Observing that the judiciary did not have any "serious confrontation" with the legislature or the executive, the newly appointed Chief Justice of India KG Balakrishnan on Tuesday said that there should be debate on the issue in the country.
"I don't think there is a serious confrontation…(only) some views have been expressed about it," Justice Balakrishnan said in an interaction with journalists at his residence in New Delhi. He, however, favoured a debate on the issue.
The new CJI, whose appointment was notified on Tuesday, will take the top judicial post from present CJI YK Sabharwal, who retires on January 14. He will be the 37th CJI and will have a relatively longer period of three years and four months in office.
Asked if the allegation of judicial activism was due to failure on the part of the legislature or the executive in discharging the functions assigned to them, he said, "not failure as such. People come to courts…sometimes courts have to give certain directions which are normally issued by the Executive."
Justice Balakrishnan, however, maintained that judicial activism has worked well in various fields, particularly in protecting the environment and forests.
He did not agree with a suggestion that the legislature and the executive were deliberately sending contentious issues like Ram Janmbhoomi-Babri Masjid controversy to the courts instead of finding solutions to them on their own.
"There is no such specific motive (behind it). It's all part of the judicial functioning. It's not peculiar to India. It's happening in the US also. Issues affecting the society come to the court," he said.
Reservation and creamy layer in SC/ST reservation
Justice Balakrishnan, who was part of the Constitution bench that introduced the concept of creamy layer in quota for the Scheduled Castes and Scheduled Tribes in government jobs, refused to be dragged into the controversy over the politically sensitive issue. "I don't want to comment on the question of reservation," he said.
Terming it as a "very ticklish issue", the first Dalit CJI of the country said it would not be possible for him to comment on it as a sitting judge as his personal views become very important. Judges should not express their opinion on any matter likely to come up before them for hearing, he further said, adding that the issue of reservation was still not over.
On Judges Enquiry Bill, Proposed National Judicial Council & Transparency Justice Balakrishnan said, "Let us see how it works. I am bound by the law. Judges are not above the law."
However, when reminded that his predecessors had opposed it, the new CJI said, "You have to be careful as it involves independence of the judiciary. Judges have to be fearless to take fear-free decisions. If they are subjected to any pressure, they will not be able to take any decisions."
Asked if the provision for complaint against erring judges by any aggrieved member of the public would not open a pandora's box, he said, "I don't think. There are several protections under the Bill." People have faith in the judiciary, he added.
On corruption in the judiciary, he said it happens even in the UK and the US systems. On the Indian system, he said, "the system is working well and people are happy with it."
On the issue of transparency in the judiciary, he said India followed the English system and we could not follow the US system where judges were political appointees.
He said the current system of selection and appointment of judges of the High Courts and the Supreme Court was working well.
Death penalty and anti-terror law
Maintaining that death penalty does act as a deterrent, he said we should think whether we are mature enough to do away with it. Justice Balakrishnan, who had maintained the capital punishment awarded to two baby-killer sisters of Kolhapur in Maharashtra last year, said the issue should be considered in view of the current scenario.
On having a new anti-terror law after the repeal of controversial POTA, he said it was for Parliament to consider whether to have stricter anti-terror laws. "The government may be knowing well the type of terror problem we have to face," he added.
On the Supreme Court adopting a strict approach on PILs, the new CJI, who headed the bench that dismissed PIL filed by Bihar Deputy Chief Minister Sushil Kumar Modi against Railway Minister Lalu Prasad in the fodder scam case said that there was already a mechanism to check vexatious litigations. He, however, said that the mechanism of PIL has served its purpose in many areas.
Hostile witness menace and witness protection programme
Justice Balakrishnan suggested that the menace of witnesses turning hostile could be tackled to some extent by recording the statements of important witnesses before a Magistrate under Section 164 of Criminal Procedure Code.
On the protection of witnesses, he said due to various reasons including the lack of adequate number of policemen, India could not afford the kind of programme that was in vogue in the US where the complete identity of the witness is change and he/she is rehabilitated somewhere else.
On reversal of trial court verdicts by High Courts
On the recent reversal of trial court verdicts of acquittal by the Delhi High Court in the Priyadarshini Matto and Jessica Lall cases, he said there was nothing new about it. It happens in almost 10 to 15 per cent of the criminal cases.
On pendency and vacancy and his priority as CJI
The new CJI said reducing the huge pendency of cases across the country at various levels would be his main priority. He said lots of undertrials were languishing in jails due to this problem and many of them were so poor that they could not afford to arrange sureties for them.
On delay in probe and trial in corruption cases
He said it was because in almost all the corruption cases, people were demanding a probe by the CBI, which usually examined a large number of witnesses during the investigation.
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