March 31, 2020
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'There Were Allegations Of Inaction And Complicity Against The Government'

The former Chief Justice of India and former Chiarman of NHRC on the role of higher judiciary and NHRC in Gujarat in Aap Ki Baat BBC Ke Saath

'There Were Allegations Of Inaction And Complicity Against The Government'
'There Were Allegations Of Inaction And Complicity Against The Government'
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Nagendar Sharma: Has the Indian judiciary failed to do justice with the weak in India ?

Justice J.S. Verma: It has not failed, but for completely succeeding in doing justice with the poor and the needy, a lot needs to be done yet. So to say either that it has failed or has been successful are both extreme positions. I say that a lot has been done, but in the same breath I say that a lot has to be done still.

BBC listener from Jhansi : Justice Verma, after the riots in Gujarat last year, you had visited the state in your capacity as the chief of National Human Rights Commission (NHRC), and you had severely criticised the Narendra Modi govt, and held it responsible for the violence. But later in the elections, that very party was re-elected with a two thirds majority. Given the verdict of the people, don’t you think today that your criticism was unfair and uncalled for?

Justice J.S. Verma: Not at all. These are two totally different things. There may have been different reasons for the voters to have voted in that manner, but what we had said from the NHRC was based on facts, and I think that nobody was in doubt on what we had said. I feel that linking these two issues would not be appropriate.

Nagendar Sharma: Justice Verma, when institutions like the NHRC face criticism from political parties, how do those in such institutions feel ?

Justice J.S. Verma: As human beings it is not liked, but we have been trained as judges and it does not affect our work. The assessment of our work is judged by public opinion, and so far as I felt at that time, those who criticised the NHRC stance were far less than the number of those who felt that we were right.

BBC listener from Mumbai : Sir, a large number of Hindus were killed in Punjab, Kashmir and the North East, nothing was done then, those responsible were not held guilty, why did the NHRC take such a keen interest in Gujarat ?

Justice J.S. Verma: Well, see, we do not look upon the issues as that of Hindus, Muslims, Sikhs or Christians. We in the NHRC see that there should not be a violation of human rights of all human beings. If we notice this or it is brought to our notice, we take appropriate action.

You have compared some states with the situation of Gujarat, here you should keep in mind that in Gujarat, there were allegations of inaction and complicity against the government, in the other regions that you have mentioned, such allegations were not levelled against the governments.

Nagendar Sharma: Justice Verma, you were the Chief Justice of India, and the chairman of NHRC as well, and here the issue is of riots, why is it that those responsible for riots are never convicted, never held guilty, whether be it the 1984 anti Sikh riots or last year’s Gujarat riots?

Justice J.S. Verma: It is really unfortunate, and we have been saying that till the time all the arms of the judiciary - investigation, prosecution and the entire trial process - work effectively and properly - this would continue. What happens is that till the time such cases reach the court of law, there are lapses in investigation and prosecution, and the court has to decide on the basis of facts before it. But it is not right to blame any particular arm of the judiciary for this mess. It is the entire judiciary that is responsible for this. We would have to improve the entire system .

Nagendar Sharma: Justice Verma, you had referred to the role of NHRC in Gujarat drawing wide acclaims, but keeping in mind this Gujarat episode, don’t you feel that the NHRC should have some rights, rather than a mere recommendatory or an opinion making role?

Justice J.S. Verma: See, there cannot be two Supreme Courts in this country, it would be one only. There should and has to be a difference between the Court and the Commission. When I was the chairman of the NHRC, I had to repeatedly say that now I am not the chief justice of the Supreme Court. So far as the ambit of the NHRC is concerned, I stress that this commission has a role which is complimentary to that of the Supreme Court. Both these institutions would have to work together, because there are some steps which the court cannot take - for example, monitoring, investigation -

Had I been the Chief Justice during Gujarat riots, I could not have gone there in the camps to have a first hand account of the situation. But as the chairman of the commission, I was able to do that. Yes when the recommendations of the commission are not accepted, then the solution is to seek directions of the court.

Therefore I feel that this set-up is jurisprudentially correct, and there is no conflict of jurisdiction. We have to understand the complimentarity. When I was in the Supreme Court, I sent many matters to the NHRC, for example I sent the case of Orissa starvation deaths. The court has no better instrument for investigation than the NHRC, to find out the facts, and this facility should be utilised, but complimentarity has to be maintained.

BBC listener from Samastipur : For people like Sanjay Dutt, Veerappan, Dawood Ibrahim, Laloo Yadav, Salman Khan George Fernandes etc., the talk of judicial process is a joke. Either they cannot be brought within the ambit of the law, and if they are, they are released easily. What do you have to say about this ?

Justice J.S. Verma: Your question is absolutely right, but as I have said - all arms of the judiciary would have to work together and effectively for proper results.

It is unfortunate, that the judiciary has not been able to work as effectively as it should have when action is to be taken against people sitting in important positions or those who have some other powers. There is scope for improvement, and there should be improvement in this sphere.

Nagendar Sharma: Mr Verma, is it also due to lack of accountability in the higher judiciary that such lapses take place? Whom are the judges of High Courts and the Supreme Court accountable to?

Justice J.S. Verma: When the constitution of our country came into existence, it was agreed that the higher judiciary - High Courts and the Supreme Court of the country would be accountable to themselves and they would not require any observation from outside. But I have always felt, even when I used to sit as a judge, that the time has come for an effective mechanism to enforce accountability at the highest level, in the high courts and the Supreme Court .

