Above: Justice Bashir Ahmed Khan
JUSTICE BASHIR AHMED KHAN, fondly called “Badshah Khan” in legal circles and reckoned as a credible voice on affairs in the judiciary, has held several key positions in his decades-long career in law and public life. He has served in various High Courts and was Chief Justice of the J&K High Court, Acting Chief Justice of the Delhi High Court and Administrative Judge of the Madhya Pradesh High Court’s Indore bench. He has also been the head or a prominent activist member of various law bodies and forums including being president of SAARC Law India, being in the Executive Committee of the National Judicial Academy and the governing body of the Indian Law Institute, etc. He is currently chief of the J&K State Accountability Commission, an anti-graft body akin to the Lokpal. Justice Khan spoke to India Legal’s editor INDERJIT BADHWAR in an exclusive interview. Excerpts:
One of India’s most admired figures, former Chief Justice TS Thakur, wept publicly in 2016 over the issue of increasing judicial vacancies. What did you make of that?
It is no secret that our judicial system is plagued by so many ailments. There are issues of faulty recruitments, inadequate infrastructure, judicial delays and expense. This includes redundant judicial training with the neglected National Judicial Academy, a white elephant with no faculty, syllabus or programmes, holding periodical sessions in the name of training judges but serving like any other ill-equipped law college than a place of learning to equip judges with the latest methods and skills in dispute resolution. Then there is the commercialisation of the legal profession, government apathy and rivalry towards the judiciary, lack of access to the system by the common man, the judiciary being denied its due place as the third limb of the State in the country’s policy and planning and so on. Some of its wings such as the criminal justice system are nearly collapsing.
Why did you use the term “collapse” to describe the situation in the system?
The signs are there for all to see. From shoddy investigation to dysfunctional prosecution and lethargic adjudication, it all seems in disarray and in a mess. Investigating and prosecution agencies are not independent and that is why you see them changing colours with the change of political dispensation. There is no worthwhile supervisory mechanism to check lethargic judging and all factors taken together lead to a very pathetic situation with people languishing in jails and serving longer terms of sentence than prescribed under laws and consequently losing faith in the system.
There are other disturbing trends also which reflect the functioning and image of the judiciary. Even the higher echelons of the institution are charged with malfunctioning, mismanagement, pliability or other wrongdoing. Recently, four senior judges of the Supreme Court, including the present CJI, went public complaining of wrongdoing in the highest court posing a threat to the independence of the judiciary from within. What more is needed to indicate a near collapse?
What needs to be done to clear the mess is a matter of common knowledge. So many commissions and committees have gone into these issues and recommended ways and means to tackle these. But where is the implementation? Why there is no implementation is a separate matter. Is it not frustrating that we have not been able to formulate a judicial policy aimed at taking justice to the common man who has hardly any access to it?
Since you talked about judicial policy, what are some important issues that should be addressed on a priority basis?
All the issues I have mentioned earlier, be it of recruitment, infrastructure, speedy and inexpensive justice, reduction of the huge bulk of government litigation, introduction of latest technology, etc. My view is that the judiciary has always received stepmotherly treatment from successive governments.
The problem is that there is no investment made by the government in the judicial system which is an important limb of the State under the Constitution. Look at the investment made in this budget—1-2 percent of the national budget. One has only to experience the miserable conditions and the atmosphere prevailing in our courts.
What is the way forward?
Again, in my view, all ways are available and open. All that is needed is the will, determination and sincerity of purpose by the government of the day. It first has to realise the importance of the judiciary under our constitutional scheme and then accord equal treatment to it and give it its proper deserving place. This reminds me of Narendra Modi who, in 2006, addressed the chief justice’s conference in his capacity as Gujarat’s chief minister. He made a very impressive speech highlighting the problems facing the judicial system and disabling it to deliver justice to the common man. Participants at the conference, including me, were so impressed by his blunt honesty in highlighting the issues. Today, he is the prime minister and his government enjoys an overwhelming majority in Parliament. Could he not be reminded of his vision of taking the justice system to the doorstep of the common man and implement it?
Is there a lack of will? Why can’t we have a system of circuit courts like in the US where only constitutional matters are decided by the Supreme Court?
I have already explained what is lacking, which includes a lack of will by all the stakeholders. As regards the US model of circuit benches, we are governed by our constitutional scheme which provides for various jurisdictions of the Supreme Court and other courts. It is true that the top court is overburdened by jurisdictions which could have been spared. For example, its Special Leave Petition jurisdiction is regularly involved and available against the order of any authority. In my view, it makes no sense to engage the highest court in this jurisdiction at the cost of matters which concern the lives of the people. I am all for its scrapping but that can be done only by an amendment to the Constitution by the Parliament. The apex court which should have been deciding constitutional issues and legal matters of public importance is engaged in spending public time on such matters (like PILs, etc) which should have been left to be considered by other forums. As far as the jurisdiction of the Supreme Court remaining limited to constitutional matters is concerned, there have been suggestions/recommendations in this regard from time to time, but without any consideration and implementation.
