In a democracy, judges, like other holders of public office, are ultimately accountable to the people. The higher the office, the greater the accountability. People have a right to know how people in high offices are functioning. Recent developments involving some members of the higher judiciary are, therefore, deeply perturbing.

• SEEMA CHISHTI: You spoke of a mechanism that is required to settle or look at charges against judges or former judges. What do you propose?

If criminal liability is not involved, I don’t think it is possible to have the same mechanism for all levels. For the subordinate judiciary, the high court has power of control by virtue of Article 235 of the Constitution of India. Also, I don’t think people other than judges should be involved in case the conduct of members of the judiciary requires scrutiny. The involvement of others, or politicians, will not be appropriate and consistent with the independence of the judiciary.

In the Justice Veeraswamy matter, in which the allegation was of corruption, the majority on the bench upheld the application of the Prevention of Corruption Act, but I disagreed with the majority and took the view that a fresh law needs to be enacted because there is now a felt need for it. I think if there are specific charges against a judge, a body of judges could sit and decide on the merits. In case there is no basis, then contempt proceedings must be initiated, but if there is a basis for the allegation, and there is justification for proceeding against the judge or former judge, that must follow.

• SMITA AGGARWAL: The judiciary has been active and has earned praise from people too. Is that because the legislature and other institutions have failed the people?

I am very much for the judiciary ensuring that the rule of law prevails and that citizens get their due, with all institutions performing their duty. But I am not for judicial overreach — that is not permissible. I will give you an example from the hawala case.

There were repeated prayers to constitute a committee headed by a retired Supreme Court judge to oversee investigations by the CBI. We rejected that demand because investigation into an offence is a policeman’s job, for which judges are not trained. We can adjudicate and ensure that the policemen do their job, but we cannot take over their functions. Even in the commission of inquiry relating to Rajiv Gandhi’s assassination, there was an attempt to enlarge its scope and add the issue of “conspiracy”, but I refused, saying that was a policeman’s job.

You are right, institutional failure is what makes judicial activism necessary. Article 14 of the Constitution says there has to be equal application of the laws, but if that doesn’t happen and widespread corruption adversely affects the lives of citizens, and if fundamental rights under Articles 14 and 21 are violated, then Article 32 (which Dr B.R. Ambedkar called the soul of the Constitution) gets attracted. And it becomes incumbent on the Supreme Court to step in and enforce the fundamental rights of citizens.

• COOMI KAPOOR: When does judicial activism turn into judicial overreach? Could you give us some concrete examples?

Well, the rule of law is the bedrock of democracy. If someone comes to me and says he is not getting his due because some authority, or person in power, is not doing his job as required by law, I, too, as a judge, cannot throw up my hands and say, ‘I can’t do anything.’ That would be a negation of the rule of law, and people would tend to resort to extralegal remedies, leading to anarchy. So the judiciary does need to step in to mandate performance of duty by an authority. But it should do so responsibly, without taking over that job itself. The problem is not with activism; the problem is when judicial intervention becomes overreach.

• COOMI KAPOOR: But in Delhi, the Supreme Court decides which buildings will be demolished, where the monkeys will go, what fuel should be used, and a host of such things. In your opinion, is that activism or overreach?

I will give you a few examples. When it was clear that the environment was being degraded, or when a petition demanded a ban on certain drugs said to be harmful, we followed the principle that it was important to compel the statutory bodies that were set up do those jobs to do them. If they weren’t doing what they should be doing, our job was to somehow make sure they did — by monitoring their functioning, not by taking over their functions.

In the hawala case, for instance, we introduced a phrase that has now gained common currency — ‘continuing mandamus’. In this we ask the statutory authority, say the CBI, to report the progress of its investigations to us on a continuing basis to ensure that it is doing its duty. We never stepped beyond that line.

If the court starts doing a job not supposed to be its, then, other than the problem of lack of expertise, it leaves the aggrieved party no forum to ventilate grievances. So the answer to your question is: whenever courts take over the function of other bodies or experts, it amounts to overreach; when they adjudicate a legal issue and the decision has a juristic basis, it is legitimate judicial activism and is justified.

• VARGHESE K. GEORGE: What happens in case of judicial failure?

It is true that there are a lot of cases pending in courts. Some former Chief Justices of India had said the “system has collapsed”. Well, I did not think so. I always had faith in the system. In the early 1990s there were more than 1 lakh cases pending in the Supreme Court. With a systematic approach and through concerted efforts of all, with hearings that continued till late in the evening, we were able to reduce these to manageable levels of less than a year’s backlog. This has been achieved through clubbing of similar cases and other measures. Just increasing the number of judges to solve this issue can be counterproductive. Because increasing the number of judges all at once is bound to compromise on quality.

The high courts are pivotal, for they also have administrative power over the subordinate judiciary. They need to be more proactive on this issue. Most of the backlog is in subordinate courts. I do not believe that the resolution of the problem can be left to the political executive alone.

