantle an institution without showing how to build a better one. Please remember, ‘when an institution no longer matters, we no longer matter’.”

Khurshid suggested paperless courts as a way out of the stalemate over more Supreme Court benches in other parts of the country.