“THE INDIAN LEGAL SYSTEM IS A FAIR AND POWERFUL SYSTEM”
Ever since his student days Mr. Jaitley was actively involved in politics at the college level. He was arrested during the emergency and spent a few months in prison. He completed his law from the University of Delhi in the year 1976-77 and was also the President of the Students union of the university. Mr. Jaitley started his career in law and from the very beginning performed extremely well. Still young in age Mr. Jaitley became a designated Senior Advocate and also the additional Solicitor General of India. But inspite of his busy schedule, interest in politics always remained at the core of his heart. Mr. Jaitley was very closely associated with the Bhartiya Janta Party and later became the Union Law Minister and presently is the spokesman for the Bhartiya Janata party. While in the ministry Mr. Jaitley has done a lot for the better working of our judicial system by proposing / introducing several legal reforms. In an exclusive interview with our correspondent Mr. Arun Jaitley shares with us his experiences as the Law Minister.
What motivated you to enter the legal profession?
When you are going through your academics your aptitudes keep growing and finally it is your basic aptitude that determines the choice of your profession. I belong to a family where there were a large number of members in the legal profession. I was already active in student politics and debating was my passion and therefore law almost became a natural choice of career for me.
Ever since your student days you had been actively involved with politics. Even after you had entered into the legal profession, you continued to be actively involved in politics. How did you manage to cope up with both your professional life and political activities, when both the said professions needs full time devotion?
For the last 22 years i.e. since 1977, when I had entered the legal profession, I never missed even a single day of Court because of my political activities. But, I never got into electoral politics i.e. I never got into constituency politics. Therefore, my priority during this period primarily remained law practice, and while my priority remained law practice only a specified part of my time remained with the political activities.
The reality, however, is that there is a very large world outside the legal profession and I feel that in my three years in the government, I have learnt more, than what I did, in 22 years as a lawyer.
What are the primary law reforms necessary to enable our judiciary to work in a better and more effective manner?
Regarding law reforms, we must first try to know and ascertain what the problem is. The Indian Legal System is a fair system. It is a powerful system, but is over crowd therefore slow. The tenure of reforms therefore has to be two fold. One is to change laws in context of changed technological and economical environment. That in fact is a process which is already going on. The second is how to fight the delays in the Indian Legal System. Now I have been able to analyse by myself as to where the problem lies. First our procedures are too lengthy and capable of being exploited by any one who wants to delay matters. Therefore procedural laws are required to be changed. After consultation with the bar association and other important agencies I finally got managed to amend the Code of Civil Procedure from the parliament. It has now been notified with effect from 1st of July’ 2002. If the amended code is seriously implement by both the Bench and the Bar, the life of a civil case should not be more that one year. Each stage of a case has been compartmentalised and fixed into a time frame. Similarly with respect to the criminal procedure we have appointed an expert group, which is also going into this question. But I never got into electoral politics i.e. I never got into constituency politics. Therefore, my priority during this period primarily remained law practice, and while my priority remained law practice only some past of my time remained with the political activities.
The 2nd issue relates to even reforming our existing laws and binding them into a time frame. For instance, we have done it in context of personal laws. We have said that all maintenance applications are to be decided within 60 days. Similarly changes are now being made to Negotiable Instruments Act, specially with regard to Section 138, which probably will be approved in the next session of parliament. The third area is to create an effective ADR mechanism where people have remedy outside the Court premises. For instance, the new amendments to the NALSA Act which we have made in this session which I am going to notify very soon, to have permanent Lok Adalats in all public utilities. The people instead of rushing to Courts must have a Pre-Litigation Forum for resolving that issue.
The Indian Legal System is a fair system. It is a powerful system, but is over crowd therefore slow. The tenure of reforms therefore has to be two fold.
4th area on which I am working on, is the use of modern technologies and techniques. This scheme is a very successful experiment, which I planned and wherever it has been implement, it has worked out very well. Then we must also try to increase our judge strength. But before we do that, we must fill up the existing vacancies.
