In this Idea Exchange moderated by Maneesh Chhibber of The Indian Express, NHRC chairman and former Chief Justice of India KG Balakrishnan speaks about judicial overreach and judges being appointed to government posts

Manu Pubby: Of late, there have been many cases dating back to the nineties that have resurfaced, especially in Jammu and Kashmir. What is the role of NHRC in such cases?

As you know, J&K has a special status and so there are a very few areas where we have jurisdiction. But within this limitation, we are trying to look into cases from there.

Maneesh Chhibber: Why is it that the J&K government is not keen on allowing NHRC to take up cases of alleged human rights violations? Why is the government so jittery?

It has filed a petition before the High Court of J&K and the court stayed some of the cases pending with NHRC. In some other cases, the government was willing to pay R5 lakh compensation to the next of kin of those killed. NHRC demanded proof of the payment on paper, but the state had some issue. Wherever it could, NHRC has engaged a senior counsel to contest these cases. There was one case in which some political leaders wanted to go to Srinagar to hoist flags and they were stopped by the state police. After we took over the matter, the state government filed a petition in the court and the court issued a stay order. In another case, a man was beaten to death and we had ordered compensation. We are not interfering with the police but this is a human rights violation. We directed the government to pay R5 lakh as compensation. Let us see what happens in those cases.

Rakesh Sinha: There is a high level of distrust between security forces and rights activists. As NHRC chief, how do you reconcile or lower this distrust?

As far as security forces are concerned, we have some limitations. We usually don?t interact directly with the military. We ask for a report from the ministry of home affairs. But in some cases, we have ordered compensation and the government has paid compensation. The problem is that in J&K and the Northeast, special laws are in force (AFSPA). In the case of human rights violation, if there is a death or someone suffers or has been tortured, the government pays compensation.

Coomi Kapoor: Arun Jaitley recently said that judges should not accept any government-appointed posts for two years after their retirement. How do you react to his statement?

The issue is that as per parliamentary legislation, there are tribunals like the Green Tribunal, bodies like NHRC. All of these have to be manned by judges. I don?t think that after two years, any judge would want to take up these jobs. After two years, they would have settled down. Most of the Supreme Court judges are employed in huge arbitration cases. I don?t think they would be available after two years.

Amitabh Sinha: The larger argument made by Jaitley and Nitin Gadkari is that towards the end of their tenure, judges openly hanker after post-retirement jobs. They lobby for them. Is this the case?

I don?t want to contradict any senior political leaders but it is not like that. On many occasions, we find it difficult to even get judges for post-retirement jobs. So many posts are lying vacant. Where are the judges?

Amitabh Sinha: But the number of positions a judge should be appointed to has been extended. For example, to say that only judges or judicial officers should become information commissioners has increased the number of positions judges can be appointed to. If there is a scarcity of judges, why increase the number of positions judges can be appointed to?

I do not want to comment on this issue. I am also holding a constitutional post so it would be wrong of me to speak on this.

Shyamlal Yadav: As Chief Justice of India, you started a dialogue with the media but why is it that during your tenure, the judiciary was worried about RTI?

The matter is pending before the constitutional bench. My stand was that under the RTI Act, any information that is accessible in the office under the law will be passed onto the applicant. Information which is not accessible under the law will not be passed on. For example, no judge of the high courts or Supreme Court is bound by any law to furnish information on asset declaration though most of them have declared their assets after the resolution passed by the Supreme Court.

Shyamlal Yadav: But so far, judges of only eight high courts have given their declaration.

No judge is bound under the law to give such a declaration. So whatever information is with the Chief Justice is there because of the resolution passed by the judges themselves. The information on assets was not collected by the chief justice under the law so we are not bound to pass it on to the applicant. This is what we have contended. But then, the Delhi High Court held otherwise. Since an appeal is pending, it would not be proper of me to say anything.

Unni Rajen Shanker: What kind of relationship does the NHRC have with state governments? In the ISRO spy case, former ISRO scientist Nambinarayanan was awarded a R10 lakh compensation and the state government appealed against it.

In 99% of the cases, the state governments accept our recommendations. We order compensation in many cases. Sometimes the state government says that so-and-so officer was responsible for human right violations so he should pay this amount. In Kerala, the government filed petitions. One case is still pending before the High Court. The state had announced that within half an hour of a telephone call, it would make an ambulance available. So this woman made a call but no ambulance came as no vehicle was available. Her husband, a police driver, died because he could not make it to the hospital in time. We ordered R50,000 as compensation to the widow. Surprisingly, the government went to the court for a stay.

Dilip Bobb: Do you see areas where you would like more powers for NHRC?

No. All over the world, bodies like ours are recommendatory so it is a question of whether or not the recommendations are accepted. It is a question of our credibility. I don?t think any government will refuse to pay compensation if the case is reasonable.

Shishir Tripathi (EXIMS)*: Over the last few years, there has been considerable debate over judicial overreach. What do you think about it?

In some cases, the administrator can say that in a particular decision, there was judicial overreach or that the judges exceeded their powers. But in India, USA and many other countries, political decisions are also taken to court in one form or another so the judges are bound to take decisions on important issues. I do not think it is a serious problem. It?s not as though all the judges are making decisions to overpower the government.

