‘You can’t reform individuals but you can reform the system. Even corrupt officials won’t deviate from the system’
MANEESH CHHIBBER: You have just released a vision document for your ministry. What are the major bottlenecks you plan to remove in the judicial system?
I have prevailed upon the PM to open additional courts. Also, we will tighten factors related to the prosecution of cases. We would like to create a separate cadre of prosecutors—the head of the prosecution must be of secretary grade so he enjoys enough autonomy. We would like to put all CBI and corruption cases on a fast track.
Corrupt people have no fear of the law and hence corruption continues and the rule of law is a casualty. We do not want that. We are also considering expediting regular murder cases and appeals. Fast track courts have begun to function, and we would like to extend them to other cases. We have civil cases where the suits have been rendered infructuous. That will have to be sorted out. Also, there are petty cases like traffic challans or accident claims that should be sorted out immediately. We want to give priority to cases pertaining to senior citizens, disabled persons, widows and victims of atrocities. Wherever such cases are pending, including at the Supreme Court, they must be put at the top of the agenda.
Another major issue is that of the government, at the Centre or in the states, becoming the prime litigant. It is totally irrelevant and unnecessary and due to a lack of accountability on the part of the officers. They do not want to take decisions and even if they do, they are evasive. One exercise I started immediately after taking over was to write to all the Central ministries and to the chief ministers asking for details of pending cases. They are all writing to me with the particulars. I am now classifying them.
SHEKHAR GUPTA: What about tax cases?
We will put those cases on a fast track. Although I don’t agree with the criteria and indicators used by the World Bank, its report said that doing business in India is very difficult. That is because of our system. I have already prepared the Commercial Courts Bill. It has been circulated to various ministries and I will present it to the Cabinet soon. I would like to introduce it in Parliament during the winter session. The Bill will mainstream commercial courts. They will be established at all the high courts, may be for high-value cases involving Rs 2 crore and more. With this Bill, we hope to mainstream the entire administration of justice in commercial courts so that the perception that we are slow will be wiped out. We need more courts; we should have the physical infrastructure, manpower and Information Communication Technology (ICT). All this costs money. I have drafted a Bill under the Central Court Fee Act for enhancement of the court fee so that we can generate resources from within our system.
SHEKHAR GUPTA: Should Mukesh and Anil Ambani pay Rs 5 crore per hearing?
In Singapore, they charge for even an adjournment delay. I will not go to that extent. But we can decide a murder case in a matter of hours. And, unless there is good reason, a hearing should continue from start to finish.
M.K. VENU: The gas case hearing involving the Ambanis took one month for oral submission, another month to write the submission and there are about 18,000 documents. How will the judges read these documents?
Everything has to be on ICT. The other issue is the time limit for the judgment. There is already an SC judgment that says a judgment has to be delivered within 15 days or, three months in certain cases.
VINAY SITAPATI: If you want to reduce government litigation, the official who decides not to appeal must be insulated from corruption charges, or he or she must be penalised for a wrong appeal. What are your proposals?
One of our proposals is to have a responsible law officer in every litigant department. Officers at that level are expected to take decisions and be accountable. We are quite conscious of the fact that they are afraid of the Central Vigilance Commission (CVC) or corruption charges. I have always believed that you cannot reform individuals but you can reform the system. Even a corrupt officer will not deviate from the system. We need to develop a culture where they respond to the system. If a system is in place, ultimately, it takes the responsibility, not the individual officer who has taken the decision. It is possible and we can do it.
VINAY SITAPATI: Are you thinking of a law for this?
We will do whatever is necessary. Often we think of changing laws and the Constitution but governance is what we require. We have enough rules and provisions to take care of everything but the question is, what if, even with all that, an officer shirks responsibility? He has to be held accountable for the loss he is causing by sending a matter to court.
DHIRAJ NAYYAR: Who, in your view, should appoint judges?
According to a memorandum of procedure drawn up by the government and the judiciary in 1996, collegiums of the high court make proposals for high court judges, the remarks of the Governor and the Chief Minister are called for and then the Chief Justice writes to the law minister. I process it. Subsequently, I send it to the collegium and to the Chief Justice of India. Meanwhile, I would have received reports from IB and other sources. We forward the proposal to the CJI with our remarks and then the SC collegium sends its recommendations, which I have to approve and forward to the prime minister. Then the PM sends it to the President.
The impression given to the public is that judges appoint themselves, but I do not agree. There are important, responsible acts that are performed by the constitutional authorities. Some infirmities have been appearing in the appointment of judges and we need to address those. I do not say it is altogether satisfactory. There are times when we discover things. When I read the SC judgment (on the appointment of judges) and the memorandum of procedure, I found that the memorandum was not strictly in accordance with the judgment of the SC.
There is a national debate on the possibility of an independent and objective collegium. Maybe we will introduce one, either with the consent of the judiciary or with an amendment to the Constitution—that will add a lot of objectivity to the selection of the judges.
UNNI RAJEN SHANKER: What background checks are done before appointing judges?
As a constitutional authority, we have a responsibility and that responsibility includes checks and counter-checks, either through independent bodies, through IB or through other bodies. But that happens after the first proposal comes to us from the high court. I have referred a few cases back. Earlier, additional judges to high courts were appointed and confirmed as a matter of course. But in one or two cases, I stopped them. I found enough reason not to confirm them and the SC collegium agreed with my views.
SEEMA CHISHTI: Why were these persons made additional judges in the first place?
