The Hindu : Opinion / Interviews : "Judicial activism is a misnomer"

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Friday, Oct 21, 2005

Opinion

Opinion - Interviews

"Judicial activism is a misnomer"

J. Venkatesan

Y.K. Sabharwal, who will become the 36th Chief Justice of India on November 1, has the reputation of being a fearless Judge. He takes over at a time when the judiciary as an institution is attracting close scrutiny. In this interview toThe Hindu, Justice Sabharwal answers questions about the justice delivery system, the law's delays, corruption, accountability, and capital punishment. Excerpts:

— Photo: V.V. Krishnan.

Justice Y.K. Sabharwal: "We are accountable to the Constitution and the oath we take."

What do you think should be your priorities after you take charge as the next CJI?

My immediate priority is the expeditious disposal of cases. There are about three crore cases pending in subordinate courts. Out of these, nearly two crore are criminal cases and about 80 lakh or so are civil cases. So far as criminal cases are concerned, one has to pay a lot of attention. There are a large number of complaints cases: out of this are mainly Section 138 Negotiable Instruments Act cases, relating to the dishonouring of cheques. If those cases go out of the system, courts can be left free to do other cases. If we compare this with the figures in High Courts, it is evident that, as on January 1, 2005, the pendency is 33 lakh cases, out of which 27 lakh are civil cases and six lakh are criminal cases. After some study, special magistrates can be appointed for petty offence cases and Section 138 cases.

There must be expeditious disposal of at least two categories of cases: the corruption cases, and those relating to sexual harassment of women. All these cases deserve to be put on a fast track. If corruption cases of high-ups are decided on time, a message goes out. Today the public thinks that the cases of the high-up or powerful are not decided on time. Now I want to evolve a system whereby special judges will decide only high-level corruption cases.

Do you think the alternative dispute resolution system will be a better answer?

Apart from Lok Adalat, a lot of emphasis can be laid on mediation. We are already doing a pilot project in Delhi, and some programmes are also going on in Chennai and some other places. We are likely to come out with a national policy as far as mediation is concerned. In many countries, for example the USA, 95 per cent of cases are decided by mediation. The advantage is that there is no appeal.

What is the reason for the inordinate delay in the disposal of cases and how do you propose to tackle this?

As far as the High Court is concerned, delay is unfortunate because of various reasons. Basically they are deciding miscellaneous cases, bail and stay. For other cases, some ways and means have to be thought of; for instance, not giving admission work to those judges who are entrusted with regular matters, so that they can start the day with regular matters. This can be done with the existing judges. One can also think of appointing ad hoc judges. There must be a check on, or monitoring of, the progress of criminal cases. There can be a guideline that stay of trial will be only for six months; it will automatically stand vacated after six months. If the stay will be extended, at the first instance it will be extended for three months, and the court will have to give reasons for that. These are the areas where, if we can pay attention, we can achieve results.

What steps do you propose to take for filling vacancies of Judges?

When I say vacancies, I am not talking about vacancies only in High Courts. I am talking of vacancies in subordinate courts as well, where there are only 12,000 judges. Out of that number, roughly 20 per cent is vacant at one point of time or the other. We have to develop a system where vacancies should be filled immediately after they arise.

What should be done to ensure judicial accountability? And your views on the proposed Bill to set up a National Judicial Council?

We are accountable to the Constitution and the oath we take. I don't know whether the Chief Justice of India, R.C. Lahoti, has sent his comments on the Bill or not. My personal view is that such legislation is not necessary. But whether to pass a legislation or not is the province not of the court but of Parliament. Parliament, which is the sole authority, has the prerogative to pass such a law. It will be entirely for law-makers to accept our suggestion or not.

In the United States, a lot of debate takes place whenever a judge is to be appointed. Should such a system be contemplated for our country?

Every country has its own system of appointing judges. Our Constitution has contemplated a system for making judicial appointments. The most learned men have drafted our Constitution. We have got it for the last 55 years. It has worked well and I don't think that we need to adopt the U.S. system. I don't think that anybody has talked about the U.S. system, rightly so. But Parliament can bring in any legislation. Parliament can amend the Constitution and if they do so and ask for our opinion, we will give it.

In the name of judicial activism, is the higher judiciary encroaching on the domain of Parliament or the Legislatures?

I don't think that there is any such criticism in this manner. The Supreme Court has to do its duty to interpret the law and the Constitution. When there is a gap, when there is no law, till such time legislation is made, courts have given certain directions. This is not legislating. Wherever there is lack of implementation of a law, of course the judiciary cannot fold its hands; it's the duty of the court to enforce the law. `Judicial activism' or `judicial terrorism' is a misnomer. Even after the court invalidates an enactment, it is well within the province of Parliament to pass a fresh law removing the illegality.

What steps do you propose to take to remove corruption in the judiciary? There is a general perception that the judiciary is very lenient about this.

Whether it is corruption within the judiciary or outside the judiciary, one has to take all necessary measures to remove corruption. Wherever little corruption is there, as far as the subordinate judiciary is concerned, we see every day the compulsory retirement of judicial officers. As far as the higher judiciary is concerned, it is very, very minimal. Tell me, is there any other organisation where, on account of peer pressure, a High Court judge resigns? It is only happening in the judiciary. Wherever — whether it is in the judiciary or at any other level — I think for the benefit of the nation everybody must fight it.

What is your view on the death penalty?

Today, the Indian Penal Code provides for death penalty in the rarest of rare cases. I believe that as long as it's there in the IPC, whatever may be my personal feelings they must be kept out. If a case comes under the category of cases where the death penalty has to be inflicted, it must be inflicted. I don't want to bring in my personal views about the death penalty and say that, despite the legal provision and despite the provision of IPC, I will not award it. If you ask my personal opinion, not as a Judge of the Supreme Court but as a citizen of this country, I will say my personal opinion is that we should not have the death penalty and that we can have a life sentence for entire life. This is because it is difficult for anyone to award something that cannot be restored. At the same time, there are strong viewpoints. In the whole of Europe, it [capital punishment] is not there. In many of the States in the U.S., it is not there. In many other countries, it is not there. It is a socio-political question and ultimately whether it is to be continued or not is a decision to be taken by the Indian Parliament.

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