‘Entire society is suffering from degeneration of values’

The biggest aberration is delay in the delivery of justice. Delays result in denial of justice to the common man. Former Chief Justice of India,
JS Verma , opens refreshing new windows on the conduct of Indian judiciary

Sadiq Naqvi Delhi

Do you see a crisis in Indian democracy, the whole political system?
As a matter of fact there seems to be a crisis in the whole country and no institution can be free from that. The only difference is in the degree and not in kind.

What can be the remedial measures?
C Rajagopalachari, known as Rajaji, has said it long back that individual rectitude is the foundation for national character – that is the unit. What we need is a restoration of the values which seem to have degenerated everywhere. The entire society is suffering from degeneration of values and the people from the same society are manning every institution. So one should start from himself, as Gandhiji said, "Be the change you want to see in the world." We only seem to be focussed on personal gains; national interest even for the so called public men seems to be incidental and it is personal interest which seems to outweigh national interest.

Do you see a similar degeneration in the judiciary as well?
Well, judiciary is not outside the society or the country. But, comparatively, things are not so bad there as there are elsewhere. There are only exceptions. It only conveys, there are some aberrations there as well, no doubt about it, but then again it is a reflection of the society as a whole.

Can you please elaborate about these aberrations you are referring to?
The biggest example is the delay in the delivery of justice. Delays result in denial of justice to the common man. And speedy justice is interpreted by the Supreme Court itself as a part of the right to life and dignity under Article 21. That needs to be translated into reality. This is one area and it is doable. And steps should be taken to ensure that going to court is no longer something which people with a genuine grievance are afraid of. They should be willing to go there and get justice soon. Unfortunately, long delays are also making people resort to extra-legal methods. This is very worrisome. And corruption appears to be an all pervasive phenomenon everywhere. Although the judiciary, by and large, appears to be much better, but some aberrations seem to be there also. Judiciary is not free from it and I can't say that it is free of corruption.

So you agree that corruption exists in the higher judiciary as well?
It will be naïve to say that it doesn't. Where you have at the very highest level and on good basis that it exists, then someone is answerable to that charge. And that it involves certain former chief justices of India as well – so how can one say that it doesn't exist? You can't exhibit the austerity syndrome and say that it doesn't exist. By and large, judges are honest and proper. But not even one aberration should be left at the highest level.

Do you think that (former chief justice) KG Balakrishnan should have resigned in the wake of allegations of corruption?
I have said it much earlier that he knows best whether the allegations are true or false. If they are false then he should revert them and prove them to be wrong because people seem to be thinking that there is something fishy. I must put it like this, he owes it to the stature of his office that he has held that the name should be cleared. So if it is untrue than he should prove it, clear his name and save the office from disrepute. In this situation, I would have been happy had he resigned or even if he does it now.

Some judges, it is felt, tend to compromise towards the end of their careers for post retirement postings...
I think that even for one minute, or even one day, even at the fag end of the tenure, a judge should behave any differently as how he behaved on the first day of his career. Although, I believe that conditions of the service should improve. You see, except for a Supreme Court judge, everyone else is free. A high court judge can go and practice. It is only Supreme Court judges who are not expected to do anything directly or indirectly. For example, working for personal gain, giving opinions which are cited in courts and authorities. It's a different matter if the president or prime minister or some governor or some government agency asks for your opinion; you give it, but not for any personal gain and certainly not for being produced in the court. It is only to facilitate them to make their decision – that is all. Personally, I feel that Supreme Court judges should be given the salary as lifetime pension and an express bar should be provided from doing anything for personal gain or money. Even arbitration – at the request of the government they do it – but not for any personal gain.

Gandhiji said, ‘Be the change you want to see in the world.’ We only seem to be focussed on personal gains; …it is personal interest which seems to outweigh national interest


Coming to the lower courts, there are allegations of corruption. How does one deal with that?
It's like this. I believe that high courts are pivotal in the administration of justice. And it is in them that the control over subordinate judiciary is vested under Article 235. If the high court does its job, the subordinate judiciary is under its control, it is not difficult. I was in the high court before being elevated to the Supreme Court. I feel subordinate judges are under their control and they should control them.

You don't feel the need of a separate legislation to control this menace?
No question of that. It is already there. Article 235 is there. The Constitution says it. The only thing needed is proper control being exercised by the high courts and therefore the high courts themselves should be up to the mark.

How does one explain and deal with the high cost of litigation?
I think it is time that some strict measures are taken. I think the maximum cost is the lawyer's fee and that is totally uncontrolled. And the courts have no control over the bar after the Advocates Act. Earlier, they had some kind of control. And now you have persons who have been indicted for highly unprofessional conduct and they also are not debarred from practice by the Bar Council of India which has the disciplinary control over the bar. So something needs to be done. Because, if the worst kind of ethical and professional misconduct goes unpunished, then it is a grave problem. And I am quite clear that there ought to be some kind of a regulation on the fees also. Even I can't imagine the kind of fee which is being charged and I don't think anyone has got the amount of the kind of fees they are charging. I am told that they take Rs 25 lakh, Rs 50 lakh, even Rs 1 crore per day.

Can one expect fairness when this kind of money is involved?
No, no. This is fleecing. This kind of money is not given by people when it is hard-earned money. I don't think they are as great a lawyer as late MC Setalvad. His fees was very moderate. I think this is one of the biggest things which need to be controlled.

