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The former Chief Justice of India, Justice V N Khare, is disappointed that the Government of India has failed to evolve a comprehensive education policy despite repeated reminders from the apex court during the course of hearing of innumerable petitions filed before it by various petitioners.
But he disagrees with the comment of Justice R C Lahoti, the present Chief Justice of India, that if the government and members of Parliament continued to talk of confrontation with the highest court of the country then it would be better to wind up the courts.
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"It is not in the hands of the Chief Justice of India to close the courts. Even the Parliament cannot close the courts. Nobody can close the courts," Justice Khare told Senior Associate Editor Onkar Singh in an exclusive interview at his home in Noida, Uttar Pradesh.
Were you surprised when Justice Lahoti said let us wind up the courts?
I do not know what were the reasons of the immediate provocation that called for such comments from the Chief Justice of India. I do not know what he had in mind when he made these observations. But I do not think he really meant what he said.
Can the Chief Justice of India recommend the winding up of courts?
No. It is not in the hands of the Chief Justice of India to close the courts. Even Parliament cannot close the courts. In fact nobody can close the courts. I do not think what he said was actually what he meant.
Was it an expression of anger and helplessness?
I have said I do not know what were the reasons for the provocation for giving such a statement.
What I read in the print media was that some case was to be adjourned relating to a Dalit who had converted to Christianity. It was regarding reservation policy in such case and a petition was before the court. But I do not think that should be the ground for such provocation.
In recent years there have been occasions when the confrontation between the judiciary and the executive has been a matter of concern. The judiciary says that parliamentarians are not serious and criticise the courts and parliamentarians in turn say that law making is their jurisdiction and the courts should keep away?
There has been a clear-cut demarcation of the powers of the Executive and the courts.
What comes under the Executive and what comes under the judiciary is very well defined in the Constitution of India.
So there is no question of a rift between the judiciary and Parliament at all. I do not understand why the occasional outburst.
The judiciary cannot trespass on the powers of Parliament and Parliament in turn cannot trespass on the territory of the judiciary.
The political parties were not happy with regard to the Supreme Court order on unaided professional colleges.
(That) maybe the reason but I think the judgment of the 11-judge Constitutional bench came in for interpretation. This came up for hearing before the special bench of which I was a member. The provision has to be there for the poor, backward and for local needs. It was felt there should be reservation for this set of people.
The 11-judge bench in its ruling had given 11 per cent reservation for Non-Resident Indians to compensate for the reservation for other categories. I think that the present judgment (abolishing the right of reservations in non-aided professional colleges) is not legally sound.
The Government of India is trying to bring in a bill that would regulate admissions to unaided professional colleges. How do you look at this move?
The petitions have been filed in the Supreme Court since 1987 onwards to check the management from making huge profits. Every year some ad hoc arrangement is made. Since then the admissions to medical and other private colleges are being made on the direction of the Supreme Court of India.
We have been telling the government since 1987 to enact the law on this subject. When the matter was brought before me I also directed that Parliament must enact a law on the matter because every year we get petitions.
Unfortunately for the last 25 years nothing has happened. Now the time has come that the government must act.
Do you feel that the judgment of the 11-judge bench needs to be reviewed now?
Let us first see what law the government makes.
The 11-judge bench has already said there should be provision for the admission of the poor and deprived sections in professional unaided colleges.
The directive of the 11-judge bench is very clear on this issue. Every year admissions to these colleges are made on the directive of the Court. Sometimes the formula of 60-40 is resorted to and sometimes it comes to 50-50.
It is too late in the day and time has come for the government to do something. They have to specify the quota for reservation for the poorer sections of society.
So there is a case for review?
It may be. But if they come up with a law then the need for a review may not arise at all.
The other options are that the nine-judge bench should review the order of the seven-judge bench. Or a 13-judge bench reviews the order of the 11-judge order.
Actually there is no substantive education policy in the country.
The ad hoc arrangement should go and the government must come up with a comprehensive policy on education.
There should be some provision for the poor to have good education otherwise they cannot afford it because the fee is so high that it is beyond their reach.
I would say in every college there should be provision for admission of those who are not privileged enough to afford high fee structure. They cannot send their children to public schools and primary schools run by municipal corporations all over the country have no education at all.
Has the present order of the Court created a situation for a confrontation between the judiciary and Parliament?
They should enact the law, and once this happens the difficult situation would automatically go.
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