‘The judiciary will not fall in line with politicians’

‘The judiciary will not fall in line with politicians’Law Minister H R Bharadwaj’s legal management skills and sound advice is sought whenever the UPA government is seen running foul of the courts. Needless to say, he has acquitted himself with honour by ensuring that the delicate balance between the judiciary and the executive is not disturbed. He disagrees with the view—made famous by Prime Minister Manmohan Singh—that the courts are over reaching themselves. His contention is that courts step in when the executive fails to perform its duty.  Bharadwaj is also excited by the revolutionary gram Nyayalaya programme, in which 6,000-7,000 judges would go to the villages and dispose off pending cases. Excerpts from an interview with Sanjay KapoorOn Indian courts being unaccountable:The Indian judiciary is said to be the most powerful in the world. The same principle applies to high courts, because they also have the power of judicial review under Article 226 and 227. As far as accountability is concerned, the judiciary is accountable to the oath of the office taken with the Constitution; they are neither elected nor are they judged by the electorate. So their accountability is to the Constitution. The judiciary shouldn’t be accountable to any other forum except its own peers. The Constitution did not provide any such accountability. But now as we have gained experience, we realise that their performance, integrity and over-reach should also be looked at. So after great deliberation and discussion at different levels, we have come to realise that there should be a National Judicial Council headed  by the chief justice. It should look into the general complaints that arise from time to time about punctuality, efficiency and integrity of sitting judges.Whether a Judicial Council should have non-jurists:Outsiders will not fit in the system the same way outsiders do not fit into a legislature. The legislature takes note of the misconduct of its own members. Similarly, judiciary alone should be given this responsibility so that there is no intrusion on judicial independence.  If five judges of the Supreme Court (SC) cannot do justice, what can a jurist do? On the confrontation between the judiciary and the executive during UPA rule:It is part of the judiciary’s job to take notice of the cases that are brought before them. There is a feeling that the judiciary is over reaching its boundaries but I would say it is not. If the executive doesn’t perform any part of the work that has been assigned to it, people will approach the court and demand action. If the judiciary draws the attention of the executive to these areas and then insists that it should be looked into, should we call it a confrontation? It is in the interest of the people       of India that the executive, legislature and   judiciary do their duty. The objective is to serve the people.The judiciary is not ignoring any matter. With the environment issue in Delhi, for instance, we have done a good job because CNG has helped creating a clean environment. Similarly, there are other issues where it might appear as if the judiciary is interfering with the executive. If the executive is alert to its duties and responsibilities and its performance is good, the judiciary will not look into these areas. It is where areas are left vacant that the courts step in. Similarly, in the legislative process if laws are made that are void of the Constitution, the courts will strike them down. Legislation should be such that it is not inconsistent with the fundamental rights or basic features of the Constitution. On the implications of putting the Ninth Schedule under judicial review:A little about the background of Ninth Schedule debate. Immediately after Independence, Nehru wanted to implement agrarian reforms and distribute land to the under-privileged sections of the society. At that time, the parliament was still provisional. Nehru pleaded to the parliament that land distribution was a promise that his government had made to the people of the country on the principle of equality and equal opportunity. Nehru got the first amendment that made the Ninth Schedule immune to the power of judicial review.  It was thought that these are the areas where there can be no controversy because they serve public interest. When some of his colleagues objected to the Ninth Schedule by claiming that it would lower the respect for the judiciary, Nehru defended himself by saying that millions of poor Indians have been waiting and he will not allow the courts or any legal struggle to come in their way. The high courts in UP and Maharashtra upheld the decision. The SC also upheld all the amendments of the Constitution and they never attacked the Ninth Schedule. They said it was done for a good purpose and for public good. On the impression that judges end up supporting business houses: Nehru was a great respecter of the judiciary. But he also made it clear that judiciary cannot deal with policy matters. Recently, Justice Tarun Chatterjee categorically stated that courts couldn’t be advisor to the government. We are following a system that all executive policies are subject to power of review. All legislations are subject to power review, that being so there should be no grievance if it concerns public interest. The judiciary examines actions of the government in two ways: First, whether their    decisions are backed by legal sanctions and    secondly, that they are done properly and not   in an arbitrary manner. These are the parameters by which the judiciary measures the executive action.On whether courts should be ideological:Governments have always been of the view that judges should be totally independent of any political colour. They should go by the Constitution because it’s their duty to interpret the Constitution and the laws.On the interests of the poor:It is the executive that should be protecting the poor and bringing in new laws and enforcing them. The parliament sanctions money for this. The court would not interfere with such laws if it does not go contrary to the Constitution. On reservation:We should see that general seats are not reduced and Socially & Educationally Backward Class students are provided extra seats and reservation, as after all these years we have yet not reached the goal of equality of citizens. Certain people challenged the amendment in the court that decided to stop the implementation this year. The government should have told the SC that it would increase the total number of seats without harming the interests of anyone. On corruption: There has hardly been any impeachment of judges or complaints. Of late, a section of people have raised the issue about corruption in the judiciary. The government has taken note of these charges and is trying to put in place a system to deal with it. Issues have come through the media. There is a procedure in the Constitution as interpreted by a nine-judge bench and any appointment of a judge has to pass through this procedure. The President of India is the appointing authority of the superior judiciary and constitutionally he has the power to point out from time to time any shortcoming and seek clarification from the executive.We are all committed toward zero tolerance on the issue of corruption in judiciary. There is no difference of opinion on this. I   firmly believe that the issue has to be looked into by peers. No one else has the power to do that. If the government starts looking into it, there will be erosion in the independence of  the judiciary.On the absence of judicial infrastructure:India has made progress in ramping up the judicial infrastructure in the last 20 years. We are giving top priority to legal education. Earlier we had only one national law school, in Bangalore. After 1993, the issue of upgrading legal education was started. Now there are about 15 national law schools in the country and they are deemed university. Infrastructure modernisation is also taking place apace. All high courts have been computerised, our second phase is to network at the district level. This would be completed in the next three years, so the courts will have modern tools to work with. We have a full roadmap of connecting the judiciary with e-governance throughout the country, from trial courts to the Apex Court. On pending cases:This malaise is greater in rural areas. We have now succeeded in convincing the cabinet to create gram nyayalayas. These mobile courts will go to rural areas and follow summary procedure for time-bound disposal of cases.This will be a revolutionary programme, which has been kept in abeyance for long years. We will be sending to 6000 - 7000 judges to rural areas. This will especially help the SC,     ST and women, who have reeling under protracted litigation. On the criminal justice system: It is a fact that criminal justice has collapsed and we have taken various steps now. The home ministry has enacted several laws. We have introduced plea bargaining and separation of investigation from the general duty of the police. Once these arrangements are made, things are bound to improve.On the future of the judiciary and its relationship with politicians:There cannot be economic reforms till there are judicial reforms. No one will bring in money in India till there is a robust and independent judicial system. Judiciary cannot be controlled. If they   were controlled the mafia would take over. People would come to the streets if there were no justice. Politicians should not promote illegal activities. Problems in the cities, like encroachment or illegal constructions, have nothing to do with the courts. It is the doing of politicians. If the courts had not acted Delhi would be unworthy of living. I have become unpopular because I have been calling a spade a spade. If we do our job according to the law there will be no conflict. If politicians want to use the Ninth Schedule for petty matters, why should the courts allow it?