What do you have to say about the rising costs of litigation?
I would say that the problem of costs is really at the level of a few counsels and a few law firms, which mainly deal with the corporates. If you see the large body of Indian advocates, across the country, most of them are not involved in any High Court litigation. However, there are people who because of poverty even cannot afford that and therefore it is necessary that the legal aid system, which is now operating right upto the district level, wherever there are short comings we must try and remove them.
As regarding our Legal education system, what would you say as to whether a 5 year course after intermediate is good or 3 year course after graduation is better?
Now days there are so many colleges and universities which are offering a 5 year course. We did not have any system of 5 year courses when I was doing my law from Delhi University. I think that one can have a better understanding of the subject if he persues a law degree after graduating in any discipline. But, certainly, the experience of the 5 year courses has been that the students being produced out of it are more professional.
How effective has been Prevention Of Terrorism Activities Act, (POTA), in Kashmir. How many terrorists have been booked till date under this act?
The purpose of a strong anti-terrorist law, per-se, is not that it stops terrorism. Terrorism is stopped by either a political solution or by a military solution. Law does not stop terrorism. The purpose of law is that those terrorists who are arrested, how do your deal with them. Do you give them a very friendly legal regime, which enables them to exploit the legal provisions and get away with it or do you give them a very hostile legal regime which can actually make them accountable and be then a deterrent against further terrorist crimes. Now the POTA is madelled on all internationally accepted models and bench marks of strong anti-terrorist laws. It seeks to ban terrorist organisations. It makes memberships to terrorist organisations an offence. It seeks to lay down a new procedure by which a terrorist can be tried. It seeks to confiscate profits of terrorism. It seeks to confiscate properties earned out of terrorism. It seeks to seize terrorist funding and seeks to punish those who fund terrorism. Now these are the various deterrents which has been included, and such a law is certainly a great help to the police and investigating agencies in dealing with those terrorists who are arrested.
In the past there had been news about changes in the Sick Industrial Companies Act (SICA), specially with respect to section 22 of the said act, which gives protection to a sick company against litigation. Can you elaborate on these reforms and how would the proposed reforms affect the functioning of Board For Industrial and Financial Reconstruction(BIFR).
I strongly believe and agree that SICA has failed to deliver. That is why, one of the first things I did was to have a new insolvency chapter drafter in context of Companies Act and the same was introduce, last winters in the parliament, and is now before the standing committee and I think that every market economy needs a strong exit law. We must have a provision where the sick companies can either be expeditiously revived or expeditiously liquidated. You cannot convert them into non-performing assets forever. Secondly you do not need a mechanism where, as to deal with corporate sickness, the jurisdiction is vested one in the High Court, two in the C. L. B. and three in the BIFR for revival or winding up. The problem is common. The problem of insolvency and it must be dealt with by one forum. For this purpose I proposed to set up the National Company Law Tribunal, which shall deal with all such issues. Secondly, there must be a time frame for revival or winding up. Thirdly, the present system of Official Liquidators for winding up, has miserably failed. I with my little experience have not seen many creditors, or workmen or revenue been paid by this O. L. mechanism. Therefore, we have to have, simultaneously a panel of private liquidaters, to deal with this liquidation mechanism.
After becoming the law minister, what do you miss most of the legal profession? Well let me answer this question very very honestly. You see, that as lawyers, you become very unifocul and you think that it is just the law and courts, which regulate the whole world. The reality, however, is that there is a very large world outside the legal profession and I feel that in my three years in the government, I have learnt more, than what I did, in 22 years as a lawyer. So, it only an evidence, as to how little you learn when you are a lawyer. Of course, what you do miss out is some other beneficial aspects of the legal profession. I have now learnt to live within limited means. We must have a provision where the sick companies can either be expeditiously revived or expeditiously liquidated. You cannot convert them into non-performing assets forever.