What reforms does the system of judicial appointments need?
The current system is carried out in secret and there is a lack of transparency. We must select an independent Judicial Appointments Commission, with a representation of the judiciary, executive, academia, and eminent people, which functions openly.
How should nominations be made to the Supreme Court and high courts?
There is no defined procedure. When I headed the collegium in the Delhi and the Madras high courts, I used to have a wide consultation with judges and Bar members outside the collegium. Even though the candidate gives an exhaustive bio-data, there is no transparency. Also, there is no investigating agency or machinery with the judiciary to enquire into allegations against a candidate. We do receive complaints, but the Intelligence Bureau does the investigation. There are times when reports are doctored depending on the government in power.
The SC collegium bypassed you for elevation. What was the procedure?
I don’t know. There is no formal communication between the judge and the collegium.
Did you try to find out what happened? You have said you were hurt.
I never made any grievance till the question was put to me. I have never made any enquiry. For me it’s a closed chapter. To keep the controversy going on will not be good for the institution. Once I took up the job, I marched like a soldier.
What is behind judicial corruption?
It is not peculiar to India. I’m proud that corruption in the superior judiciary, by and large, is minimal. If you bring in transparency in appointments it will reduce the possibility of misuse of office. Corruption can take many forms — bribes, favours to lawyers, nepotism, tendency of politicians to interfere or sometimes even allowing them to interfere, are some.
Why shouldn’t judges openly declare their assets?
There are two aspects to this. One is whether it could mean information under the RTI Act. In that case, the Central Information Commissioner can directly disclose the information. The second aspect is to put it on the website. In European countries there is no declaration of assets. According to the law, the judges must declare their assets to the CJI or CJ of the HC, which is exempt from disclosure under Section (8) J of the RTI Act unless a larger public interest is established. There is a lot of resistance to put the entire information on the Internet for security reasons.
Why is the judiciary in a general state of decline?
I don’t agree with that. It is vibrant. We are giving too much importance to a few headlines.
Why does the question of the integrity of judges come up then?
A few recent incidents have caught the attention and therefore the judiciary is not seen in good light. Two cases of impeachment in such a short span of time have sent wrong signals. The courts are constantly under media glare, which is a good thing.
Why is there such a large backlog?
There are more than two crore cases pending in our courts. The number of judges is low compared to other countries. In the Chief Justice’s conference, we decided that a judge should not look at more than 500 cases and for a magistrate it should not exceed 1,000 cases. But today a judge’s file has more than 10,000 cases. Delhi has nine lakh pending cases, out of that 6.3 lakh pertain to bounced cheques. Our methods of case management are also archaic. How does one decide priority?
Why has the judiciary failed to end corruption in public life?
The role of the court is not to put an end to corruption. But what should happen when corrupt public servants are brought before the court — is an expeditious trial and punishment. What is happening in most corruption cases is that because trials get prolonged, those involved engage a fleet of lawyers to fight and take advantage of the loopholes. Another disturbing feature is the tendency to interfere with criminal trials by filing petitions for the stay of the trial, which ultimately ends in the acquittal. To that extent, one may criticise the judiciary’s ability to deal with corruption. But lawyers and investigating agencies are also responsible. Sometimes witnesses are not brought before the court, the officials involved are transferred and so on. What the government should do is to take out the petty cases — fines and penalties — from the criminal justice system. We must think of innovative measures of improving the criminal justice system. Thousands of undertrials are languishing in jails. In a few cases the accused does not even know why he is in jail. It is disheartening that some of them cannot hire lawyers or even furnish money for bonds.
What are the three fundamental issues of crisis before the judiciary?
Judicial delays and cost of that, is one. Lack of modernisation would be the second. The third is credibility. People should have faith in the system. Without that, the courts will not survive. There is a sense of frustration among the litigating public because matters are not disposed off in time, the procedure is cumbersome and hiring lawyers is expensive. Giving speeches here and there is not the vision of the judiciary. All government departments prepare a vision statement. Where is the vision statement of the judiciary?
What else corrupts the judiciary?
Post-retirement appointments. In all democratic countries, the age of retirement for a judge is 70 years. In India not only is the age of retirement on the lower side but there is also a difference between the retirement age of high court judges and those in the Supreme Court. When HC judges come for consideration for apex court, they are preoccupied with thoughts of further elevation and extension.