Justice A.K. Sikri, Judge Singapore International Commercial Court, a former judge of Supreme Court of India and incumbent chairperson of News Broadcasting Standards Authority; Justice Michael D. Wilson, sitting Judge of the US Supreme Court; Justice Matthew F. Cooper, Justice of New York County Supreme Court, USA; Professor C. Raj Kumar, founding Vice Chancellor of Jindal Global Law School speak to Tarun Nangia on the Legally Speaking program aired on NewsX about Democracy, Courts and Rule of Law.
Wilson: No and this is the part of Justice Cooper and I am here because its so important for us to see the way Indian handles these kinds of problems but this is a very – very fundamental issue created upon.
T.N: A Bunch of interesting point by justice Wilson I will go to Professor Raj Kumar
Wilson: I want to quickly respond to what justice you see its very important to also recognise when we look at our own courts while justice Wilson is right to say that the demonstration and the recognition of right to clean and the healthy environment in the US context not so clear and the Indian context our courts are consistently recognise that but we should make an important distinction between in a non-creation and a non-recognition not made norm in enforcement or implementation it continues to be the case that lot of lets say that directions that have been issued by our courts a recognitions relating to what is right and what isn’t have not been implemented effectively so we have a situation in our country and that’s a far more serious situation in which on a number of issues choose a particular in relation to economy and social rights including on issues relating to environment the court orders a direction have not followed and that there is an exponential right s in the non-creation but when comes to actual norm enforcement and implementation we are slowly becoming a very week state and unfortunately our courts have don’t have enough mechanism because large extent its important Tarun to recognise that democracies to a large extent you know work best when all institution are by and large performing its role and responsibility without the force of Law in the sense that as famous jurist said that you know Rule of Law works well in societies which already respect the Law you know in some ways in the environment its very you know an important area because I all of us grew up in law schools you know reading those famous judgements on range of issues where we expanded jurisprudence including Article 14 Article 19 and Article 21 which we are very proud of it but the fact remains that we are increasingly entering into a stage where courts can keep making this normative judgements but the institutional capacity and executive responsibility to enforce force and implement these judgements are weaker and I there say we don’t have enough mechanism to ensure that the executive held responsible.
T.N: Very-very important point by professor Raj Kumar I have personally experienced this because in my career say about now for 15 years or so I have seen courts have in a sense have orders upon orders where they have dealt in the issues like clearing of garbage from certain society to supply water to non-VIP areas where you know because water is suppled to certain enclaves and cities where certain section of society lives where government officers live or in a sense the better of neighbourhood and cities so all kinds of courts have been getting involved in the of course not Suo motto people have been aggrieved and they have approached to the court but of course it is for us to see and many times I have personally witness that these orders are not implemented due to share executive of well there can be two kinds of inferences drawn upon un willingness to with what ever they have or simply saying that there is not enough where withal resources are not there so going to justice Cooper and you have seen all other panellist speak and what would be your last word in this issue ?
Cooper: Two things one would be on of the thing is have you system your judicial system may be even more overwhelmed than our system we have a much smaller population and I am person we know any other sign of Indian Us is just a great magnitude we also have a state a federals system we basically have more courts and we have more judges I think for Calcutta as result they don’t have I was so surprise that the Supreme Court has and immense docket issue
Sikri: Just for your information in India I think it is twenty-one or twenty-two judges per million of population whereas as it is 125 in USA
Cooper: I know under the constitution of my state you get a judge like its one for fifty thousand peoples
T.N: so, there is a lot of difference between our two democracies
Cooper: So that is when you have some challenges and some healthy caps that we don’t have
T.N: so infrastructure issue are in there and you see the judges are more well one question that I have just came to mind cruelly out of my curiosity in India there is a posits of data which our judiciary can rely upon to deliver judgements and many of times it is given out of whatever is presented before them is that problem in USA or are there enough reports available on various issues which are well researched you know we
Cooper: You have an extensive case upon a case and are easily found just keep one time you had to go
T.N: that’s what I want to get to professor Kumar the role of university is very important to generate such data
Kumar: So one of the big challenges in India is not only for courts make judgement even the policy making I mean evidence based policy making or evidence based judicial making is un fortunately not prevailing because most of it is open rated. And so we have an open rated system whereby if you think like for example if you are todays context there is of course a legitimate fear around countries around the world about and this is giving the example coronavirus as the major example that we are facing today now if you look at the and if you base this current prevailing you know phenomenon for policy making you mint end up getting very secured result because we know in India approximately six hundred and fifty people died daily due to road accidents six hundred fifty people die everyday you calculate that plus lakh per annum
Cooper: You I have actually come pretty close trying to question tha especially when we looked when you cross, we looked on the wrong direction so I am gone make sure I am not gone those
Kumar: but if you look at some of these diseases say current one the number of deaths are far lesser now what I am trying to say that we need to have a robust evidence based policy making but also judiciary to be precedence with data unfortunately legal research lack of scholarship in relation to academic writings are relatively lessor because and hence judges also are most of the time presented with information from both sides of the lawyer whatever they could
Sikri: good thing is known some of the projects I would comment many law schools their law school including National Law School their students are taking those projects coming out with imperial research basis data and in some of the cases they have intervene and provided data to the courts
Kumar: they have cited for example the National Law School in Delhi on the 377 Jindal Global Law school’s own faculty member on this so I mean that in a country where there are sixteen hundred law schools and so much of need of you know this kind of research coming out unfortunately its wilful
T.N: so I would also before I go to justice Cooper for a question I would like to also make a point that the industries been wanting involvement in a sense to invest in these schools to fund such projects I don’t say industry in India really coming forward to fund such studies and universities which I think may be common in USA I am not aware?
