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The overreach of the judiciary can be attributed to the inability of the executive to deliver and the tendency to issue judicial pronouncements for national good, says law minister Kapil Sibal. In an interview with Aditi Phadnis, Sibal says the second element is "dangerous" because that's the function of the government and that he will attempt to lay the foundations of structural reforms in the judicial system. Edited excerpts:
The one thing that successive governments have failed to do is legal reform. It seems to be an insurmountably difficult task…
The justice delivery system needs structural change. It needs fresh vision and innovative solutions. This cannot happen without the judiciary playing ball. Our hope that the judiciary itself will ensure transparency and accountability has not so far borne fruition. The system of appointment of judges, at present through the collegium system, has not worked to our expectations. The appointment of judges to the higher judiciary cannot be the sole domain of a few members of the higher judiciary. This turf must be shared. The government must have an equal say in the appointment of judges. Consensus is the way forward and I will try and build that consensus in the coming months.
Having said that, there is much that the executive needs to do. The executive, too, has not lived up to expectations. State governments need huge funding, not only to increase judge capacity but also to ensure quality.
India managed to get along by managing judges and the judiciary...
The thought of managing the judiciary is abhorrent to me. Our hope is that the judiciary manages the judicial system. It must be realised that without collaboration with the government, this cannot happen.
There is a sense that the judiciary is suborning the functions of the other arms of the government and it is going into domains not its own, to ensure justice is done…
The overreach of the judiciary can be attributed to one, the inability of the executive to deliver; and two, the tendency to issue judicial pronouncements for national good. The second element is dangerous because that's the function of the government. And then there's the media which has in recent years played a less than a constructive role since it seeks to pronounce judgments much before adjudication and on the basis of incomplete facts. That vitiates the atmosphere.
What are you going to do about corruption in the judiciary?
There is corruption in the judiciary. This has been admitted by no less than several previous chief justices of the Supreme Court. The worry is that this malaise, some say, is "rampant" in the lower echelons of the judiciary, where the common man seeks justice. That is the responsibility of high courts. High courts over the years have not been able to bring the element of transparency and accountability in the justice delivery system to instill confidence in the public about the purity of our judicial system.
We're not even going to the issue of pendency of cases and delays…
I think there is a realisation that technology can provide some solutions. I personally believe technology can transform the functioning of the judicial system. Take the case of traffic offences. Why should offenders have to go to court to pay a fine? This can be done through video connectivity. Proceedings of district courts should be audio recorded. Petty offences again can be dealt with the public not having to waste time in courts. The use of geo-spatial technology and IT (information technology) can deal with a large number of cases relating to real estate. Data relating to members of the judiciary seeking elevation to higher judiciary should be available online, available to the public.
The reduction of human discretion by adoption of technology can solve a large number of problems of delay and issues of accountability.
You've now been a law minister for 20 days. In this period, what have you managed to achieve?
Yesterday, I addressed a meeting of home secretaries, registrar generals, law secretaries and talked about various issues. I have talked to senior law officers…
Apart from talking?
The idea of audio recordings in all high courts has already been mooted. I have set in motion the use of IT in dispute resolution. I have instructed the law ministry to work towards putting in place a system with NIC (National Informatics Centre).
I have instructed the ministry to ensure that all documents with the registry of the central agency be microfilmed so that we don't have to deal with paper that often we cannot find. NIC will do this 2013 backwards. Summons are not delivered to the defendant and accused for years. Why not use IT to ensure summons delay does not take place? These are simple things that could have been done and must be done.
There is a lot of legislation relating to the judiciary that your predecessors kept sitting on, either because of incomprehension or just lack of interest…
The Bill to set up a judicial commission for appointments to the higher judiciary will come up in the next session of Parliament. I am hopeful it will be passed. The agenda of judicial reform cannot be implemented during the tenure of this government. But I can assure the people of India that I will attempt to lay the foundations of structural reforms.
That the quality of law officers of the government is pretty poor is the government's worst kept secret. There are times when the government has to hire lawyers from outside to fight cases. What are you going to do about this?
I cannot change the system overnight. I cannot change the people in the system overnight either. But I give my commitment to the people of India that no appointment by me shall be based on any extraneous considerations. We need leading professionals to defend the government. If you approach the best legal brains to be part of the government, they will not say 'no'.
So what's stopping you from doing that?
Nothing will stop me from getting the best legal brains. We must also ensure that those who hold substantial permanent positions in the government like retired judges should not be doing private practice. We should also ensure that those who are appointed by the government as law officers should not be doing private practice, except in special cases where they have notified the government. The public must have complete confidence in taxation matters.
I want to do so many things. We desperately need commercial courts to resolve commercial disputes expeditiously. We need to make changes in arbitration law and procedures. We need to get subject experts to deal with arbitration. India can become the centre of commercial arbitration in this part of the world. An alternative dispute resolution mechanism should be efficacious and expeditious. This (appointment as minister) is a huge opportunity.