Coming to PILs, there are allegations and charges that there are certain lawyers who file targeted PILs.
I can give you an example that when we were there, we had introduced the concept of amicus curie in the Hawala case. I was presiding over that bench. The case was brought by someone. We appointed Anil Dewan as Amicus Curie and even that person (petitioner) was required to come through the amicus and so the amicus was responsible to the court as friend of the court and the original petitioner had no control over the litigation. Similarly, so many other matters came during that time, like Subramanian Swamy brought this Indian Bank versus Jayalalithaa and many others. We entertained them because there was public issue involved. But an amicus curie was appointed. So if courts control the proceedings, it is in the nature of representative action in public interest. The court has to look in public interest how justice is done. It is best served by not letting someone make it a personal fight. Then, he can be manipulated also. This is what you are trying to say here. This is also what others are saying. So the court must see that the proceedings are done objectively and impartially and that can be done by appointing an amicus who has no personal interest.

Coming to the recent judgements, the one on the 2G spectrum case etc. Do you see any judicial overreach?
It is like this. My understanding and how I functioned was like this. It is the court's duty, when a matter of this kind, of public interest, is brought to the court, and the court finds that the public functionary is not performing his duty; then it is the court's responsibility to compel that public functionary to perform his duty. In the Hawala case, what was the problem? The CBI, which was supposed to investigate, was not doing its duty when the higher ups were involved. So what we did was to compel the CBI to investigate and file the chargesheet and we did not make any observations about the merits of the case, we did not name any accused. We just ensured that they investigate and report to us so that we saw that they are working. The merits of the case were to be seen in the court where the chargesheet was filed. So, in short, monitoring was done by the court only to see that they are working. The quality of the work, how good or bad, is to be seen later on by the court of general jurisdiction where the case goes. It is only to make them perform their duty and not to take over their function.
In the Hawala case, a number of times, the amicus curie filed an application to constitute a SIT chaired by a retired Supreme Court judge and we said what does a judge know about investigation? That is a statutory function to be performed by an investigating agency. The court only has the power to issue 'mandamus'. Mandamus means direction to perform a legal obligation which the concerned authority is failing to perform. We developed the concept of continuing mandamus. Instead of a one time mandamus, we said we will continue to monitor the case till you finally complete the task and report it to us. In case you say that there is no case to file then we will see whether you have performed it or not. But in that case they filed chargesheet in every case so it was over.
So if the Supreme Court or the high court were to make any observation on the merits of the case or even name an accused then the dice will be loaded and the person aggrieved can make a grievance that he has not had a fair trial. Because any observation by a higher court... well... if the trial court is not even influenced by that it would be not unreasonable to think that it is being influenced. Justice should not only be done but it should be seen to be done. So legitimate judicial intervention is that which compels performance of a duty or a legal obligation which the public functionary has failed to perform but does not take over its function and perform itself. For example, sealing done in Delhi under supervision of the court, where does the aggrieved person go?

If detaining the person is not necessary for ensuring his presence and for a fair trial, then there is no reason why he should not be granted bail 

Another test is what you call judicial activism, is intervention based on a legal or juristic principle. Either existing or newly evolved. Now, continuing mandamus is newly evolved so that it has precedence value to be followed in subsequent situations later on. So, continuing mandamus developed in the Hawala case is what you are seeing in 2G, CWG and all that.

But in 2G, they almost laid down a policy. National resources should be auctioned...
As a general principle it only means an equal opportunity to everyone who is in the field. Now, how you do that between available options is for the concerned authority to decide.

But the court has said only auction...
I don't know, it is to be tested. In this case it may be. Prima facie it appears that an open auction gives equal opportunity to everyone. But there may be situations... a matter of policy, ultimately, is something, unless it is hit by the rule of non arbitrariness... or malafide. You see the court does not step into that terrain.

The Centre has filed a review petition in the Vodafone case...
I've told you, the test which I think should be applied. Between available options which option to choose is for the authorities concerned to decide and not the court. The only thing is whatever is done should not suffer from arbitrariness or malafides or favouritism etc.

How does one maintain the balance between different institutions?
It is not difficult. If you remember, all three institutions are there to sub-serve the common purpose of public good. What is the constitutional purposes to be served, there is no problem about that. The areas are demarcated. Judiciary has a role of controlling others and since there is no outside control over it, it should control itself.

So, the control should come from inside. There should be no outside control...
The areas designated to others, you must ensure that you don't take over that.

Do you think that the judicial accountability bill, which is in the pipeline, will be any answer to the ills?
Of course. You need a judicial accountability bill. Earlier, conventions were good enough. But now that there is a need for some legal sanctions also, for example, the resolutions of code of conduct etc, that was in my time in 1997 when I was the Chief Justice. But that has only social sanction and it did not have any legal sanction to be enforced. Now there is a felt need for some kind of legal sanction; it should be there. But a proper balance should be drawn to see that while it provides for identifying and punishing an aberration, it ensures judicial independence and does not interfere with proper judges who are in large majority even now.

Do you feel that the Indian judiciary is class biased when it comes to dispensation of justice?
I don't think the judge should have any kind of bias. To say that judiciary is class biased... I don't think (that is) a correct perception. Some individuals may display that trait. Why should the whole institution be (branded)?

We recently saw so many powerful people being denied bail in 2G, CWG etc...
I can't comment on individual cases because it depends on the material available which I have
not seen.

But bail is a right...
Ordinarily, the purpose of keeping someone under detention is that he should be available to face the trial. It is well known and ordinarily you should not interfere with the liberty. If detaining the person is not necessary for ensuring his presence and for a fair trial then there is no reason why he should not be granted bail.

Does it appear that they were under public pressure?
They would know better. I would want to believe that just like in my case they did not act under any such pressure.

This story is from the print issue of Hardnews: MARCH 2012