Kumar: you are absolutely right I would call it not this industry generally the Corporate business sector including Law Firms Corporation Business enterprises they have seen Law Schools at best recruiting grounds for there that is they don’t see this as you know as an institutions ecosystem for research
Sikri: I see know little silver lining few Law Firms I have seen they are associating.
T.N: so I am going to justice Cooper we have little time left we’ll go for a final round of questions should courts be in the business of a making policy or do you think that courts don’t want to make policy it is trust upon them by executive in action and they are you know forced to play role and there have been many example in India so there is big Corporate lobbies which in a sense had have disproportionate influence on governments across the world case in point is the mid-day deal program or the school food program where many a times many corporate lobbies talk about serving children biscuits instead of nutritionist meals and you have courts getting in you know in a sense they know this policy is not right you cant serve children biscuits you better serve meals but this very small example it can be in industries as diverse as mining to what is apply how would you look at this whole issue of court’s making policy or interfering in policy making by governments?
Cooper: You look at this question is that certainly in the US courts have been forefront of social change and petting backing on your question about Law schools some other material that courts has to rely upon to most involved because down by students because in law schools that were some greatest ideas come of young people who are confronting ideas and so some of the social change and a decisions that are distinctively moving progressive its called the progressive rely so much on more review because I think justice Wilson but talk about social change one case comes in immediately to mine I think Brown versus Board pf Education and that was the situation where we as one of the invest agio of slavery which was the worst stain on history we had an indorsing stain and that was a legal segregation as to legally ordered this we have separated court but equal and they couldn’t be equal because they have its just wrong what we as a society needed it was unfair it was discriminated that wouldn’t have change through legislature it wouldn’t have happen never would have happen this out tried to say for happen anywhere but it was because of a constitutional a constitutional interpretation that was unanimous by Supreme Court and brown Board of Education that we have to see change in this country so in US that is I think the prime example of have courts of our society change as a result our judicial court intervention UK court policy making I would prefer upon the interpretation of principles of our constitution
T.N: so, you called it a living constitution?
Cooper: that is the major debate which is going on in United States Secularism versus Originalism there are those who say now you can’t just be stuck by world so you can’t just fix it but a bunch of if very smart and no more people in back in the eighteen centuries think you can look at time have changed you have to look it in terms of an involving constitution constitution that changed.
T.N: so, courts have very difficult task of trading that path
Cooper: of course, and there is a huge debate between judges as to how and matters applied and ensure you have as well
Sikri: This is a debate going on even today for last number of years in United States and the judges are divided that to go by the text of constitution the constitution and originalism means the constitution in 1977 that we should stuck to that period and what was the framework of the constitution thought about a particular provision or it should be a living constitution and we have to give the interpretation in today’s time.
T.N: Justice Cooper do you face that dilemma when you gave past sitting of judgements in so many cases of relevance importance do you have that dilemma ion your mind?
Cooper: I think we always have that dilemma I think that it is because we are not there to make the Law, we are not there to write the Law we are there to interpret and enforce when questions come up interpreting a living constitution might be alike interpreting as constitution
T.N: How would you see in Indian Context?