Shikha Sharma: State human rights commissions exist in 21 states. Why have they not been set up in other states? What is being done in states like Haryana where we?ve seen a spate of violence, especially against women?

Haryana appointed a search committee to find a chairperson for its human rights commission. The problem in many states is that state human rights commissions have no chairpersons, which is why they are not functional.

Coomi Kapoor: What is your view on the appointment of judges to the higher judiciary? Do you think it should be left entirely to the judiciary or should other people be involved in the process?

There is nothing wrong in involving others. I was Chief Justice of Gujarat. I had consulted the advocate general and some senior members of the bar on judicial appointments. This was done informally. The Chief Justice can discuss the matter with the chief minister and others. This is part of the process.

Maneesh Chhibber: You had red-flagged issues like the endosulfan poisoning, silicosis and the mental health of prisoners. You have held meetings and you have been to states such as Gujarat, Assam and Orissa for open hearings. What happened after the meetings?

India being a large country, many people do not know how to approach the state commission or the national commission. So we decided to have open hearings in the states. We have been to Tamil Nadu, Gujarat, Rajasthan. Now we propose to go to Maharashtra. We get a large number of complaints. In Tamil Nadu, we got 1,200 complaints. Out of them, 300 were serious matters. We issued notices and in several cases, the state government paid compensation or redressed the grievance even before the case was taken up for hearing. We are thinking of having at least one hearing per state. In the endosulfan case, we visited Kerala. It has affected about 13 villages. Our team visited several villages and found that many people are seriously crippled and are unable to move. We saw photographic evidence. We ordered compensation. Now the state is willing to pay.

Unni Rajen Shanker: But is there enough scientific evidence to prove that the persons are victims of endosulfan poisoning? Endosulfan has been sprayed in other places too and nothing has happened there.

There was aerial spraying of endosulfan for about 10 years in the Kasargod area. The aerial spray was near the water bodies. There were rivers, ponds and wells and many water bodies in that area. In such places, you should never use aerial spray. The insecticide has been found during soil-testing and water-testing even now, though the spraying stopped about six years ago. But ultimately, it is for the experts to find out what is the reason for the poisoning.

Shyamlal Yadav: From which state has NHRC received the most caste-based discrimination complaints?

Mostly cases have been registered from Madhya Pradesh, UP and Rajasthan.

Prashant Dixit (EXIMS): Recently, Om Prakash Chautala said that girls should be married at the age of 16. Do you think this is correct?

These are all deliberately made statements. There are several factors involved?birth control, and that women need to attain proper maturity to run a household.

Shyamlal Yadav: The judiciary is the only government office after schools and colleges with winter and summer vacations. With about 35 lakh cases pending in high courts and the Supreme Court, isn?t it time to curtail the vacations?

Do you know the workload of a Supreme Court judge? About 30 to 40 matters come in every Monday and Friday. How are they to get time to read all of them? But two-three judges work even during the vacations. It?s not as if we close down the shop and walk off.

Tushar Kulkarni (EXIMS): The Cabinet had cleared the Manual Scavenging Prevention Bill. Do you think the new law can bring in change?

It is a serious problem. To a great extent, we have been able to abolish it. Now there are no dry latrines but manual scavenging is still prevalent.

Ifrah Mufti: Section 124(A) (sedition) and Section 309 (attempt to suicide) of the IPC have been severely criticised by several human rights organisations. Do you think we should revisit them?

The law on sedition was drafted by the British. There?s nothing wrong in modifying it. Or changing to some extent the definition of sedition. But on the attempt to commit suicide, I am not in favour of the removal of the section. It is there to give a message to society that this is a crime, please don?t do it. So if we can save even one person from death, that is good. Courts are taking a very lenient view of such cases. But the problem is with the police. They unnecessarily harass the citizens.

Viddhi: You said earlier that judges wouldn?t want to take up government jobs after a cooling period of two years? Could you explain?

Justice Raveendran?s name was suggested for the Green Tribunal. Even after his consent, the order was not issued for about seven months, so Justice Raveendran said he didn?t want it. He wanted to go home. After two years, who would be bothered? A judge may have arbitration work. Most of the judges get arbitration work. I think 90% of Supreme Court judges would not like to come back and accept a job in a tribunal in Delhi after two years.

Maneesh Chhibber: Khap panchayats in states like Haryana and western UP enjoy many arbitrary powers and the support of state governments. They also end up harassing people. Should there be a law to deal with these khap panchayats?

No, there are sufficient laws. If any illegal activity is done by any organisation, it can be dealt with. There is no dearth of laws.

Coomi Kapoor: What do you think of the recent thinking in the judiciary that judges should decide how the media should cover court cases?

I have not read the judgment.

Amitabh Sinha: But can you think of any case where judges were influenced by the media coverage while a case was being heard in court?

If the judge is made of stern stuff, nobody can influence him?neither the media nor any opinion. But sometimes, the media coverage may have had an influence. We can?t say how the human mind works.

Transcribed by Ruhi Bhasin & Shalini Narayan

*EXIMS: Express Institute of Media Studies