 Welcome to NewsClick. We have with us a senior advocate of Supreme Court, Sanjay Haigadey, to talk to us about the crisis in the higher judiciary, especially what is happening in the public sphere, what we are aware through the media and also what is happening in the courtrooms about the judges favoring certain benches or be the case of having a large number of high courts vacant where about 400 tilt date, 403 high court judge positions are vacant. Welcome, sir. It's a crisis for the judiciary and every time I mean in the common parlance there used to be a discussion that it is always the judiciary which held its nerve and brought democracy back into action and it is upholder of the constitution. But now you see that the judiciary is facing some heat from its own people who are saying things are not actually in accordance with the rule. Well, this is a crisis which has been working its way for a very long time. This has happened because as a country we have grown educated, we have grown litigious, but the expansion of the judiciary has never been on our agenda. No politician ever gets elected saying that we will get you a better law and order system with more judges spending on judges, courts, court infrastructure. There is nobody's priority. So, right from the early days of Mrs. Gandhi in the 1970s you had this call for a committed judiciary. Now, it was seen by strong governments, whether it was Pandit Nehru, whether it was Indira Gandhi or whether it is the current government, that often the judiciary acts as a questioner, acts as a break on the direction that the government wants to go in. You must remember that Nehru wanted to go in and acquire property rights of Zamenda's redistribution. Mrs. Gandhi wanted to do it on a larger scale with banks and things like that and often it was the judiciary which stood for the fundamental right to property as it existed there. So, the strong rulers found a strong judiciary inconvenient. The judiciary and the government have always had a certain tension between them. Sometimes it is creative tension which leads to development, but a lot of the time the tension has an effect of putting the institution itself in crisis. So, currently how would you see the I mean the relation between the current central government and the judiciary? This particular government came in with a huge majority. Before this government was elected I remember what Mr. Falina Raman once told me that a majority government will see a conformist judiciary and when this government came in and then announced that it was going to take over judicial appointments, arrest it back from the judiciary which had got it into its hands from the 1990s onwards. There obviously the situation was where there was a clash of two powerful forces. The judiciary declared that it had won but the government then has continued to sit on files. The government has decided to drag its feet and at every stage at every appointment sometimes runs into so many crises that the judiciary also has had to give way at times has had to temper its recommendations. For instance there is a high court judge who many in the judiciary believed should have been in the Supreme Court long ago but a judgment which he gave in Uttarakhand may not have been to the liking of the BJP. So, there has been delay in his coming to the Supreme Court. But also if you see or not that but you also see there is a huge vacancy but 403 judges post are vacant and how do you think it has a bearing on the constitution and the polity and the democratic setup of this country. See every I go to a lot of high courts and a lot of high courts have told me that you know they were already groaning under areas and what has happened is because of this period when the judiciary had to review the constitutional amendment on the NJSC and then things were at a standstill. So, for about 2 years there were no judicial appointments which were being made other to the high courts other than some very routine appointments that were routine appointments were basically appointments from of people who are already district judges. Why do you think there is a delay in this front because delay occurs at the high court level because the chief justice of the high court sometimes with the senior most judges of the high court has to send in recommendations. Those recommendations have to be approved by the Supreme Court Collegium and then they go to the government and the government then has to approve them it does the IB reports and things like that. Now, at any of these three stages there can be a delay. The high court chief justice is often a judge from another court who has been transferred there as chief justice. He necessarily has to depend on the senior most judges of the high court who are from within the same state who know the local conditions and who know the local bar. Sometimes all three of them are not in tandem. So, then there is one fight about recommendations there. Very often the high court also has contributed judges to the Supreme Court. The Collegium at the Supreme Court level asks sometimes the high court judge concerned who is now a Supreme Court judge as to what he thinks of those recommendations. And within the Supreme Court Collegium also if there are creative tensions one way or the other the process can get stalled. After all this is cleared then it goes to the government. The government very often depends on the IB. IB requests go out. Now, what is the IB process? The process can be is very opaque. It can be manipulated in several manners and sometimes it is absolutely mind boggling. So, at any stage of this filtration there can always be problems. So, but similar to the member of legislation and the parliament there is only a six months gap you can have it in that level. But judiciary has even far more important responsibility. It is the interpreter of the constitution. There are many people dependent be it the fundamental rights or anything. How can there be no I mean space and how did why did the judiciary not create see the position for this or some provision for this? No, they forget the provision. It has to be