‘More courts,stricter selection of judges should be top priority for Indian judiciary’

Maneesh Chhibber: Earlier,NHRC used to get a lot of complaints from Jammu & Kashmir. Now,the state government is saying J&K does not fall within the purview of the Commission. Do you want that changed?

J&K does come within the purview of NHRC but the jurisdiction is limited. We can deal only with subjects enumerated in List 1 and 3 of the Seventh Schedule of the Constitution—those that fall in the central and the concurrent list. Human rights violations by local authorities and police may fall under List 2 (state subject). In such cases,NHRC cannot do anything.

Shekhar Gupta: What about human rights violations by the Army or Central forces?

Yes,we have the power,with respect to violations by the army or the central forces. If it involves the police,we don’t have powers,because law and order is a state subject.

Seema Chishti: There is a vibrant debate going on about who will judge the judges and about the appointment of judges,their possible removal,etc. What are your thoughts on this: is there a problem with the Indian legal system,its regulations and conventions?

The removal of judges is difficult in our Constitution itself. Probably,at that time (when the Constitution was being framed),complaints and allegations against judges were rare. The removal of judges is a very cumbersome procedure. Now,a Bill to make judges more accountable is being considered by the Government.

Seema Chishti: What’s your view on that? Do you think such a law is needed?

Going by the nature of complaints,we can think of some changes (to the procedure for removal of judges). This is a little too cumbersome.

Shekhar Gupta: Have you studied the proposed Bill?

I’ve seen the draft Bill.

Shekhar Gupta: Is it a step forward or backwards?

There are some difficulties. An inquiry conducted by someone outside the judiciary will always make inroads into the independence of the judiciary. If the inquiry is by people who have political leanings,judges may feel such an inquiry is not feasible,not proper.

Amulya Gopalakrishnan: What are your thoughts on the Supreme Court ruling that truth is a valid defence in contempt of court cases and that the Contempt of Courts Act cannot be used as a shield if the revelations are proven to be correct. What does this mean for whistleblower protection?

We have amended the Contempt of Courts Act. Even otherwise,the power to punish for contempt of court is very rarely used. It is to uphold the majesty of law,not to find out wrongdoings and punish someone. It’s to protect the system.

Sunil Jain: Increasingly,there seems to be a tendency that if it’s a ‘policy issue’ of the government,the Supreme Court is very reluctant to get into it. So even if the government has got it wrong in a matter of policy,the court says,it’s government policy,we don’t want to interfere. Aren’t you circumscribing your own powers?

Courts don’t interfere with policy matters of the government,especially in writ jurisdiction. On the basis of judicial review principles,courts don’t interfere with policy matters.

Sunil Jain: How do you justify the transfer of a judge (Chief Justice Dinakaran),who is facing an inquiry,to another High Court?

The judges are not like government officials who can be suspended,against whom disciplinary proceedings can be initiated,etc. Transfers are effected to maintain the system so that a large High Court like Karnataka—where the CJ is not able to function properly,for right or wrong reasons—and the litigants in the state shouldn’t suffer. Judges are bound to work in any High Court if they accept judgeship. (Dinakaran) has not been demoted,he’s still a Chief Justice. Better administration of justice is the prime criteria for transfers.

Coomi Kapoor: In trying to uphold the spirit of independence of the judiciary,do you think we’ve gone overboard,say in the case of the appointment of judges? Should only judges decide such matters?

We have a system where the judges of the collegium decide. When the collegium system is there,we can’t adopt any other system. If we do so,it will be a violation.

Coomi Kapoor: As Chief Justice,you ruled that the CJI should not be covered by the RTI Act.

I haven’t said that. It’s a misunderstanding. Our problem is this: in the matter of appointment of judges,suppose a judge is to be elevated to the Supreme Court,we get the opinions of other judges who worked with him or those who are already in the Supreme Court. They tell us if he is suitable. The Delhi High Court judgment says whatever information is with the judges,they are liable to be questioned on it. We have a problem with that. Suppose some of the opinions by other judges about the candidate are adverse. As Chief Justice,I can’t share that under the RTI Act. We need that much protection.

Shekhar Gupta: In the case of Justice A P Shah not being elevated to the Supreme Court,which side of the argument were you on?

When a committee considers somebody,all opinions come in. One judge gives one opinion,another judge another opinion. But that decision is collective,unanimous. In this case too,all the judges agreed (that he should not be elevated).

Maneesh Chhibber: On the issue of declaration of assets,was it your decision as CJI to go in for an appeal against the order of the Delhi High Court? Were the other Supreme Court judges consulted or did you take a decision on your own?

The issue of appeal to the Supreme Court was mentioned in the full court. In the morning,we assembled and mentioned in the full court the nature of our problem: if whatever information is with the CJI is to be shared,it will create a problem. That part we decided to challenge.

