The Powerful Get Away

The complete transcript of BBC Hindi special programme AapkiBaat BBC Ke Saath with former chief justice of India and former chairperson ofthe NHRC, Justice J.S. Verma.

Nagendar Sharma: Is it fair to say that the Indian judicial system getting politicised?

Justice J S Verma: I think there is a perception that respectfor judiciary has gone down in the eyes of the common man; the confidence of thepublic in the judiciary is not the same as used to be many years back. This perception of erosion of public trust in the judiciary isprimarily based on two factors -- firstly, the delay in deciding cases, and,secondly, in some cases the image of the judges, especially in the higher judiciary, hasnot helped matters.

BBC listener from Dehra Dun: Sinceour country became independent, the curse of riots especially communal riots, hascontinued unchallenged. Is it not a joke on the judiciary that if you commit asingle murder you could face death penalty, but in these cases of hundredsand thousands of murders, nothing happens?

Justice J.S. Verma: It is an irony, but unfortunately this perceptiontoday is getting stronger: bigger the crime you commit, higher the chances ofescaping punishment. For this, I do not blame the judicial process,but I think those running this important arm of democracy are responsible. First of all, rioters are notarrested; if they are, the investigationsagainst them are not conducted properly; and, the delay in deciding cases strengthensthis feeling that there is no risk in committing bigger crimes. Time has come for makingthe judiciary accountable, and itcould only be done by people’s greater participation in democracy.

Nagendar Sharma: But how can the judiciary be made accountable? Afterall, if there isany arm of Indian democratic system which lacks accountability, it is thejudiciary.

Justice J.S. Verma:  Previously we had ajudicial system which was working, and people had full faith and confidence inthe judiciary. Taking into account recent disturbing trends, it is high time weenforced judicial accountability, but it should be done by the judiciaryitself. Any external effort would be dangerous for the judiciary’s independence.The Supreme Court had passed three unanimous resolutions in this regard on 7^thMay, 1997, and they were sent to the then Prime Minister on 1^st Dec, 1997,for making a law on judicial accountability based on these resolutions. Unfortunately it has not happened so far. Till thetime a law is made, it wouldnot be binding to enforce judicial accountability.

Nagendar Sharma: But how could accountability be ensured by the judiciary foritself?

Justice J.S. Verma: Of course it can be. Even now, the existingprocedure is impeachment, even in that it is the committee of the judges whichlooks into the cause and reasons for impeachment. Wherever the motion is movedfor example say Rajya Sabha, if the Deputy Chirperson asks for the inquiry, itis handed over to a committee of judges only !   

Nagendar Sharma: But in the eye of common man, the respect for judiciary hasgone down, from the days of judges like V R Krishna Iyer, today people don’thave the same confidence in judges’ names ?

Justice J.S. Verma: It is a matter of grave concern, and to be honest Icannot say for sure that such an impression on respect for the judiciary iswrong. The only answer for restoration of this respect is ensuringaccountability. At the moment, except impeachment there is no other provision.And, frankly, impeachment does not work -- it is clear from the Ramaswamy case.Therefore, to ensure judicial accountability, a law would have to be made, and till a law is there, it would not be binding to follow theseresolutions.  

There should be a committee headed by the Chief Justice, with othersenior judges as members, to look into allegations of any nature against judges.And if they find a fit case for inquiry, it should be ordered to decideappropriate action. This would bring about transparency in the judicial system, and onthe other hand, would deter baseless complaints against the judges.

By my experience, I can say for sure that the number of those whoare out to diminish the respect of judiciary is very less, but spare a thoughtfor  thehonest judges for a moment. If an allegation is baseless, there is no waythat the judge in question, howsoever honest he may be, has any way of restoringhis stature back, as it is not possible to file defamation cases everyday.  

BBC listener from Jodhpur: My question is based on thecommittees and commissions formed by various governments to employ retiredjudges. When already a commission was probing Godhra incident and the riots thatfollowed, don’t you think that committees such as that headed by  JusticeU.C. Banerjee arelowering the judiciary’s respect?

Justice J.S. Verma: Without taking any specific names, let us lookat the issue in its totality. My view is that any such commissions andcommittees must actquickly and submit their reports as soon as possible, as any delay defeats thevery purpose of setting up the commissions or committees. When I was a sittingjudge of the Supreme Court, I was entrusted the job to probe Rajiv Gandhiassassination, and I was able to submit the report within six months.  Inmy view, no judicial commission or committee should be in the eye of suspicion. 

Nagendar Sharma: Coming back to the question of riots, whether we look at1984 anti-Sikh riots or those which followed the Babri Masjid demolition or theGujarat riots, is it not a matter of shame that culprits get away without anypunishment?

Justice J.S. Verma: I do not hold this sort of impression wrong, nor amI angry with the common people who have become cynical and make such comments. All law enforcing arms, including the judiciary, have to be held accountablefor this. I sincerely hope that the judges of higher judiciary, especially ofthe Supreme Court and the High Courts, would work fast to prove this impressionwrong. I think the strict action taken by the Supreme Court in Gujaratriots cases needs to be followed by High Courts to maintain the trust of thepeople of India in this important pillar of democracy.

BBC listener from Delhi: When law is equal for all, then whydo we see serious differences in high profile cases such as Best Bakery, KanchiShankaracharya and so on?  Apart from confusion it leads to tremendous delay...

Justice J.S. Verma: The Indian legal system is such where you havea hierarchy of courts -- if any party is aggrieved they have a right to go inappeal to the next higher court. The essence of any legal system is that justiceshould not only be done but be seen to be done. It is a well known and acceptedprinciple of jurisprudence that appeals should be allowed. It could also belooked at as two honest  people reaching a different legal conclusion.

BBC listener from Patiala: Can anything be done to cut downthe delays in decisions of cases?

Justice J.S. Verma: I think that this is the exact area where themaximum attention needs to be given, while being extremely careful, because ifthe number of judges is suddenly increased, then there is a danger of qualitybeing compromised. Look at the root cause of the problem, the pendency rate isalarmingly higher in High Courts and the subordinate courts.

My solution would be to appoint retired High Court and sessioncourt judges as ad hoc judges, those who have had a good track record ofspeedy disposal of cases, to clear the backlog cases, whilethe current cases could continue normally to be heard by the other judges.

BBC listener from Gwalior : Sir, but what about cases such as BabriMasjid demolition and Best Bakery, where witnesses change their statements manytimes. Can such cases ever be decided?

Justice J.S. Verma: The only solution is speedy hearing of thecases. Once the hearing is quick, all things such as influencing of witnessesand so forth would be obviated. This would require active cooperation from all arms oflaw enforcing agencies and in this I would include the Bar, the lawyers, also.Similarly, the prosecution needs to put its act together. If you recall, whilehearing the Hawala case, I had recommended autonomy for investigating agenciessuch as the CBI...

Nagendar Sharma: But there is political pressure on judiciary, as you hadalso hinted while hearing the Jain Hawala case?

Justice J.S. Verma: I can speak for myself. I have been a judge inthe Supreme Court and High Courts for 26 years. I was a judge before emergency,during emergency and after that also. I never experienced any pressure. Attemptswere made during the Jain Hawala case, my colleagues on the bench, JusticeBharucha and Justice Sen mentioned it to me, so I said it in the open court, andnobody tried anything after that.

Nagendar Sharma: There is a strong perception that law is only forthe commonman, that it does not apply to the rich and powerful.

Justice J.S. Verma: It is no doubt unfortunate that those who havepower -- money or position -- often get away despite havingcommitted wrongs as first of all they cannot be arrested and if they are nabbed,then cases against them are not registered properly, and, if at all cases areregistered, the investigation is not carried out and finally the delay inhearing of cases ensures that conviction of the powerful does not takeplace.

There is no doubt that such a situation is an irony, but all of usare responsible for this -- the judiciary, when the cases reach the courts, andearlier the investigating and prosecuting machinery. More than the system,those who are running it, are responsible for this.

Therefore it important for the people of the country to completelyensure that they do not elect criminals and hand over power to them. It is inthe interest of the criminals that the entire law enforcing machinery does notwork properly. Why would they want cases against them to be tried? That is whypeople’s participation in democracy would have to increase to check this.