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The Rediff Interview/Fali Nariman

August 03, 2004

Fali Nariman pondered over the issue for a year before introducing The Judicial Statistics Bill, 2004 in the Rajya Sabha as a private member's bill.

Nariman -- one of India's leading experts on the Constitution -- supports activism in the judiciary and told Chief Correspondent Onkar Singh that the judiciary should be accountable.

You are of the opinion that there is need to make the Indian judiciary accountable.

Every organ of the government -- the government being the largest part of the term -- or State has some accountability to the people of India, especially under the Constitution, which begins with the phrase 'We the people.'

So any information that is required with regard to how Parliament works, how the executive works, particularly when we have the Freedom of Information Act, the people must know.

We cannot have the judicial wing of the State wrapped up in its own black gown. There must be an element of disclosure.

What makes you feel that the judiciary is not accountable?

The Indian judiciary has to be overactive. I like judicial activism.

When statistics are sought for by the government from the courts in considering whether the strength of the judges in a particular state requires to be improved or reduced, the government must have adequate information.

The judiciary is one of the important organs of the State. Therefore, the government must know how many cases are there and how many are in the pipeline.

It takes time to take the cases to their logical conclusion.

Litigation is not like instant tea or coffee... that you go to the court one day and come out with the result the next day. No, it does not happen that way.

Litigation is a slow process. It has to be a slow process.

We have a three-tier system: from the lower courts to the high courts and from the high courts to the Supreme Court, a large number of errors get corrected. It takes time.

Therefore the government, in consultation with the judiciary, [should decide] as to what should be the number of judges in a particular court or high court or in a particular state or in a particular district.

How [do] judges work? In my opinion they are extremely hard-worked. But there are places where judges do not work so hard, where people do not turn up. Some of them turn up at 12 and go away at four. These are the matters in which the public must have a say.

How do you think this can be corrected?

The bill that is pending for consideration is known as The Judicial Statistics Bill, 2004. It provides for the constitution of a judicial statistical authority -- something that has never been done before -- which is empowered by the State to collect and publish judicial statistics concerning all courts in the country, including the Supreme Court of India.

This will be the first step. But the next step will be -- just as the chief justice of the USA presents to the US Congress (the House of Representatives and the Senate) the state of the judiciary -- a similar statement should come from our future chief justices.

Former Chief Justices of India express their concern about the number of pending cases, but do not often say anything about it while in office. Why?

You are right. We can short-circuit any unnecessary complaints by setting a judicial statistical authority. The people must know what is happening, if something adverse is happening to the Indian judicial system. How things can be speeded up and how best they can be speeded up. Judges should get involved in this process.

How does one make the judiciary more transparent?

That again is a question of adopting the correct methodology. The people must know how their complaints are dealt with. There are set procedures in place wherein a person can complain to the chief justice of a high court or the Chief Justice of the Supreme Court.

The person concerned must get feedback within a limited period of time after the complaint had been inquired into. A decision must be given on his complaint.

This happens in the judicial council of the United States, which comprises all the chief justices of all the federal court of the country. This is presided over by the chief justice of the US supreme court. They sit and decide on the allegations about the conduct of fellow judges.

Most of the complaints are frivolous in nature, but there should be a forum for the ventilation of people's concerns.

Does your bill address the question of judges going on strike?

No, it does not.

What happened in the Punjab and Haryana high court, where a large number of judges went on strike, must have been done under extreme pressure.

I personally believe judges should never go on strike. If they too start doing this then there would be no end to it.

The judiciary is like the army... [what if] a general says he is sorry he is not going to the front for personal reasons. A general or a soldier on strike is unacceptable.

We have situations where the judiciary and the executive have been on a collision course. Does your bill have something to say on that?

We will shortly have an authoritative pronouncement on this aspect. The speaker of the Tamil Nadu assembly took action against newspapers and reporters for publishing articles against him for breach of privilege.

The Supreme Court is dealing with the matter and we shall shortly have a pronouncement on it.

The idea is not to have a confrontation, but to resolve the matter. We should have the spirit of accommodation.

Both the judiciary as well as the executive have some difficulties and they should resolve their problems through mutual accommodation.

What about the river water disputes?

They should be decided by the Supreme Court, as it happens in the United States, and not by the executive, which thinks setting up tribunals is the best course of solving the problems of water sharing between two neighbouring states.

Under [Article] 131 [of the Constitution], all contentious issues between the states should go to the Supreme Court for final disposal.

What goes to the tribunals is neither resolved effectively nor finally.

Does judicial activism amount to the courts taking over the role of the executive?

What do you expect them to do?

If the executive does not act and if the legislature doesn't act, what do you expect from the courts?

Take the Sutlej Yamuna Link Canal. Who is going to adjudicate between the two warring states of Haryana and Punjab?

It is the duty of the Supreme Court to keep the Union together.

You cannot have one state saying we do not accept this or that. You have to live together.

You lose some cases and you win some. If you have lost, you have lost.

Will getting more judges would help?

Getting more judges would help, but what is important is that you should get competent judges in high courts.

If you fill up courts with incompetent people, it will cause more delays.

Competent judges have the capacity to push cases.

Lawyers who have practised for 10, 15 years in high courts should be requested to become judges for two or three years. They can begin their practice later.

Image: Rahil Shaikh

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