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Judicial reforms are an idea whose time has come

Last updated on: July 06, 2009 14:52 IST
Indira Jaising, distinguished Supreme Court senior lawyer and well-known human rights activist, has been appointed Additional Solicitor General, the first woman to become a law officer in the country's highest court.

On her very first day in office, Indira Jaising pens a column exclusively for rediff.com on what her new assignment, new responsibility and new challenge mean to her.

Few people know the role of law officers in the country; although the judiciary and the decisions they make are much in the news. Hence it is important to say a few words on the subject.

The President, on the advice of the executive, appoints the attorney general of India. He (there has never been a she) has the right to address Parliament. His function is to advise the Government of India on all legal matters on which his advice is sought and to represent the central government in the Supermen Court of India and any other court in which he is asked to appear.

Unlike in the United States of America where the attorney general is a political appointee and is required to be confirmed by the Senate or in the United Kingdom, the attorney general in India is not a member of Parliament and hence not a member of the Union Cabinet. There is no doubt that the appointment is made for political reasons in the sense that any government would be entitled to appoint a person in whom it has confidence.

It would be unlikely that a Bharatiya Janata Party-led government would appoint a Congress sympathiser or vice versa, but it does not follow from this that the person belongs to a political party when he or she is being appointed. In that sense, the post was conceived as an independent one for a fixed term. However, the person would be expected to resign when the government that made the appointment goes out of power, or when its elected term ends.

The attorney general is assisted by the solicitor general and by the additional solicitors general.

Being the first woman to be appointed additional solicitor general in the Supreme Court, I feel a special duty to explain my own reasons for accepting the post. To begin with, the posts have been a male bastion and there is no doubt that this appointment crosses that barrier and the post will now cease to be considered as reserved for men alone.

It is in this context I am sure the appointment will send an electrifying signal to women lawyers all over the country, to aspire to the highest law offices. The significant appointment comes a couple of decades too late if one compares it with the appointment of a woman attorney in the US by President Bill Clinton.

The writing has been on the wall since then, inviting governments all over the world to do the same. India has responded to the idea a good 10 years later and not yet at the level of the attorney general. My appointment nevertheless sends a very powerful message that there is a place in the profession for women, and hence it will unleash their energy and imagination.

The practice of law in courts is also considered a male preserve and many women prefer to be in corporate law firms rather than enter the courts and face the aggression of male colleagues. Many drop out from a disorganised bar, which has no system of taking in juniors, male or female. Others drop out, as they are required to take on domestic duties and have no way of managing the work at home with the work in courts. The small member of practising women lawyers is testimony to the discrimination that women face.

It bears repetition that there is no woman judge at the Supreme Court, once again pointing to the systemic problem of exclusion of women from the highest positions in the profession.

My appointment is also significant as I come with a track record of having worked for the protection of human rights and for judicial accountability. I wondered, how would I fit into a system which is meant to advise the establishment? It is my own belief that the office of the attorney general and the other law officers such as me, are held in the public interest and are not meant to be an extension of the executive arm of the government. This means that the office ought to provide us with ample opportunities to serve the public.

It is our task to advise the government on what the law IS, not what they want it be. We are called "officers of the court" and not officers of the government. This carries the concomitant duty to advise the government in an objective manner. Unlike a private litigant, the government is not expected to litigate for frivolous reasons, ignoring the unequal relationship between the litigant and the state.

The post provides an opportunity to advance the social justice agenda of the State, to defend the agenda against vested interests and to ensure that constitutional values are ever present in all decisions taken on behalf of the government.

It also provides an opportunity to participate in policy making on judicial reform and judicial administration. It is time that the government realises that the aam aadmi needs judicial reform as much as s/he needs roti, kapda and makaan or bijli, paani and sadak. Many a great social justice scheme has found its end in litigation, many a corrupt politician has found refuge in courts delays.

Today, judicial reform is a political issue, an issue on which people will vote or not vote for governments. Any government that can demonstrate it is serious about ending delays in court, in making litigation affordable to people through a functioning system of legal aid, and can inspire confidence in judges, will surely get the popular vote. This is because litigation has become part and parcel of the daily life of people.

I look forward to participating in these debates, which cannot be avoided anymore.

What kind of judges do we want, what kind of lawyers do we want, are now questions the nation is debating and these are no longer questions that can be debated alone in the court-rooms with judges. We are in for some exciting times, as judicial reforms are an idea whose time has come.

Indira Jaising