Maneesh Chhibber: This has nothing to do with the wealth of judges?

No,no. We had already declared everything (before the appeal was filed). In England and Australia,this information regarding the appointment of judges is completely barred from RTI. No country gives this information under RTI.

Manu Pubby: Do you think there’s a need for legislation to make the media accountable?

Media should have self-imposed restrictions. In some matters,they exceed their limit,like the phenomenon of paid news. Newspapers will lose their credibility. I don’t think legislation is feasible,the right to freedom of speech is guaranteed in the Constitution.

Tannu Sharma: We all know about the NHRC. But what about the 8-10 states which still,after so many years of the Act,haven’t set up state human rights commissions? For example,Haryana. How do you deal with those states?

There are only 18 Human Rights Commissions in India. Two more commissions are in the offing—in Chhattisgarh and Sikkim. In many north-eastern states like Nagaland and Mizoram,there’s no commission. They say it’s not financially feasible to have a full-fledged commission. Haryana should have a Human Rights Commission,it’s for the state government to set it up. In Punjab,there’s an acting chairperson now.

Maneesh Chhibber: What are your views on public interest litigations (PIL)?

Many good things have happened through PILs. Delhiites must remember the CNG case and the shifting of industrial units from Delhi happened only because of PILs. PIL has done a lot of good things. Some PILs are motivated. They misuse the judicial machinery. That’s to be avoided. But it (PIL) is good for the country.

Sunil Jain: What is your view on monitoring committees?

That depends on the facts of the case. Suppose the court feels that a fact-finding report will help in coming to correct conclusions,what’s wrong? The problem is when the committee exceeds its powers,or when the court gives direction,misled by the report of the committee.

Sunil Jain: If you have a judge who’s believed to be guilty,one thing is to have a quick trial and get it over with,but that doesn’t happen in India. In the case of Justice Ramaswamy,impeachment did not take place. Then,you have a situation where a judge (Dinakaran) is believed to be corrupt. You decide to move him. But if you move him to Sikkim,does it mean it’s alright for him to be corrupt in Sikkim?

It’s not like that. I don’t want to comment on individual judges. But it’s for better administration of justice.

Krishnadas Rajagopal: The new CJI,Justice S H Kapadia,has brought in a lot of changes at the administrative and judicial levels. How do you rate them?

I am not aware of them. For the last two months,I’ve not met any judge of the Supreme Court. I have not interacted with anyone. I am busy with NHRC.

Coomi Kapoor: You broke a glass ceiling when you became the first Dalit Chief Justice of India. Some people say the judiciary has been casteist. Can you tell us something about the obstacles you faced,the prejudices?

I suffered prejudices but a lot of people helped me in my profession as a lawyer and then to become a judge. I became a judge of the Kerala High Court and then went on to become CJI,of course by seniority. In this profession,it’s very difficult to survive unless you have support,professionally. Financially,you can’t sustain yourself for long. Young lawyers will tell you how difficult it is.

Mini Kapoor: After such a long tenure,what suggestions would you give to the higher judiciary to strengthen it,in terms of autonomy,meeting changing circumstances,etc.?

I have always said that we should have more courts. That should be the top priority for the Indian judiciary. I requested the PM to have CBI courts and I am glad that 50-60 new CBI courts have been set up. Selection of judges should also be stricter. A judge who knows his work well can dispose of cases more quickly than a judge who doesn’t know the basics and struggles with one case.

Vivek Sinha: A lot of delays are also caused by the absence of lawyers. This is rampant in lower courts.

In some states,it’s a problem. Advocates are very powerful in some subordinate courts. Judges are not given due protection by the High Court. They must feel secure. They must be courageous to resist the lawyers. Judges are overawed by lawyers. That’s the problem. This is a problem in the Indian judiciary. Some judges are not able to work in the afternoon because lawyers don’t turn up.

Coomi Kapoor: Why is the system in India such that a lawyer can keep asking for—and keeps getting—adjournments? Why is it being allowed?

It should not be allowed. Lower court judges should get protection. They should not entertain frivolous complaints. I have worked in different capacities. I know the problems faced by junior judges. When a powerful lawyer makes a complaint,the judge is transferred or suspended. Even that judge has a family and children.

Sairam Sanath Kumar: Recently,the Supreme Court sent back the Quattrochhi original case records back to the lower court,without disposing the appeal. How can the SC do that? Is that not adding to the delay?

I don’t want to comment on any particular case. From what I know,those records were not called for that appeal. Those records were called for a different case. For the appeal,they can again call for the records if need be. We can retain the records in only one case.

Maneesh Chhibber: Do you believe that corruption in the judiciary is rising?

I don’t have any statistics. But to always be saying that the judiciary is corrupt is not good. We have to find ways to prevent it. We need to take stringent action to prevent it. That’s the only way.

Transcribed by Sairam Sanath Kumar