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The Rediff Interview/ Justice A M Ahmadi

'If judicial independence and impartiality collapses for some reason or the other, then the whole edifice of justice will start wobbling'

The judiciary's slow slide into controversy touched a fresh point during the appointment of the present Chief Justice of India, Justice M M Punchhi, when a section of lawyers rose against him. Leading the charge was none less than criminal lawyer Ram Jethmalani, soon to become India's urban development minister.

That controversy brought to the fore the question of who will judge the judges. Judicial appointments, thus, were felt by the government to be a grey area, which sought to take away some powers from the Chief Justice. Add to this, the long years of litigation that most Indians have to endure, making the grievance redressal mechanism a nightmare, and the picture that emerges is not a comforting one.

Former Chief Justice of India, Justice A M Ahmadi, who was in Bombay on Monday, took time off to speak to Syed Firdaus Ashraf on the crisis of confidence confronting the Indian judiciary.

Many people are seriously concerned about the backlog of cases in the courts. Is there a way to overcome this problem, and ensure that justice is done in the quickest possible time, and not after 10 and 20 years as it happens now? How do we overcome this problem?

The only way to overcome this backlog is by effective court management. Very serious thought must be given to what I have always called 'scientific court management system'. So you have to evolve that. It is the management aspect in which we have to look at the system properly. Now, with technology and computers available, I am sure we can have proper, scientific management.

Another matter of controversy has been the Chief Justice's power to appoint judges. The Presidential ordinance of 1998 has brought this matter under renewed scrutiny. What is your personal opinion on this matter?

Now, the matter is sub judice since a Presidential reference has been made and some writ petitions are also pending. So, it won't be proper for me to comment on the matter. [The Supreme Court on Tuesday made it clear that it would neither reconsider nor review the 1993 judgment which gave primacy to the recommendations of the Chief Justice of India in the appointment and transfer of high judiciary, while dealing with the presidential reference in the matter.]

But, by and large, I think, we have over a period of time tinkered with the appointment system of judges quite often. And it is with the periodical tinkering with the appointment system of the Constitution that certain difficulties have cropped up. I have felt that this Presidential reference is also very truncated and limited. And therefore, I have an opinion that the entire gamut of the matter of appointments should have been kept open in front of the courts.

Do you believe that the power to appoint judges must be vested in the Chief Justice alone?

I don't think in a democracy one single person can have all the power. Therefore, it would not be correct to say that absolute power should be with the Chief Justice alone.

Your successor, former Chief Justice J S Verma recently advocated bringing in high court and Supreme Court judges under the purview of a new law like the Prevention of Corruption Act, to make them more accountable. Do you think there is an immediate need for such a law?

You see, I think the present law also does not exempt judges from prosecution. The question is, whether there is evidence available with the prosecution to prosecute the judge. And if that is so, the permission of the Chief Justice to prosecute would perhaps become necessary. The same provision is also required for a government servant. If a government servant is to be prosecuted, the sanction of the head of the department is necessary. So I think the existing law is sufficient to bring the judges under scrutiny.

There is no law which grants total immunity from prosecution to judges. But at the same time, it is also a safeguard for judges because they must feel free to function and not feel threatened. If X, Y and Z file frivolous applications the whole independent concept of judiciary will suffer. So, it has to be ensured that the judges are fairly protected so that litigation does not start against them.

But do you think a new law is needed?

I think the existing law is sufficient. It could be used against a judge if evidence of corruption is found.

Do you agree with Justice Verma's assertions that neither the impeachment process nor an internal judicial machinery is workable in the case of high court and Supreme Court judges? Do you think Chief Justices are unwilling to order inquiries against their brother judges even in cases where something is clearly wrong?

You see, we must all remember one thing, that when the impeachment process was introduced, we had taken it from the American system. Everybody knew when the Constitution was formed that the impeachment process is a cumbersome one. It is not an easy-run process. Therefore, when it was known that it is a cumbersome process, it was deliberately kept to ensure judicial independence. That is what is important and paramount. If judicial independence and impartiality collapses for some reason or the other, then the whole edifice of justice will start wobbling. So that is why it has been deliberately made cumbersome.

It is not that the Constitution-makers didn't know they were making a cumbersome process. They were all aware and they were making it deliberately cumbersome in the sense that the judges will feel secure that they will not be removed easily by some lapse here and there. It should be something serious for the judges to go before the impeachment process.

During the present Chief Justice M M Punchhi's appointment, Ram Jethmalani, along with other lawyers, had levelled allegations against the honourable judge. In such situations, the question arises as to who will judge the judges. What is the answer to this?

Ultimately, you see, the question is, what is the nature of the allegation. And then if X has made an allegation, he can't become the judge of that allegation, whoever he maybe. It must therefore be left to somebody else. Then it is the job of the President of India to appoint him. And that is the only way. Because the mistrust is something, vaham ki koi dawa nahin hai (there is no cure for mistrust). If there is some material on which doubts can be raised, then you should avoid the appointment. Because you cannot take chance in these things.

Do you think when allegations are made against the Chief Justice, it sends a wrong message to the common man whose last hope is the judiciary?

Let us not take names because it is not very correct to go into names. I belong to that institution and will always respect the office of the Chief Justice whoever may occupy it. But in my opinion, if I make an allegation, I have done my duty of pointing it out. Then it is for those who have to appoint, to look into it. Whether they accept something valid or not must be left to their judgement. I can't say what I say must happen.

Time and time again you have stressed on the deterioration of values in the legal profession, and the quality of legal education in the country. Why do you believe ethical and legal standards have fallen among lawyers? What factors would you attribute for this?

You see, over a period of time, law colleges have mushroomed all over the country. Several of them are not even properly equipped to teach law as there is no good staff in many colleges. And the quality of students which you produce is not good at law colleges. So, I feel it is very essential to improve the quality of education.

When you joined the profession, the monetary aspect of the profession was secondary to social service. Why do you think the system has changed now? How did the materialistic element creep into the legal system?

Materialism has crept in everywhere. Has not materialism crept into journalism? And that is why it has crept into this profession also.

Do you think Indians have become a very litigious people, taking even minor matters to court? Do you think we need to promote legal redressal mechanisms like Lok Adalats to take the pressure off courts?

That is true. I think there are certain matters which can be settled by talks between the two parties. These things should not be brought into the court.

Are you satisfied with the quality of our judges, in the lower courts, the higher courts, and in the Supreme Court?

There is always room for improvement and for a better quality of judicial system.

About the Babri Masjid case, I would like to ask one thing. Do you think the courts can decide on matters of faith, considering that this case has been pending before the courts for nearly 50 years? And especially with the BJP saying that they will pass an ordinance in the matter if the court verdict goes against them?

You see, any country which is governed the by rule of law must decide controversies on the basis of existing laws. Somebody says he does not believe in the rule of law, that means he does not believe in the existing rule of law of the country. And if that starts happening with every individual, then the whole process of law collapses.

We are a society based on the rule of law. We are based on the Constitution and statutory laws. If somebody says if a decision goes against me I will brand it as unacceptable to me, then there is a collapse of the rule of law.

But how can courts decide on a matter of faith?

There is no question of deciding on a matter of faith. It is a question whether this particular land belongs to X, Y or Z. It's a question of proprietary rights. If it's a question of proprietary rights, the proprietary right does not disappear. If I say that I have some faith here or there and it is a disputed area, then one way is that the central government acquires the land, so it also by the process of law. And it is another thing, that the acquisition was bad, and as an acquisition it did not succeed. But still it is the process of law. Otherwise, if the process of law collapses, you will have the law of the jungle.

The Rediff Interviews