'As a judge, my job is to wipe tears'

Visheshwar Nath Khare served as Chief Justice of India from December 2002 to May 2004, but in the one-and-a-half years as India's top judge, he reaffirmed the well known dictum: Justice must not only be done, it must be seen to be done. It was Justice Khare who ordered that the Best Bakery case be transferred out of Gujarat so that the victims may get justice, and blasting the Gujarat government for its inability to deliver justice to victims of the Gujarat riots.

After stepping down from office, Justice Khare, who hails from Allahabad, spoke to Deputy Managing Editor Amberish Kathewad Diwanji at his home in the heart of New Delhi.

You have just stepped down from the judiciary. How do you look back upon your years in the judiciary and especially as Chief Justice?

I look back with many good memories. Being in the judiciary gave me a chance to do a lot of good work for the people and the nation. I always believed that as a judge, my job is to wipe tears, to give a benevolent interpretation of the statutes, and to protect the weak and the victims. The aim is to make justice reach all the people.

This is a problem whose fault lies clearly with the government. Do you know that in India, for every 10 lakh people [1 million], there are only 13.5 judges. This includes everyone, from the lowest magistrate to the Chief Justice of India. In contrast, in the Western countries, for every 10 lakh people, there are 135 to 150 judges; that is 10 times more.

How many cases can a human mind adjudicate? A judge has to hear both sides to the case, he has to weigh the evidence, interpret the law, and then judge the case. No computer can replace this decision-making process. All this is a very time consuming process, any haste can render wrong judgment.

Every time we ask the state governments to increase the number of judges, they say they don't have the finances to do that. The judicial services are not even budgeted for under the Plan category, but under the non-Plan category [which means, every year the judiciary has to seek funds from the government].

We have for years asked that this be replaced, that there be an all-India judicial service that has its own financial structure. This will require a suitable amendment in the Constitution. But for the last 30 years, little has been done.

Yes, I must admit that our subordinate judiciary is not up to the mark. There is corruption there. I am not saying that everyone is corrupt; in fact, it is difficult to assess the degree of corruption in the lower judiciary.

The problem is that it is for the high courts to exercise their authority over the lower courts and the high courts are failing in their duty of doing so. The Supreme Court itself has no power of superintendence of the subordinate courts. But I must stress that corruption is not endemic, just that there are some black sheep tarnishing the judiciary.

I also believe that the Chief Justice of India and his four senior-most colleagues must be given the power of superintendence over the lower courts. Someone has to judge the judges. After all, judges are human and not infalliable, they can make errors. The Supreme Court must have some power over the lower courts.

Posterity will remember you as the Chief Justice who censured the Gujarat government in the Best Bakery and related cases. Have we seen a breakdown in the system in Gujarat?

(Smiles). It is difficult to comment because the case is still on, and just recently, a bench criticised the Gujarat government. [The Gujarat government had opposed the transfer of the Best Bakery case outside the state, earning the ire of the bench].

The case came to me in August 2003. When I heard it, I just felt that something was lacking, that the prosecution just was not fair. There was connivance between the prosecution and the accused and I felt that something was seriously wrong. I even summoned Gujarat's chief secretary [the highest administrative officer] and the director general of police to tell them that the witnesses must be protected, because the witnesses were refusing to come out.

Could not the case have been heard in Gujarat itself, perhaps under protection and/or by a special branch?

The way the state prosecution was handling the case, one could infer and deduce that the victims would not get justice in Gujarat. Which is why the latest Supreme Court judgment [passed after Justice Khare had retired] has clearly said that the prosecuting team should be appointed in consultation with the Supreme Court. Within the state, the fear is that justice will not be delivered in the present situation.

I don't think so. Both these cases are special. The reason for transferring the case out of a state is that within the state, the witnesses may not come forward to give evidence out of fear, especially when the case is against the powerful. It is taking all these factors into account that the Supreme Court transferred the cases out of their respective states.

But what happens if one day, there is a case to be heard against the central government? That can't be transferred out from the Supreme Court. Won't the above factors then apply?

The Supreme Court has not faced any pressured from any quarter. There has been no interference by anyone authority or power. In fact, I have taken so many decisions against the government yet never been troubled by anyone in this regard.

Also, transferring cases out of the state has a Constitutional basis. The Constitution clearly says that if there is fear of justice not being given in a particular state, the Supreme Court is authorised to transfer the case to another state. So we are simply obeying the Constitution.

Isn't it tragic that not a single politician has so far been convicted for a case of corruption? Is something lacking in our legal system? How can it be rectified when someone you know is corrupt is still able to go scotfree? Does this not create the impression that the high and mighty are not bound by our laws?

That is true. What happens is that in such cases, the session trials cannot begin until all the witness have been won over by the prosecution and convinced to give evidence. The need of the hour is to provide all the witnesses with State protection, because unless the witness is convinced that he and his family is safe, why will he take the risk his life by giving evidence against someone powerful?

In the case of Gujarat, I had issued orders not only to protect the witnesses in the case, but also that lady who was supporting them [Teesta Setalvad]. I actually wanted to give a judgment about protecting witnesses, but was not able to do so. Nevertheless, my order on the Best Bakery and Setalvad will at least serve as a precedence [on protecting witnesses and their supporters].

In every state, the state government must provide protection to the witnesses, and where the case is a federal case, the witnesses must be protected by the central government.

When I took up the Best Bakery case, I was deeply saddened, Any human being would have been touched by the case. But I was also revolted by the case. While delivering my judgment in another case, I had said that in a pluralistic society, it is the duty of the majority community to protect the minority community. [T M A Pai Foundation v State of Karnataka, November 2002; the case was heard by 11 judges].

There are so many Indians abroad today; what will happen if the majority community there does not afford them protection? If the majority community there behaves with them the way they behaved here?

If the majority community cannot protect the minority, then the State will become a theocratic State. We have seen that happening in our own neighbourhood.

I agree with you. A Chief Justice must get a chance to serve at least for two years; less than that there is very little he can actually do.

Photograph: Ranjan Basu/ Saab Press

Image: Uday Kuckian