Sikri: You see I was telling you three stages and I had not come to third stage I think this cause is relevant to third stage of that PIL I when I said first was for the underprivileged and all those second was when of natural environment and protection of that in the third phase if you see in last fifteen years or may be twenty years that is on good governance that is where the courts thought of course going by that this what is expected of the executive and governance of the country and when I said to you about the directive principle of the state policy etc which is I mean all these things welfare measures are expected of the executive and like wise day to day governance also where the courts stated enforcing that principle of good governance and now in sense you take the example of 2G take the example of coal cases etc where these I mean coal mine leases were given or 2G spectrum which was assigned in etc but the court found in those cases that look the manner in which it was distributed it is not abounded that it is not the will of executive that person sitting there should if I like your face I should give it to you I feel like X and don’t like Raj Kumar I should not give it to him so therefore it also has to governed principles which are there in administrative law which are there well recognised principle how administration should be right know here sometimes what happen it is I would say again there are two I mean streams of cases one is where fundamental rights or human rights of the people where to be enforced there sometime policy also may take Vishaka Case where the court said that it’s a sexual harassment at work place women’s sexual harassment at work place and there court found that there is no law although India was signatory to CDAC but no domestic law is framed on it so how to implement it so in cases of human rights the court has gone to that extent and had even in that case the court said that this would be the law till the time parliament enacts the law so court even assume the power of the legislature and enacted the law.
T.N: So, you mean court is merely filling up the shoes where the executive has not?
Sikri: It may be the second thing which is the bridge between the gap between the Law and the society so it may be the society needs it Law sis not there and we are telling the legislature but what I am telling you is what I wanted and say second case transgender where they are and I was party to that judgement and we said that there in no law of them and this should be Law till the time in both the cases now laws made by parliament so therefore that is one but when it has come to what I want to tell you was that when it has come to the enforcement of fundamental rights or human rights and the courts have been overstepped that has been welcome that Vishaka judgement is one judgement which was I mean which got aquileges through out the world and even today people say about that yes for the rights of women and to give them their rights it’s a mild stone no doubt about it but when it comes to day to day administrative functions of the government and that power is assumed by the courts that is not like by the executive particularly
T.N: you mean water power garbage all that
Sikri: yes, that is not like by the executive particularly of course
T.N: because we are out of time, I need a 30 sec quote from you even though its not liked by the executive but you see the people suffering crying and for the help to the courts should the court turns a blind eye what I want to ask?
Sikri: No I would say court should not turn the blind eye but remedy is and which I will quote and I like that Raj Kumar had written that article in ones in newspaper about two three ago that take that cause don it but instead of doing it yourself involve the executive and make them do that task so that its become fair task you are not encroaching upon the power also but then you are enforcing them to do that.
Kumar: quickly I want to respond to the one matter on the matter relating to the courts deciding on economic matters like justice Sikri has a very good judgement on that I have increasingly seen that the even the highest court making mistakes unfortunately the courts don’t have enough method to access the economic matters carefully they absolutely don’t do law and economic analysis they simply use there traditional understanding of Law and unfortunately serious substantial matters that involve economic apparatus of imperative state be 2G or coal or many others He has a very good judgement on that but those cause ire reparable damage to the economic status of the country and ones the courts decide something it becomes very difficult for executive to do anything else .
T.N: Justice Sikri had a very long comment on it in our last show
Kumar: So, if you look at the European experience today whenever it comes to economic matters courts are constantly looking at law on economic analysis and we to bring that
T.N: That’s the data also comes in because empirical data is needed which we don’t have justice Wilson the last word from you on the show should judiciary be in the business of policy making or his policy making should be trust upon them by executive in action?
Wilson: Policy making is the duty of the court as directed by the constitution and that policy making is something expected by the people to decide what does justice means under the constitution what is right to privacy means what is right to clean and healthy environment mean those are policy decision you required by the court all the time and to me it is the red hearing courts obviously have to make policy decisions that are more interesting question would be How do they do because who else stands up for who else stands up for those who are the victims of the law being applied improbably so I would say in the over all context that the greater which policy is the decisions are made I extremely healthy lets put it that way it is anticipated by the constitution.
T.N: okay frank observation by Justice Wilson so that’s it for this episode because we are totally out of time but I would like to thank all my Pena list today Justice Cooper justice Wilson for especially coming down for our show on a special request professor C Raj Kumar for in a sense ideating for this episode in fact I would like to acknowledge his contribution to the ideating of the topic because he is generally not used to discussing episodes in n now we compared judiciary and democracy these two nations which is not the rule the episodes that we do on Legally Speaking Justice Sikri as usual been kind enough at very short notice to participate on the show and thank you viewers for watching us and supporting us and we will be back with more such episode but that’s it thank you so much for joining us today thank you.