Conducting legislative study can prevent unnecessary litigation: Justice S K Kaul

Supreme Court judge Justice Sanjay Kishan Kaul on Saturday said conducting a legislative impact study and examining social context of a proposed law can prevent unnecessary litigation.

Speaking at the Constitution Day celebrations at the Supreme Court, Justice Kaul said access to justice is a decentralised exercise and the mission of enhancing justice requires more collective effort.

Since 2015, November 26 is observed as Constitution Day to commemorate the adoption of the Constitution by the Constituent Assembly in 1949. Earlier, the day was observed as Law Day.

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"Conducting a legislative impact study and examining the social context of proposed law can be impactful in preventing unnecessary litigation. Other than examining the viability and desirability of proposed legislation, it is also important to see whether the existing judicial mechanisms are prepared to adjudicate the new class of litigation that can arise," Justice Kaul said.

"It is for these reasons that we need to rediscover the forgotten element of our constitutionalism. Not only is this necessary for our healthy democracy, it is an under-utilised way of securing access to justice," he said at the event attended also by Chief Justice of India D Y Chandrachud, Prime Minister Narendra Modi and Law Minister Kiren Rijiju.

The top court judge, who is also the executive chairman of the National Legal Services Authority, said lawmakers and courts need to work together for providing legal aid, and creating a mediation framework for different kinds of disputes.

"I would like to highlight the areas where lawmakers and courts can work together. First is the provision of legal aid. We know there is a large problem of undertrials languishing in prisons for extended amounts of time. This is an area where we must urgently divert our attention. Our collective effort led to a significant change. The recent scheme for certain categories of prisoners to commemorate the 75th anniversary of the nation's independence was an exemplar in this regard," he said.

"We can also concentrate our efforts towards conducting a thorough study of the effectiveness of legal aid processes through legal aid lawyers and provide them with appropriate incentives and training," Justice Kaul said.

The second area is creation of a mediation framework for different kinds of disputes that can go a long way in reducing pendency of cases before courts, he said.

Voicing his views, Attorney General R Venkatramani said it is important that the government stops overloading the Supreme Court with endless statutory appeals and huge flow of cases from high courts.

"It is important that the government stops overloading the Supreme Court with endless statutory appeals alongside seamless and huge flow of cases from high courts. The conversion of the Supreme Court into a small causal court must stop...," he said, adding that high court should also be decongested.

He said every department must have a resolution wing and every matter need not be a legal dispute matter.

Family courts needed to become more comfortable and that there was a need for a settlement commission when it came to property law and more, Venkatramani said.

"Rule of law is a non-violent revolution. More room for rule of law reduces violence. I look forward to a day when the west may come learning from us on justice standards. Colonialism of minds and people would be free," he said.

Supreme Court Bar Association president and senior advocate Vikas Singh said the Constitution is an evolving document and it has to be an instrument of social change and keep evolving.

"Three things which I think are very necessary for our Constitution to survive and prosper are by bringing in law to bar criminals from getting into politics. The anti-defection law needs to be strengthened. A person who is guilty of anti-defection cannot be permitted to get back in the same house. He should be debarred. Lastly, I feel the collegium system also needs to be improved," he said.

"The premise that judges know lawyers seems attractive but on a deeper scrutiny level it's impossible for a collegium to know lakhs and lakhs of lawyers in high courts. So the fact that judges know the lawyers as basis of collegium is extremely faulty. To ensure power remains in the right hand we have to ensure the power remains intact," Singh said.