• VANDITA MISHRA: It appears that the judiciary is increasingly getting into the game of balancing interests rather than staying out of the arena of competing interests.

Not all judges do this. Some may, and that is why I have always argued for protecting the judiciary from political interference and instituting a system of checks in the process of appointments of judges.

As for as the appointment of judges in the Supreme Court and the high courts, in the light of up-to-date experience, I now feel that neither the prime minister nor the Chief Justice of India alone should have a decisive voice. Maybe another constitutional authority senior to both of them, say the vice-president, who doesn’t belong to either the executive or judiciary, should chair the judicial commission, comprising members from the judiciary headed by the CJI and members of the executive headed by the prime minister. This is a view I have expressed earlier. The details of the composition can be worked out.

I also feel that the correspondence relating to the appointment of judges should be made available under the RTI Act after the process is completed and the appointment made. I am against what happens in the U.S. during the process of selection. What is wrong in the correspondence being disclosed once the appointment is made? The transparency of the process will be an internal check against arbitrariness and will ensure accountability. The judiciary is entrusted with the task of keeping everyone else in check. It must have the moral authority to do so.

• SHAILAJA BAJPAI: There are several death sentences pending execution. There are mercy pleas with the president. In your opinion, should capital punishment be retained?

I think it should be retained only for a few of the most heinous offences. During my long career, I recall having awarded the death sentence only twice in high court. One was under Section 303 of the Indian Penal Code, which was struck down by the Supreme Court. But it has to be only in the rarest of rare cases. But if capital punishment is abolished, then the life sentence must be for the rest of life. That’s why in the U.S. they have life sentences of 80 years or 110 years. People don’t live that long. The 80-110 year sentence is to ensure that the full sentence is served out. The full sentence must be served out. And if a death sentence is given, it should be by unanimous verdict. Even if one judge differs, it should not be given.

• VARGHESE K. GEORGE: The political class and the judiciary have changed with the advent of reservation. But the judiciary has stayed where it was. Is this difference in class and caste composition the reason for so many clashes and differences?

It’s true that the composition of the higher judiciary is different from that of the executive. But I don’t think that clashes occur because of this. A judge is selected for his ability to judge without being influenced by his background. The political class is influenced by vote-bank politics. The judiciary does not need to be influenced by this factor. Take, for instance, the issue of reservation in super-specialty courses in medicine — politicians may argue for it, but every politician will want to get himself treated abroad. The call for reservation in judiciary, too, has more to do with politics than anything else. What we actually need is an opportunity for everyone to come up in life. An enabling environment needs to be created. Rather than insisting on quotas for different segments and filling them up with candidates who may not always be up to the mark, we must ensure that people from all sections automatically make it on merit. In recent years, people from deprived backgrounds are making it to the civil services and other high positions. There was the case of a rickshaw puller’s son who made it to the IAS. So, with an enabling environment, that is bound to happen without quotas too, with proactive affirmative action. That would be real upliftment and equality, without compromising on merit and efficiency.

• TANNU SHARMA: So does this mean there are no competent women in law? There isn’t a single woman judge in the Supreme Court. Shouldn’t we have reservations only for this?

You cannot suddenly have reservations for women at the Supreme Court level without creating an adequate or suitable base. Those chosen have to be of a certain standard. I know some excellent women lawyers and soon, I’m sure, they will be ready for the job. It will happen slowly, but surely. In fact, when I was in office, I tried to convince a few very good women lawyers to accept high court judgeship, but they declined because there’s a lot more money at the Bar. Maybe the remedy lies in competent women lawyers becoming ready to accept the offer, when made.

• PAMELA PHILOPOSE: The contempt law is seen with contempt. Does the judiciary still need this crutch?

I agree that the contempt law should not be used in an indiscriminate manner. Its misuse, at times, has eroded the credibility of the judiciary. At the same time contempt law does serve a purpose and should remain in the statute book. In fact, I believe that like capital punishment, contempt law should be used only in the rarest of rare cases. An important amendment has been made in the contempt law. Truth is now a defence in contempt of court proceedings “if it is in public interest and is bona fide”. This was an amendment that needed to be made. How can speaking the truth be a punishable wrong?

As an aside, once a journalist asked me if lawyers could be honest and upright? I, too, had such an erroneous impression before joining the Bar. That is why I never wanted to be a lawyer. I wanted to join the armed forces, for which I had been selected. It was my father who was very keen I become a lawyer. So I studied law, but was still reluctant. When my father asked me why, I told him my impression. He then took me to the man who was to be my mentor, G.P. Singh, who later became Chief Justice of Madhya Pradesh, and told him what I felt. G.P. Singh accepted me in his chambers, where I apprenticed for a few months and realised he was the most upright lawyer and also the leader of the Bar. That experience made me decide to join the Bar, and the rest followed.