"We Did Over-Step Sometimes"

AFTER a 33-year stint in the judiciary, A.M. Ahmadi must have had no regrets whatsover when he retired as the chief justice of India on March 21. But he does have a nagging worry about the system, which, he says, has become an 'expediency', and the deteriorating rule of law. "Things have been allowed to drift. And what could have been sorted out with a little imagination now demands Herculean efforts." In the post-Nehru era, the faith the founding fathers placed in parliamentary democracy has been shaken by its manner of functioning.

I interviewed the soft-spoken Ahmadi two days before he retired. He held forth on various subjects, ranging from the appointment of judges, judicial activism and public interest litigation, to the Press and the judgement on Hindutva. Asked about his post-retirement plans, he said he wasn't looking forward to any assignment nor was he eager to go back to hometown Ahmedabad, where he began a career as a judge. Instead, he said he would live somewhere in Delhi, on a monthly pension of Rs 5,000.

Though a man of simple tastes, the poor salary of the bench obviously bothers Ahmadi. "Such are the prospects which deter good lawyers from going to the bench. Those who should be judges do not accept the position because of poor salaries. And those who do not deserve it join the queue," says Ahmadi. He feels that the salary of a judge must be in proportion to his average earnings at the bar. But then he is quick to add that he joined the service because his father told him "it was a call of duty". And wonders how many lawyers would look beyond money and join the bench to give the country a clean, credible judiciary.

On the appointment of judges, Ahmadi does not believe that the answer lies in a Judicial Commission. He says the primacy of the chief justice must be maintained but adds that this does not mean a confrontation with the executive. In other words, both the chief justice and the executive should be unanimous on the choice. "The important point is not how you select but who you select." In the UK, the Lord Chancellor appoints judges, and no one doubts their selection.

Asked why the appointment of three judges to the Supreme Court took so long, he says he had to consult two senior colleagues, as is the procedure. "There were differences. It took time to sort them out. This is bound to happen. All have their own views," he says.

Ahmadi does not play down the role of judicial activism but, as has been his usual stance, talks of caution. Pleased that some people have achieved their objective through the judiciary, he says public interest cases "would have been wholly unnecessary if the issues were fully discussed in Parliament and people were kept informed of developments." He concedes, however, that the phenomenon of judicial activism "in its aggressive role" is a temporary phase—a corrective measure. "There has been some over-stepping. Judges are aware that the non-elected judiciary is neither meant nor equipped to act as a policy-making body."

"Great care must be taken to ensure that while the judges play a participatory role, they do not appear to be entering the arena or give the impression of bias to the opposite party," says Ahmadi. He cited an example of the Kerala High Court which ordered the government to set up a fund to eradicate mosquitoes. "How can a judge get into a situation where we have to keep an account and monitor the funds?"

Ahmadi evaded comment on the judgement to define Hindutva. He has reservations but is reluctant to spell them out. Asked why he did not refer it to the larger bench, he says that there has to be a system and that the chief justice cannot do so on his own. I reminded him of the letter I had written, requesting him to constitute a larger bench to consider the judgement which I thought affected the basic structure of the Constitution and secularism. He says he did not act "for obvious reasons", but adds that in "a recent judgement, the demand for a larger bench has been made".

"It is indeed true that, of late, many issues which can be described as socio-political or religio-political or eco-political are brought to court," says Ahmadi. "Some of them have far-reaching consequences and affect the nation's social fabric. Courts have, while trying to steer clear of areas falling within political thickets, not hesitated to exercise jurisdiction in appropriate cases."

He is unhappy over the backlog in the courts (about 30 lakh cases are pending). But he blames the state for it. The criminal procedure code has been amended to lay down that the government can appoint honorary magistrates, who need not even be lawyers, to hear cases. "I have written to chief ministers to point out the provision, but there is very little progress. They don't seem to be too interested," says Ahmadi. In a decade which has witnessed unprecedented judicial activism, the outgoing chief justice also held forth on the role of the Supreme Court. Ahmadi says that it was established primarily to interpret and be the guardian of the many salutary principles enshrined within the Constitution. Initially, its role was formulated as a constitutional court. It was only later that the framers turned their attention to the appellate jurisdiction of the Supreme Court. According to Ahmadi, in recent years, the court has been so heavily burdened with its appellate functions that its role as a constitutional court has suffered greatly.

During the interview, the only subject that elicited a scathing remark from him was the Press. "It does not check facts and prints lies, which, even when contradicted, are not corrected because it doesn't seem to be interested in facts. There is too much comment in the news itself. There is no overall supervision. Every page has an editor. The newspaper once had a pyramid-like structure with the editor on top, now it is a barrel." When he bid goodbye, he spoke in Urdu as he did many times during the interview. He was a great judge. Perhaps he would have made a great editor too.