Tehelka Magazine, Vol 7, Issue 13, Dated April 03, 2010
Weighing The Scale Of Justice
As A Goldsmith
Weighs The Gold
Photo: AMBARIN AFSAR
“Decline the offer,” his father bluntly told BILAL NAZKI just a day before the
latter was to be sworn in as a judge of the Jammu & Kashmir High Court
in January 1995. “Being a judge needs the highest integrity and you may
not always display it.” But Nazki humbly urged his father, a two-time
Sahitya Akademi award winning poet and author, to let him become a
high court judge. At which, the father held out the Holy Quran and administered
an oath to his son: “Weigh the scales of justice as a goldsmith
weighs the gold.” The next day, Nazki went to court and was sworn in.
In his nearly 15-year judgeship with the four high courts of J&K,
Andhra Pradesh, Bombay and Orissa until his retirement last November,
Nazki never let his father’s profound wisdom leave him. “My father was
both deeply secular and deeply religious,” Nazki says. His other influences
range from Socrates and Plato to
Descartes and Spinoza. One of the most
outstanding high court judges in recent
history, Nazki is celebrated for having
provided judicial relief to tens of thousands
of the poor and the disadvantaged
wronged by the system.
Ironically, Nazki retired as Chief
Justice of the Orissa High Court only
after holding that job for four days. It
certainly rankles that despite his brilliant
track record, he never found himself in the running for the Supreme
Court. A native of Srinagar, Nazki was set to join the Aligarh Muslim
University to study philosophy when a community elder forced him to
take up law. “No one in my family had ever studied law in generations,”
he says, adding candidly, “I was an average but honest lawyer.”
In 1991, Kashmiri militants abducted and pumped four bullets in his
stomach. He escaped after they left him for dead. He was in hospital for
two months. Perhaps this attention helped him become the Advocate
General of the state. In 1995, he was elevated to the high court. Less than
two years later, he moved to the Andhra Pradesh High Court, where he
passed several historic judgements, including the order that the police
must compulsorily file an FIR in case they kill alleged criminals in
“encounters”, and the police claim must then be independently verified.
Nazki spoke to AJIT SAHI of TEHELKA. Excerpts:
How do you view the process of appointing
chief justices of high courts
and judges to the Supreme Court?
The policy for such appointments needs a
relook. I have been involved in the decision-
making for elevating two dozen
judges at two high courts. But I am not
satisfied with it. I was a judge for nearly 15
years before I could be chief justice, and
that too only for four days. Another judge
to whom I need not be inferior may become
a chief justice after only eight years.
The seniority of a judge is considered
from his original high court, in my case,
Jammu and Kashmir. So although I served
in J&K only two years and at Andhra
Pradesh High Court for 10 years, my
chances of becoming chief justice of a high
court rested on my seniority in J&K.
Let me tell you about a senior. Justice
VK Gupta served nine years as chief justice
in Himachal Pradesh, Jharkhand and
Uttarakhand but was not elevated to the
Supreme Court until he retired in 2009.
From 2002, when Justice RP Sethi retired
from the Supreme Court, J&K had no representation
in the Supreme Court. Still,
Justice Gupta wasn’t elevated. Why? Secondly,
Kashmir has a larger population
than Jammu and a bigger bar. Yet, all the
four judges from Jammu & Kashmir High
Court who went to the Supreme Court were from Jammu, including AS Anand,
who became Chief Justice of India (CJI).
Are you suggesting a bias?
I must clarify I am not suggesting either a
regional bias or a communal one. These
four were very good judges. It was a manipulation
achieved, in my view, by a person
who was very powerful in the Indian
judiciary for a very long time. In the last
25 years, six judges from J&K have become
high court chief justices, four from
Jammu and two from Kashmir. BA Khan,
the other from Kashmir besides me, was chief justice for only one-and-a-half
months. I was chief justice for four days.
Whereas the other four were chief justices
since 1984 until last year. Three of them
— Anand, Sethi and TS Thakur — were
elevated to the Supreme Court. I was Acting
Chief Justice of the Andhra Pradesh
High Court for eight months. My immediate
deputy was Justice Sudarshan Reddy.
He is now in the Supreme Court for more
than two years. Another judge junior to
me in Andhra Pradesh was Justice J
Chalmeshwa. He was high court chief justice
for more than two years. These things
need to be debated and discussed. This
has to be somehow addressed.
So how can the system be reformed?
A law is necessary. Many judges feel this.
But you don’t talk when you are in the
robes. Earlier, the powers to make the
appointments lay with the government. In
1992, Supreme Court judge JS Verma,
who later became CJI, devised the method
of appointment by the collegiums. This
hasn’t had such good results.
Should there be all-India seniority?
No. This is a pluralistic and federal country
and every region should have representation
in the Supreme Court. For
example, Allahabad High Court has 170
judges whereas Bombay has 75. An all-
India system would unduly favour Allahabad
judges. All I say is that the policy
has to be debated. But the judges can’t
start an internal debate. It will give the
impression that the judiciary is at loggerheads
with itself. I have never talked in
15 years, even to my friends. Even after
retirement, a judge should not say something
that discredits the institution.
Mustn’t judges declare their assets?
I don’t object to the demand. But according
to service rules, even bureaucrats and
police officers must declare their assets.
You don’t need to impeach them to remove
them. But how many are removed?
