‘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 Kapoor

On 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: