'The Prosecution Was Helping The Accused'

The full transcript of the BBC Hindi special programme Aapki Baat BBC Ke Saath -- with JusticeV.N. Khare, who retired as the Chief Justice of India last India. 

Nagendar Sharma:  The judiciary in India having to work as executive also. Is it is healthy signfor democracy ?

Justice Khare: The judiciary does not work in the place of the executive, but at times ithas been noted that the state does not fulfil its statutory and constitutional obligation. It is in thesesituations that the judiciary cautions them to follow their raj dharma; and when this also does not work, thenthe judiciary has to issue directions. Therefore it is not adversarial litigation, it is in public interest that the judiciaryacts; itis not directed against any individual, it is for the citizens of this country.

BBC listener from Bareily: There is no doubt that the burden on courts throughout thecountry is immense. Political parties' disputes reach the courts. There was a time when the Supreme Courtdecisions were accepted with grace, but not anymore. Take the decision to ban strikes to which there was opposition.Is the honour of Supreme Court in danger?

Justice Khare: No there is no danger to the honour of the judiciary. I see a bright future forthe judicial system, at least for the Supreme Court, in the near future. So far as the judiciary is concerned, itis doing its duty within its jurisdiction.

Nagendar Sharma: But what about the immense burden on the courts?

Justice Khare: Yes it is absolutely right that the courts in India are overburdened. To point afact, there are 13.5 judges, not even 14 judges, per 10 lakh population. This speaks for itself--there is anacute shortage of judges, and the figure I am giving you includes all from a magistrate to a chief justice.Compare this with the Western countries, where you have 135-150 judges per 10 lakh population.

I have raised this matter with the centre as well as with the state governments. But the stategovernments said they do not have adequate funds for this. Then, I asked the centre to create an all IndiaJudicial Services, the financial burden for which would have to be borne by the centre. If speedy disposal ofcases is to be done, then there would have to be a real increase in the number of judges.

BBC listener from Jaipur: Long pendency in courts is one problem. Other, and the major one, is thecorruption in judiciary. How can those be tackled?

Justice Khare: You are right, some cases of corruption have been noticed in the subordinatejudiciary, which has adversely  affected this institution and has lowered the prestige of the courts. I have suggested that the Supreme Court should be given power of superintendence, so that itcould step in the cases where the High Courts have failed in taking action against the subordinate courts tocheck corruption.

Nagendar Sharma: Sir this gives rise to the question of accountability of the judiciary.  Are judgesaccountable -- and to whom?

Justice Khare: A judge is like Ceaser’s wife who not has to be above suspicion but also appear tobe so. Myview is judges are accountable to the oath they swear, but then judges are also fallible as nobody isinfallible. Therefore there has to be somebody who could judge the judges.  Presently, according to our constitution, there is just a provision of impeachment to remove theerring and the guilty judges, but then this is an era of coalition and impeachments do not look possible. Mysuggestion is the Supreme Court must be empowered to take action against the erring judges.

BBC listener from South Korea: Justice Khare, are you satisfied with the process of appointmentof judges in India?

Justice Khare: I agree with the present process of appointments of judges, I find it right. Myview is that the executive should have no role in the appointment of judges, and the primacy of theappointment should be with the Supreme Court. If the executive wants to put forth its view, then the AttorneyGeneral, who is appointed by the government, could be a part of the collegium of the Supreme Court to be apart of the decision making process.

Nagendar Sharma: But why not have a National Judidical Commision for such judicial appointments?

Justice Khare: Well the suggestions that came for the formation of such a commission showed thatthe majority of people were to be from the Executive and therefore I did not agree with this.

BBC listener from Gujarat: My question is regarding the clash between the Supreme Court and theGujarat government on the Best Bakery case. I want to know whether the Supreme Court is above any mistake. TheCourt passed adverse comments on a government elected by a two-thirds majority, and these comments are beingmisused the world over. Were you influenced by the propaganda from the media and opposition parties?

Justice Khare: This is absolutely false. The Supreme Court directive was based on evidenceand facts, that were brought before it, and we did not act under any pressure or influence. What myself and mybrother judges saw in evidence was the sole basis for our decision.

Nagendar Sharma: Justice Khare, what went across your mind when the pleas of Gujarat riots victimsdemanding  justice and security were placed before you?

Justice Khare: It was so revolting. My conscience shook me when it was brought to my noticethat the state government which was supposed to provide protection to the victims did not follow its dharma.Now, with what has been placed before the Supreme Court, it is clear that the prosecution, instead ofprosecuting the accused, was helping them. Raj dharma says the accused must be prosecuted, but in Gujarat theprosecution was instead helping the accused.                             

BBC listener from Gujarat : But the Supreme Court should have also taken into account that itsobservations have damaged the state. Do you still think that the Court’s comments were justifiable in theBest Bakery case ?

Justice Khare: The Gujarat government must now take a lesson from the Supreme Court decision ofshifting the Best Bakery case out of Gujarat and ordering a retrial. It should now ensure a proper prosecutionof the accused in more than 400 other riots cases pending in the different courts of the state. The SupremeCourt has given a guideline by this case and the state government now should fufil its duty.

Nagendar Sharma: Justice Khare, the Gujarat government complaint is that its view was not heard properly by theapex court...

Justice Khare: All submissions of the state government counsel were heard properly--its writtenreply was studied carefully. Moreover, the state Inspector General of Police and the Chief Secretary weresummoned before the court. I did myself speak to them directly in the Court. These top police andadministrative officials of the state admitted that the witnesses had been influenced by the accused. Is thereanything else left to say?

BBC listener from UP: Sir, was there any other way of  dealing with the Best Bakery case, sothat the direct intervention of the Supreme  Court could have been avoided?

Justice Khare: Had anyone else acted, why would we have intervened? The precise point is that since the state did not fulfil its duty, the Supreme Court had to stepin. Had the state government acted there would have been no need for any intervention. A new direction has been laid by the Supreme Court after thiscase that n future if there is acase in which the prosecution has been faulty, partial and unfair, then there would be a re-prosecution,re-investigation and a re-trial. This is clear now. 

BBC listener from Punjab: The Gujarat Chief Minister has been angry at the Supreme Courtcomments and has reacted. What do you say?

Justice Khare: We live in a democracy and everybody has a right to speak out their views. He hassaid what he wanted, it is his viewpoint. What should I say?

Nagendar Sharma: But Mr Modi says that the retired Chief Justice of the Supreme Court should differentiatebetween right and wrong...

Justice Khare: It is his viewpoint and I have only to say what he has said is wrong.

Nagendar Sharma: Justice Khare, this is a case of Gujarat riots, but in India there has been little or nopunishment at all to the riot cases accused at large, especially with thousands of innocents killed in riotsin India in general.

Justice Khare: It is mainly because there is a lack of proper investigation, the prosecutiondoes not do its duty in a proper manner and the trial in a session court does not begin till the time thewitnesses are won over by the accused... This was the reason why I have said in the Gujarat riots cases thatat least give propersecurity to the witnesses and the victims so that they are able to speak.

Nagendar Sharma: What could be done to improve the conviction rate of riots cases?

Justice Khare: I have given some directions to the centre, which is considering them. Abeginning has been made from Gujarat, where I have ordered that all victims and witnesses be given propersecurity so that they do not turn hostile. Any individual would like to live. Once his/her life is assured, then only wouldthey go to any court for giving evidence. People with spouses and children cannot be expected to stand incourt and give evidence when they know this would endanger their own lives and that of their families aswell. We have also asked the government that in cases of offences under the federal laws, the centremust ensure to prosecute the accused threatening the witnesses and victims, and in cases of breach of statelaws, the state governments must act.

BBC listener from Japan: Why is justice in India judge specific and is based on theinterpretation of law by a particular judge? Look at the Patna High Court decision on barring undertrials fromcontesting elections. Isn’t it a case of individual interpretation and is it fair?

Justice Khare: What happens is that decision making varies from individual to individual,and a point of view can be different at times. The Supreme Court put a lid on the entire controversy by rulingthat since the electoral process has begun it is not the right time to discuss all this. Therefore a judicialprocess is clearly followed and no arbitrariness is allowed. Viewpoints can differ !

BBC listener from Patiala: Sir, many scandals have been brought to light involving the judges ofPunjab and Haryana High Court, including the present one. Does this not show that the in-house mechanism torectify the judiciary has failed ?

Justice Khare: It was the in-house mechanism, during my tenure which saw the resignation ofjudges, from Rajasthan and Delhi High Courts, who were found at fault. Since I could not find proper evidencein the case involving judges of Karnataka High Court, I could not take action.   Though I am retired now,but I can say with surety that if evidence is there in Punjab & Haryana High Court, action would be taken.When judges of your High Court went on strike, I called them and told them they had lowered the dignity of theCourt. They accepted it and resumed work.

Nagendar Sharma: Justice Khare, but judges of three High Courts found involved in corrupt practicesis a dangerous sign. Why not have a proper mechanism for rectification?

Justice Khare: Absolutely there has to be, beyond doubt. The framers of the Constitution did notwant any power of superintendence over the High Courts, as they did not want interference with theindependence of the judiciary. That is why they did not give any such power to the Supreme Court to judge thejudges.

I say today that time has come for a change, as things have deteriorated over the past 50 years.Now we require that a collegium of four senior judges of the Supreme Court under the chairmanship of the ChiefJustice, be given the power to keep a watch over the judiciary and take appropriate action against the erringjudges, as impeachment of every erring judge is not possible.