One of the greatest judges of the last century,
Lord Denning, said someone has to
have the last word. Let the judges be that.
But more importantly, the litigant should
believe I’m honest even if rule against him.
|IT RANKLES THAT
HE NEVER FOUND
HIMSELF IN THE
RUNNING FOR THE
SC IN SPITE OF HIS
How best can a judge play his role?
I would often say in court that this is not a
file; it is a human being. If a judge feels
that, he will find a way. A judge should feel
for a litigant like a doctor would for his
patient. In Kashmir, a sweeper appro -
ached my court against her dismissal. I
was shocked to find she was paid Rs 25 a
month. I stayed her sacking and ordered
the government to pay Rs 30 a day, not
just to her but to all 40,000 staff like her
working in schools and hospitals. At an
average of five to a family, I would say my
order helped two lakh people. It gave me
far greater satisfaction than most others.
In Andhra Pradesh, I found that compensation
had not been paid even 20 years
after thousands of acres were acquired. As
Chairman of the Legal Services Authority,
I took the cheques to the villages. We
couldn’t even locate 60 claimants. When I
gave an 85-year-old man a cheque for
Rs 3 lakh, he garlanded me. I said to him,
“You are patient. I deserve a garland of
shoes not flowers.” In another case in Maharashtra,
two men were still in jail five
years after being acquitted of a murder
charge as they could not pay the bail. I
waived the bail and ordered the government
to pay Rs 1 lakh as compensation.
Who is a good judge?
Once Abraham Lincoln jumped out of his
carriage to save a puppy from a pit. When
asked why he didn’t let his security do
that, Lincoln said he felt a pain in his heart
for the pup. A good judge is one who feels
a pain in the heart. I look out of my window
and see poor people sleeping on the
pavements. I get a luxurious flat because
I’m a judge. What about them?
Two schools of thought exist among
the judges. One says nothing is black and
white — keep room to come out [of a ruling].
Another says law must be black and
white. I belong to the latter. A few years
ago [then President APJ] Abdul Kalam
told a judicial officers’ conference — we
must rule in a language the litigant understands.
I must have decided 60,000 cases.
At least, people understand what I said.
|‘The system of appointing judges
by a collegium hasn’t had such
good results. I am not satisfied’
Why is judicial merit declining?
Before their elevation, most judges are lawyers usually specialising in one kind of
practice. As judges, though, they have to
rule on all kinds of cases. So judges learn
from the bar. If the quality of the bar goes
down, so does the judges’. Once in Andhra
Pradesh, I spent weeks studying chemistry
before giving life imprisonment to a scientist
who applied mercurial salts to his
wife’s vagina, slow poisoning her to death.
What most ails the judiciary?
The delays are too long and costs of litigation
too high. Most people are just not
aware of their legal rights. We don’t have
enough judges. Is it realistic to have 14,000
judges for more than one billion people?
They decide one crore cases annually.
What more do you expect? More than
three crore cases are pending across India.
Every year, we add about 50 lakh new
cases. An Australian judge once boasted
to me that he had decided 11 cases that
year. I told him I decided 20 a day.
Stunned, he asked, “How do you do it?”
Our judges are among the most efficient
in the world. I don’t think any judge
works less than 18 hours a day. We utilise
our vacations updating ourselves on law,
writing judgements and attending meetings
because the judiciary has to be
administered. These facts don’t come out
because judges don’t speak out.
How can these problems be resolved?
There is no way to regulate litigation cost
unless the bar does it itself. For those who
can’t afford [expensive] lawyers there is a
ridiculous mechanism — the Legal Services
Authority. On one side you have a capable
lawyer — on the other is a lawyer
who is paid Rs 500. You are not providing
any real legal assistance but only technical
assistance. The Legal Services Authority
needs a lot of funds to engage experienced
lawyers for those who cannot afford them.
|‘It is not a file. It is a human
being. A judge should feel like a
doctor feels for his patient’
How should the courts react to insurgencies
such as the Naxal violence?
Even in the worst of conditions, the State
must act according to the rule of law. If it
doesn’t, it will complicate the problem.
The State must be the first to honour the
rule of law. The citizens must be the second.
I have first-hand knowledge of the
militancy in Kashmir. Those who are not
sympathisers of the militants help them.
Suppose you are a law-abiding citizen and
four people with guns enter your house
forcibly in the dead of the night, force you
to make food and ask for keys to the car
and for money. But police suspect you to
be militants’ sympathiser. People feel police
should protect them, not harass them.
Once the judiciary stood for workers’
rights. Now it rules for big businesses.
The shift is attributable to the belief that
even the condition of the poor and the
downtrodden can be improved if overall
economics is improved. So if you allow a
person to have an industry, you also see
how much employment it will generate.
There is a shift in government policy.
Judges must have been influenced by it.
Why are the Indian police so terrible?
The police are impossibly overburdened.
They haven’t been trained. In the US, the
police begin with a clue and look for suspects
through it. In India, police begin
with a suspect and look for clues through
him. The police here know no investigating
techniques except beating the suspects.
How many people who have read
psychology work in the police? Ideally,
police should only maintain law and order
and prevent crime. But once crime occurs,
another agency should investigate it.
Is there hope for the judicial system?
It will take us time to fully establish the
rule of law because we are only a 60-yearold
democracy. You are not born a
democracy. You grow into it. In fact, our
country is on the right path. Such a phase
had been seen in the US and the UK, too.