in the actual working and the system used to work in the old days because who made a judge? It was often the government who made the appointment, but the government listened to the Chief Justice of the day. Now, the Chief Justice of the day also in those days in the early days of the constitution used to be appointed from the same high court. Now, over the working of the constitution and over the last 70 years and the various judgments and the various memorandums of procedure and things like that. We have all built our own little little islands of red tape and we tie ourselves up in that. The to my mind what really needs to be probably done is for the judiciary itself to come to some understanding of having some kind of all India body of their own judges and retired judges. Who could very well be talent spotters? Who could have their who could make these recommendations well in advance and then the colligiums concerned processing them speedily so that you have your candidate cleared to step in no sooner that the previous incumbent has retired. Sir, there is also a demand from the social groups that there should be a diversity in the judiciary like how it exists in the society. And if the National Commission for Sheddlecast had actually written a report to the parliament asking for having I mean this diversity maintained in the higher judiciary. But I do not know what the judiciary thinks or the law fraternity thinks on this. Can you give us some insights on this? I do not claim to speak for all advocates but I think that diversity is a very good idea. It what happens is that judges otherwise tend to all come from the same kind of middle class decent achievers club where everything turns more on the letter of the law with not that much experience of life and its diversity. The point however as far as diversity is concerned is that we fail to produce enough people in the zone of consideration who have been able to overcome most of those life challenges to come to a zone where they can be considered. You see the there is this thing about dynamic equality where it matters where you start the race from. So, we had in our in the Supreme Court Justice K. Ramaswamy who who told us that he came from a background where his father had been a manual scavenger at one point of time and he said that when he he would not have even succeeded in law had a comrade lawyer not allowed him to sit in his chamber. He would not have gone further had one particular law minister who had been a judge of the high court not noticed him. The point is that everybody agrees that diversity is a good idea but nobody works towards creation of enough resources of people who have come up the hard way. Now coming back actually to the judiciary itself sir I mean in the popular media and elsewhere we talk about the backlog of cases which are say 10 years 5 years old and which are actually in the lower judiciary it is close to 3000 3 crore cases are pending and in the Supreme Court about 50,000 cases are pending and in the high courts around 30 lakhs to 28 lakhs are pending and it is a huge pendency. So, why do you think this pendency actually exists? One is that the that the legacy over the years has just been building up. So, then when you you serve it totally undigested to any set of lawyers and judges the tendency is to see how much can be done during the day and then it is kept off for another day. What the process what really requires to be done is to look at outcomes rather than processes. Now there are lots of criminal appeals which are pending in the Allahabad High Court. I am told that they they date back to the 1980s. Now if each of those files was taken up and said that somebody made a note saying that this is the offence, this is the punishment which has been imposed, this is when this is how how old the offence was. The people are on bail, this is currently their age must be in their 60s or 80s. You first check whether those people are even alive. They finish those cases, close those cases. In the current processes please encourage as many matters to be worked out and settled off court time and that in court when they come it is there for the judge's attention only for a judicial decision. The pressure on on courts time should be really calculated and it should be calculated on the basis that time is a non-renewable resource. If you take court's time and if you take it just because you like the sound of your own voice or for any exercise in futility then you must be penalized for that. Now coming to the most controversial issue about the death of a CPI court judge and that case is under controversy because first it was in the Bombay High Court now it has been brought to the Supreme Court and also the bar council of India coming into picture where a certain lawyer has completed the bar council to actually cancel the license of certain lawyers. What do you think is the actual game being played there? I would not like to speculate because there are games within games in all this and there is too much politics in world. I would dispassionately like and that is what the Supreme Court is attempting to do. For somebody to just ask the question is there a possibility that the man died a death which was not natural? If there was that possibility or if there is an arguable case there should it not be investigated and if it has to be investigated who has to investigate it and how do you? Because the real question is this that justice has to be seen to be done and it is not that justice can be only done as a matter of form. If there is any doubt in this country that you know even the judges are not safe then sometimes it becomes incumbent on the judiciary to at least assure the people that processes have gone on which assure everyone that judges are working without fear or favor. Senior advocate Sanjay Haigde says that the retired judges should actually form an association or a group and mentor the future lawyers so that there is no vacancy in the judiciary and so that democracy is preserved and the rule of law and the constitutions are protected for the future generations to come. Thank you Sanjay.