Is there such a thing as judicial corruption? What are anti-corruption mechanisms like the Lokpal, the Accountability Commission and the Vigilance Commission doing to tackle corruption in the government, including the judiciary?
The issue of corruption in the judiciary must be dealt with cautiously to avoid any threat to the independence of the institution. It is nobody’s case that all is well in the judiciary and that only saints washed in milk and honey are running it. There are black sheep present but to paint the whole institution with a tarred brush is unjustified and unacceptable. I have known judges living by their conviction from hand to mouth, believing for good or bad that they are discharging some divine duty, without realistically realising that they are only utilising their craft in dispute resolution.
There is a need for enforcing judicial accountability and standards in the system, for which efforts have been made since 1968 when the Judges Inquiry Act was enacted. Thereafter, legislations in this regard were brought before Parliament but were allowed to lapse. Why and how this has happened is an issue to be debated separately.
Recently, a sexual harassment allegation was levelled against the CJI. And a suo motu hearing was conducted by a special bench of the Supreme Court constituted by the CJI, calling it a grave national security matter. Do you think this was the right way to deal with it?
Of late, one witnesses a pattern of targeting successive chief justices of India. This has brought the institution into disrepute. Smear campaigns are run and wild allegations are cast without the complainants coming forward to substantiate such allegations. A judge is a very vulnerable person; he has no way to give his version of events. Any disgruntled litigant or vested interest can throw dirt and mud at him. But that is not to suggest that there is no wrongdoing happening in the corridors of the judiciary. All that I am emphasising is that if there is any wrongdoing taking place, come forward and prove it. Bald and wild allegations only tarnish the image of the judiciary which is the custodian of people’s rights. Therefore, there is actually a need to check this trend while enacting any law related to judicial accountability because the independence of the judiciary needs to be protected to sustain people’s faith and confidence in the institution. That is why I plead that if a judge commits a wrongdoing, punish him through a credible and impartial in-house mechanism to sustain people’s faith in the institution.
As regards the allegations against the present CJI, why reopen a closed chapter? An inquiry committee of three apex court judges found no merit in the allegations. That should be the end of it. Why should holes be picked in the report of this committee when the same judges are trusted for deciding high-stake matters involving public and national interest? Enforcement of judicial accountability is the need of the hour. This debate has been uselessly going on for years. Why is legislation on the subject being killed by successive governments? A majority in the judiciary is always ready to welcome it with a caveat that it should cause no harm to the independence of the judiciary.
Do you think judicial activism has a place in India? Should the judiciary step in, even at the risk of being called activist, when other branches of the government fail to discharge their functions or trample on the basic structure of the Constitution?
I support judicial activism as long as it is within the confines of law and the Constitution and there is no misuse. If a court intervenes in such matters on finding failure or default of the executive or legislature, what is wrong in it? It is because someone is knocking on the doors of justice. When a common man approaches the court, he expects justice to be done. He can’t be turned away on the plank of separation of powers. As long as judicial intervention is to meet the ends of justice and it is within the framework of the Constitution and law, it must be accepted. Now scrutiny mechanisms are in place in High Courts to prevent any misuse of PIL jurisdiction.
Where do you see the role of the Lokpal against this backdrop and what do you have to say about the delay by the government in setting it up?
The Lokpal has now been established, after all. But it is best to not have high expectations from it. The reality is that corruption has become a norm in our society and anti-corruption mechanisms, wherever set up, are weakened eventually and rendered defunct. That is why you find that no such mechanism, be it the Lokayukta, CBI or RTI, has made any impact on corruption.
This defect was discussed by Jawaharlal Nehru, Sardar Patel, BR Ambedkar, Rajendra Prasad and Maulana Azad during Constituent Assembly debates. Nehru wrote many times about the importance of independent legislators to keep a proper check and balance on the executive. Is there a need for a massive overhaul of the Constitution to establish true separation of powers?
In my view, anti-corruption mechanisms are created only for a political purpose. There is no intent to make these effective or potent to facilitate good governance. Experience shows that after these institutions are established, they are made powerless in the course of time till rendered defunct. Let me give you the example of my own Accountability Commission set up in 2002 with high hopes and vast jurisdiction. No sooner had it started making an impact, most of its jurisdiction was taken away step by step to render it useless. So much so that the government is challenging its powers and actions day in and day out in courts. The government has taken the issue of its suo motu jurisdiction even up to the Supreme Court. A number of states have Lokayuktas now. One only hopes that they are empowered and allowed to function freely and fairly to achieve the purpose for which they were set up. The same is the case with the Lokpal, which was sought to be set up with high hopes. I know that there will be efforts to weaken it, to turn it into a failed institution, but I also hope and pray that it survives the onslaughts for the sake of national interest.
There is nothing short of a crisis in our judiciary and at every level of our socio-political organisations. Based on your own experience as a judge and a thought leader, where should one begin?
The judiciary is the custodian of the Constitution and the rights of the people. It is true that it is going through a bad patch, but I am confident that it will come out, stand up and rise to the occasion to protect and safeguard the rights of the people, unmindful of any adverse consequences. Governments will come and go but the institution of the judiciary will grow as a bulwark in defence of the rights of the people.