Justice PN Bhagwati, former CJ of India, visited NJA on Decemer 18th and spoke to judges. Later in the evening he spoke on justiciability of economic, social and cultural rights at a program jointly organized  the National Judicial Academy and the ICJ in kathmandu. The following is the transcription of the speech he gave to district court judges.

Transcription of the address by Justice P.N. Bhagwati to the District Court Judges participating in the Juvenile Justice Program  18th Dec. 2007

When Justice P.N. Bhagwati, former Chief Justice of India visited the National Judicial Academy on Dec 18th, 2007. The Executive Director of the NJA , Justice Tope Bahadur Singh, Faculties and staff welcomed the distinguished visitor whereupon he was briefed about the activities of the NJA. Justice Bhagwati was kind to  address the judges participating in the juvenile justice program. Dr Ananda M Bhattarai, Judge and Faculty,  first introduced the participants to the visitor, briefed him about the nature of the current training that is being imparted on juvenile justice and asked the distinguished visitor to enlighten the participants on the following questions:

What is it to be a judge; what is his role, what is expected of him and how should he conduct himself/herself to meet the societal expectations. 

The following is what Justice Bhagwati said:

Hon District Judges

It is a great pleasure and a privilege  for me to be able to talk to the members of the judiciary of this country. The judiciary has to play a very important part in national life. There are several spheres in which the judiciary can play an active role.

There are large numbers of people yearning for justice. Very often justice is denied to them not by the court but I mean by the society. I am particularly going to refer to the poor and the unprivileged sections of the society who are leading a life of poverty, wantedness….They are unable to afford to go to the court because they are unable to know what are their rights. Even if they do know the rights they do not have the capacity go to the court to enforce their rights …with the result they suffer silently the injustice heaped upon them by the state or by the vested interest. And even when they come to the court they are often not well represented by lawyers because they cannot afford to have good lawyers. It is here your responsibility as a judge comes into play. Because  when the case comes before you very often the party are not matched. They are not properly  balanced. One party is superior to the other by the reason of material resources, by reason of the fact that they are able to engage a very competent lawyer whereas the other party is not. And there is always the possibility that injustice will result for want of proper representation  of the case on behalf of theweaker section or the weaker party.

It is here that you have to be very careful to see that the weaker party does not suffer for want of proper legal representation. The judge has to play an active role in such cases in order to see that justice is done, in order to see that the case of the weaker section is properly presented. Of course, the case ends… to see that proper presentation is made on both sides. …on the basis of that the judge should decide….absolutely impartially. Even if  you have to decide impartially you cannot forget the fact that that the weaker person before you does not match against the stronger person. And therefore a certain set of approach has got to be adopted, an approach with a view to see that justice is done, and when we talk of justice it is not only justice according to the letter of the law,…justice according to the spirit of the law… law is very often capable of two interpretations, as you will find  in your judicial career as you go along. And you have got to see when there are two levels of interpretations: one is a liberal interpretation and another strict interpretation. You always adopt liberal interpretation which is in favor of the common man who comes before you. Because otherwise the common man will be always be at a disadvantage. The issue applies the law very strictly against him. Of course this does not mean that you should not be impartial. Of course you need to be impartial, but impartiality does not mean being totally oblivious to the conditions of the people who are coming before you. It is a very difficult job. In order to balance, what I would call, total impartiality along with a certain concern for the weaker section of the community. It is that balance you have got to maintain.

And …many of you will be dealing with criminal cases where there is a presumption of innocence. And very often the accused is not properly defended. Sometimes he may not have even a lawyer to defend him and I don’t know whether you have any adequate legal aid system…in my country what we used to do was whenever a person, a poor person was …he had no legal assistance, he could not afford any legal assistance. And there was no legal aid at a time I am talking of early days, in those days..  we would ask a senior lawyer , a good lawyer, request him to appear  amicus curae, as a friend of the court, to appear in the defense of the accused. And when the court asks a good senior lawyer,  ..the senior lawyer would never refuse.. and the poor man will be adequately represented. I have done that in many cases before the legal aid system came into force in my country. But once a legal aid system is enforced,  there you got to ensure that every accused gets legal aid and is properly, adequately represented. ..and you have got to see that justice is done. Presumption of innocence is fully observed.

And look at the problem from the humanistic point of view. Of course I am not going to speak to you from criminal jurisprudence… there are a number of decisions that are given. but the basic point I want to mention is: as far as the criminal jurisprudence is concerned keep a few principles in mind… first the presumption of innocence, the secondly that the person, the accused  before you is adequately represented by a counsel; and thirdly that there should be no delay in dispensation of justice and no criminal case should be unduly delayed. These are the three requisites of a criminal trial laid down in the international covenant of civil and political rights. These three elements must be observed at any circumstances.

So as  civil cases are concerned, of course… you will be dealing with many of them…they are ..part of it as will see , you need to see that adequate representation is available to the weaker section of the community. Law is capable of, as I said, always capable of two interpretation; always accept that interpretation which is broad and liberal, which advances human rights, and which carries out and effectuates the whole objective of human rights jurisprudence  ….that everyone is entitled to basic human rights. Very often you find in the course of your career .. human right to the weaker section is  very often trampled upon. And it is your obligation to see that those human rights are enforced. It requires a certain amount of sensitiveness on your part, It is … you don’t sit in the court to do justice…blindly.

In the Anglo-section jurisprudence, the goddess of justice is blindfolded. I have often said that as judges you have to remove the bandage on your eyes…and let the goddess of justice see for herself the inequalities between the parties and see that justice is done to the party which is in an unequal position. If you keep in mind….this must be the end of justice. Justice is not an abstract virtue. Justice is a living reality…and as a judge, as I have often said, and I am quoting what I myself said in my judgment , …a judge is not a mimic, not an imitator, he is a creative person, he has to invest, …meaning and content… and he has to apply it for the benefit of the mankind… not just for the benefit of mankind generally, but with a view to advance the cause of human rights, the cause of justice. And that is the function which I expect all of you to discharge.

And always remember… and I end with the words...of Lord MacMiller, one of the great judges of England. He said, he told a congregation of lawyers and judges. He said: "Look out of your window. You will see the common man looking at you with wistful eyes. He is looking at you for justice. Will you give him justice?" That is a question that we ask to lawyers and judges, and that is a question that we all must ask ourselves and we must see that justice is done to all those who come before us, justice not strictly according to the letter of the law but justice according to the spirit of the law, justice according to human rights, justice which fulfils the aspiration of everyone. That is the message which I have to give to you.

And I am sure that you are all judges …it is a very sacred and solemn task entrusted to you. I am sure you will discharge it with great care and responsibility. For today the judiciary stands as a bulwark of human rights and freedoms…and if the judiciary fails the whole system, the whole edifice of democracy will crumble. Therefore on us, there is a very heavy responsibility. And I am sure you will discharge that responsibility…with these words I congratulate you, I convey my best wishes to you and hope and trust that you will march further …take more and more strides, towards reaching higher positions in your career. Thank you.

Dr Ananda M Bhattarai: Thank you your lordship, we have recorded your statement here. We will show this to all our judges who come to the NJA.