Thursday, February 8, 2007

Excerpts from an Interview given by CJI

Excerpts from an Interview given by CJI

Chief Justice of IndiaK.G. Balakrishnanspeaks to Karan Thapar in an interview on Devil's Advocate telecast on CNN-IBN and CNBC on February 4 and 5. Excerpts:

— FILE Photo: V. Sudershan

K.G. Balakrishnan: "I've got an open mind about anything which may improve our system ... if the country needs a better system we should have it."

On former Chief Justice S.P. Bharucha's estimate that 20 per cent of the judges could be corrupt and on the public perception of corruption in the judiciary:

If people perceive the judiciary as the whole system consisting of the judges, the members of the supporting staff, members of the High Court staff, the Supreme Court staff, the advocates, the advocates' clerks, all those involved in the system, in that way there may be some corruption [but] I don't agree that there is so much percentage of corruption amongst the sitting judges.

What percentage of judges do you think are or could be corrupt?

Judges of the superior courts?

Judges of the High Courts and judges of the Supreme Court.

Against only a handful of judges are there allegations.

So is the public perception that judges are corrupt an exaggeration?

If they talk about the whole system there may be some sort of corruption in the system. [For instance] whilst filing cases something may have happened. People say whilst going to the court one has to pay something.

But judges as such ... I don't think there is large scale corruption amongst the sitting judges of the superior courts.

On the proposed National Judicial Council to enquire into allegations of corruption against judges:

There are some allegations and it is better there should be some mechanism to find out whether anything could be done in this regard.

On the question of including laypersons in the National Judicial Council:

It's a question of independence of the judiciary. If any other person conducts such an enquiry about any judge it will cause serious encroachment into the independence of the judiciary. I personally believe if anyone else enquires into the allegations against the judges and imposes punishment I don't think any self-respecting judge would like it.

On whether the Chief Justice of India should be subject to the authority of the National Judicial Council:

Personally I don't mind. I'm the Chief Justice but I don't mind my accountability being examined, my actions being scrutinised by any committee consisting of judges. I have absolutely no objection. But I say in the case of the Chief Justice of India [what will] anyone else outside India think if the Chief Justice is exposed to such an enquiry? [Anyway] the Chief Justice is not above law. Impeachment and all the other provisions are still there ...

In other words although personally you have no problem with people investigating you as an individual you think the office of Chief Justice should be kept outside the purview of the Judicial Council?

It would help the image of the Indian judicial system.

On his own role in the enquiry into corruption charges against judges:

I will diligently enquire into all matters but I didn't expect a large number of complaints. Even though so many complaints are filed most them are [out of] malice against some judges. No serious corruption charges are made. But certainly I have to discharge my constitutional obligations.

On whether judges should be required to file annual statements of assets:

Now it is voluntary. When a judge accepts appointment he is asked to give a voluntary statement and he gives it. If you are very strict and it is compulsory no self-respecting person will accept. This [the job of a judge] is a post [to] which [one] is not recruited but appointed. Good people are sought after.

What you are saying is it will have a deleterious effect on people wanting to become judges.

That's the problem. It should be persuasive and it should be voluntary.

On the question of changing the procedure for the appointment of judges, before the Chief Justice concluded that the present system of selection by a collegium of the court was working adequately though "there may be some candidates of whom you could say he was not the right person":

If any better mechanism or any improved mechanism is there we should welcome that. I'm not against any change in the system or any improved method of recruiting judges. I'm not against it.

So you have an open mind about ideas like the National Judicial Commission which both Chief Justice Verma and Chief Justice Rajindar Sachar have been talking and writing about?

I've got an open mind about anything which may improve our system ... if the country needs a better system we should have it.

On the controversy surrounding the appointment of Justice V.K. Jain as Chief Justice of the Punjab and Haryana High Court:

I was also involved in that. I don't want to make any comment on anyone who is a sitting judge. I recommended his name. I was a part of that.

On the question whether three judges had opposed Justice Jain's initial nomination and that the collegium had insisted on his candidature after the President requested reconsideration even though there was no unanimity:

They [the reports] are not fully correct.

Not fully correct? They could be partially correct.