I am planning to take up the Judges Standards and Accountability Bill, which will be very comprehensive. What happens now is that even if 50 MPs sign and move for an impeachment, the resolution will undergo another committee review. Impeachment of judges is an extreme measure. Many issues like reinstatement of the values as enunciated by the Supreme Court in 1997, misbehaviour and misconduct will be dealt with in this Bill. Even the declaration of assets and liabilities by judges will be a part of this Bill and the clause pertaining to confidentiality will go.
SEEMA CHISHTI: There have been cases such as Reliance where the judges have offered to recuse themselves saying they had stakes in the company or other personal connections. Will you be looking at such cases?
Conflict of interest will be a part of the Standards and Accountability Bill. We will also define conflict of interest—not by perception but by certain parameters and those parameters will be laid down.
MANEESH CHHIBBER: If the SC collegium decides to reiterate its first decision on the elevation of Chief Justice PD Dinakaran to the Supreme Court, what will your stand be?
We will not go by perception and impression but on hard facts and evidence. It will be seriously looked into, I can tell you that. You need to judge whether the representations against him were correct or not. I cannot pass any value judgement across the table. However, I must ensure that the constitutional authority, which includes the government, is totally convinced about the case—otherwise we will not do it.
VINAY SITAPATI: Controversies regarding Justice Dinakaran’s appointment suggest that somebody at some stage must not have done his or her job.
How can you say that? Maybe they did their job very well, but there can be vested interests. Judges will always evoke sharp criticism and this is why we say they must have independence, they must work in a fearless atmosphere. They cannot think they will be criticised because of their decisions. The day the judges start thinking that, they will not render fearless justice.
COOMI KAPOOR: What about the accountability of lawyers?
The conduct of lawyers will be regulated by the Bar Council of India (BCI). We have interacted with the Bar Council and they are proactive on this issue. Regulatory authorities will have to discharge the duties for which they have been created. They will have to maintain professional standards, which include accountability. We are contemplating some amendments to the Bar Council Act. We are thinking of system-based changes. In the 1970s, there was a call to pre-train the advocates but the SC struck it down because of technical reasons. At the national consultation on removal of pendency, it was decided that the first phase of judicial reforms will deal with the disposal of arrears and the next phase will pertain to legal education and also dealing with regulatory authorities.
VINAY SITAPATI: The problem is that BCI works as an interest group rather than a regulatory body.
Regulation and legal education are the two things with the BCI today. The SC has already given a decision on the subject and laid down certain parameters. We have had discussions on these issues. Perhaps within a month or two, we will come up with a solution.
DHIRAJ NAYYAR: What is your stand on the entry of foreign law firms in India?
The issue is now pending before the Bombay HC. The next hearing is in mid-November. Recently in London, I met a group of 80 upcoming young Indian lawyers. They had graduated from Indian law school universities. The very fact that students from such universities are going to corporate law firms abroad is not a good reflection because their services are not available here.
In the UK, there was resistance to the entry of US law firms initially; similarly in China, but it ultimately melted away. Today or tomorrow, it will happen here, but we have to take along our lawyers. I am going to have a brainstorming meeting with vice-chancellors of all the 14 law school universities. Then I would like to talk to BCI.
SHEKHAR GUPTA: Is it a trend that good lawyers do not want to become judges? Can you make the job of a judge more attractive?
As I often say, there is enough for need but not for greed. You cannot tempt people with money because there is no end to it. We need to create an atmosphere where intelligent people, who love the country, sign up.
SUBHOMOY BHATTACHARJEE: There is a perception that it is the composition of tribunals like CAT and TDSAT that often decides how the case will be decided. Also, CAT judgments often produce contradictory decisions back to back.
There is nothing wrong with the concepts behind setting up these tribunals—they are done with the best of intentions. But we do need to take steps. We need to decide on a uniform upper age for its members, we need to reaffirm the purpose for which they have been established. I may take another two months to finalise this. Even the SC has said that the law department has to regulate these. We plan to come up with a strategy to firm up these things—either they should function within the parameters and for the functions they have been set up or irrelevant tribunals can be asked to wind up. This is an area that is of great concern to the government.
PRAGYA KAUSHIKA: Do you have any plan for improving law education in the country in conjunction with HRD?
We need to take a big step forward as far as law education is concerned. I have already started the process. The HRD minister is also a lawyer and I can take advantage of this fact. I am determined to bring in reforms. I pioneered the law school university concept in Bangalore. Now we have 14 such law colleges and we are going to increase the number. We would like to have four such colleges that will offer a post graduate degree and will prepare faculties.
UTKARSH ANAND: Should court hearings be photographed and videographed?
Yes. Sam Pitroda recently interacted with us via video conferencing from Chicago and I, along with several judges, heard him. This is the biggest programme of UPA II vis-a-vis legal reforms. There are a lot of cases pending and 70 per cent of prisoners in our jails are undertrials. Within six to eight months, these cases will have to be closed. Normal court hearings can also be videographed. A day will come when all court hearings will be videographed.
RAJ KAMAL JHA: You came to this ministry after Hansraj Bhardwaj was removed. Did you discuss anything with your predecessor?
No, he was not removed. I had called on him the same day I joined the Cabinet. We have talked many times. Now he is in my state and I discuss things with him.
Transcribed by Utkarsh Anand
THE LINK TO THE INDIAN EXPRESS ATRICLE
You can’t reform individuals but you can reform the system. Even corrupt officials won’t deviate from the system’
In an Idea Exchange moderated by Special Correspondent Maneesh Chhibber, Law Minister M. Veerappa Moily