But what would have to be kept in mind is that this is not misused. I say this because majority of what is said about the courts is not factual, but if there is something that is factual, then there should be mechanism for accountability. See the courts are held responsible for everything, this is not right, if the investigation was not proper, there were lapses in prosecution, what can the court do ?

Take Hawala case for example, despite having been monitored by the Supreme Court, if the CBI did not investigate the case properly and prosecute, what could the court have done? So we have to look at the overall picture.

Nagendar Sharma: Justice Verma , you have mentioned the Hawala case. You were the Chief Justice of the country, when this case was being heard in the Supreme Court, and you had observed that attempts are being made to pressurize the judges? Is there pressure at the top level of judiciary ?

Justice J.S. Verma: See what I had said then, I had told that to several people later also, but it was not projected properly. Since you have asked I am telling you. What I had said was that attempts were made but these were not successful. Why I had said this in the court was to tell those making such attempts, that they please make no further attempts as these would not succeed, and this is what exactly happened, nobody after that tried.

The need to make such a statement in the court arose, because attempts were made to approach my fellow judges on that bench hearing the case, justice Bharucha and justice S C Sen. When they told me this, I told them that being senior and the presiding judge of the bench, it is my duty to protect others. Therefore I said this in the open court, and it served its purpose, I did not have any other information apart from this.

BBC listener from Patna : Instead of concentrating on long pending cases, the judiciary today is trying to interfere in the work of legislature, banning strikes, dictating steps for environmental protection etc., isn’t the judiciary crossing its limits?

Justice J.S. Verma: Well, the Supreme Court has not interfered in any matter which does not include a legal angle. You have raised questions over environment, it is directly linked to human lifer and its rights. The right to life is a guaranteed fundamental right under Art 21 of the constitution. Supreme Court has, under Art 32 , original jurisdiction to interfere. If the life of human beings is involved, how would the Supreme Court not interfere.

BBC listener from Gujarat : People are losing faith in the judiciary, and there are charges of corruption in judiciary as well. Leaders like Jayalalitha have been acquitted, and then the Gujarat riots. How would people have faith in judiciary ?

Justice J.S. Verma: See, every individual should be accountable, and higher the post occupied by an individual, the more accountable he should be. It is expected from those holding high posts that there should be no need for anyone else to enforce accountability on them. But I have felt that in judiciaries apart from the provision of impeachment provided for by the constitution, there should also be some other effective mechanism for enforcing accountability.

Nagendar Sharma: But what would that mechanism be ?

Justice J.S. Verma: As I am saying that for such a mechanism, there could also be a need to amend the constitution. But the mechanism should be such that an inquiry done by the judges, alone should be sufficient to enforce accountability, If the judges’ verdict is guilty, that should be the end.

So far, there was only one case for impeachment and that was of Justice V Ramaswamy. The judges’ verdict was guilty. But then when it came before the parliament, you all know what happened ! it was a political decision, majority of the members abstained and nothing came out .

Therefore an effective and alternative accountability mechanism is required but at the same time, it would have to be ensured, that it is not misused. I am saying this because, majority of the allegations against the judges are wrong, but if any allegation is serious, it should be probed without delay. I am a firm believer in accountability and I feel that in a democracy, judges should be accountable. When I was the Chief Justice, I had written to the Prime Minister of that time, about judicial accountability.

On May 7th, 1997, three resolutions in this regard were passed in my tenure as the Chief Justice. But the follow-up of this is still to be done .

BBC listener from West Bengal : I want to know what was the role of NHRC in Gujarat riots, and what sort of pressure was there from the state as well as Central government in this ?

Justice J.S. Verma: Well, I can assure you that there was no pressure on NHRC, till the time I was the chairman of this Commission till January 18th this year. Even after that I am hopeful that NHRC would not have come under any sort of pressure. I can fully assure you that there is no question of any pressure .

So far as the role of this commission is concerned, I am happy to say that the people, and not me -- but the people of the country and the international community, even the United Nations High Commissioner said that the intervention of the National Human Rights Commission had a positive effect on Gujarat. This was not confined to making an impact on the establishment of Gujarat, but it was helpful even in the opinion formation at the international level and even in changing the opinion of the UN as well.

I think that saying more than this would not be appropriate for me, I have said what I did as the NHRC chief at that critical time.

BBC listener from Muscat (Oman) : What can be done to dispose the long list of pending cases in the Indian courts ?

Justice J.S. Verma: Well, my friend, Supreme Court has already shown the way in this regard. When I came to the Supreme Court in 1989, the number of pending cases was one lakh twenty five thousand. When I retired as the chief Justice in 1998, this number was down to nineteen thousand.

Any matter that used to come, was listed for hearing in two weeks time. It was due to the collective effort of the bar and the bench. There was cooperation from everyone. I say that the pendency rate is down in the Supreme Court now, it can be brought down in the High Courts as well. What is required is that the High Courts should start monitoring work of the lower courts and this problem can be solved. I am hopeful that this problem of pending cases can be overcome.

Nagendar Sharma: Justice Verma, do you think that the judicial appointments in this country are free of political interference or is there is a need and scope for improvement in the want of fairness ?

Justice J.S. Verma: See, I have been a judge of the High Courts and the Supreme Court for 26 years. My experience is that all this depends on the individual concerned.

You can have any system, it is only when an individual’s character is questioned, then the problem arises. There can be a little improvement in the system, but you have to bring people on higher posts, who hold integrity for that post. In my entire career, I never experienced any pressure..


Transcript courtesy, BBC Hindi Radio

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