Yes, yes, yes. I don't want to divulge these details. They are confidential matters. It's not proper for me to divulge these matters.

I understand. I don't want to embarrass you but you are indicating that some of the stories that suggest the appointment may not have been satisfactory may be correct.

Any views could be there.

On whether there are any limits on the Supreme Court's power of judicial review:

There is no limit as such. Any parliamentary legislation could be challenged but then the grounds for judicial review are limited.

But within the grounds established by the Constitution there's no limit?

There is no limit.

On whether opening up the laws in the Ninth Schedule to judicial review meant that Tamil Nadu legislation providing for 69 per cent reservation would be struck down:

We cannot say whether the challenge will be sustainable. We cannot say now. Nothing is stated about any specific legislation.

Are you suggesting that it is possible that the Supreme Court may review the Tamil Nadu legislation and not strike it down?

Hard to say. I couldn't say anything at this stage.

There's no guarantee it will be struck down.

There's no guarantee about any law ...

So you are also saying to politicians don't prejudge the issue, don't frighten yourselves by your own apprehensions? That's what you're saying.

Yes, Yes.

In other words, take it step by step. Don't come to a conclusion in advance.

Many of the reactions by many people are without fully reading the text of the judgment.

They are uninformed reactions?

Yes

On the call soon after the Supreme Court's decision on reviewing laws in the Ninth Schedule by, among others, Tamil Nadu Chief Minister M. Karunanidhi and Union Cabiner Minister Ram Vilas Paswan to amend the Constitution to save laws such as the Tamil Nadu Act on reservations:

How do you respond to calls that you should be prevented from reviewing things like the Tamil Nadu legislation?

You are aware of the Kesavananda Bharti decision that the basic structure of the Constitution cannot be amended for the time being. So some of the views amounts to saying that the basic structure of the Constitution can be amended.

In other words such politicians who are threatening to further amend the Constitution don't realise that they can't do it?

They are not fully correct from the constitutional perspective.

On whether he agreed with the Supreme Court's order on the Jharkhand Assembly which Speaker Somnath Chatterjee felt had trespassed on the powers of the legislature and disturbed the delicate balance of power in the Constitution:

The Indian Supreme Court is not like the American Supreme Court where all the nine judges sit together and take a decision.

So you are suggesting that some judges may disagree with other judges and therefore it is also possible that you don't agree with this judgment?

It is not a uniform view of the entire 25 judges. There may be different opinions about many things...

You are indicating by the nature of your answer that you as an individual may not have agreed with this judgment itself?

These are legal problems. You cannot say any final thing about any constitutional issue. There may be further development in law. Two plus two is not four in constitutional issues.

On the Government's decision to treat as obiter dicta (i.e. to ignore) part of the October 2006 Nagaraj judgment speaking of the creamy layer concept in reservation for Scheduled Castes and Scheduled Tribes.

It is not proper for the judge, especially when he is party to the judgment, to react or interpret and give colour or meaning to the judgment ... we don't react to the executive or some Ministers or politicians. We don't make any statement. Have you ever come across judges contradicting somebody?

On whether the Government could ignore one part of the judgment:

Ignore the judgment? If the Government is not complying with any judgment contempt of court and all [such consequences could follow].

If the Government is not complying contempt of court could follow?

Some such things are available to the citizens ... when the judgment is not complied with the affected parties should come to us. Then the matter will be considered on the judicial side.

On whether it was embarrassing for him as Chief Justice of India to have his judgment criticised in public by eminent lawyers and sometimes also by his eminent predecessors:

Absolutely not. Why should we feel embarrassed about that? Otherwise how will the law develop? Why should we bother about the criticism and [questions like] you should be embarrassed?

So just because a man is Chief Justice of India doesn't mean his judgment cannot be wrong? It can be wrong?

Yes it could be.

But isn't it embarrassing for the Chief Justice to be told that his judgment is wrong?

No, no, no. The law is a developing subject and the Supreme Court has got the power to review its judgment, correct its judgment. Even earlier judges could be corrected.

© Copyright 2000 - 2006 The Hindu

Date:08/02/2007
URL: http://www.thehindu.com/2007/02/08/stories/2007020804511100.htm


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