80–90% judges are bureaucratic; nobody is dudh ka dhula: Justice BA Khan

Justice Bashir Ahmad Khan is a former Chief Justice of the Jammu & Kashmir High Court. He also served as Acting Chief Justice of the Delhi High Court and judge of the Madhya Pradesh High Court.

In conversation with Bar & Bench' s Ummar Jamal, Justice Khan speaks on infrastructural challenges faced by courts, corruption in the judiciary, the conduct expected of judges and more.

Edited excerpts follow.

[Watch the full interview here]

Ummar: In 2024, Justice Gita Mittal voiced concerns over the inadequate infrastructure of the J&K High Court. Do you think such deficiencies impact the justice delivery system?

Justice BA Khan: Lack of infrastructure is not an issue limited to Jammu and Kashmir. It's an issue which is there, confronting the institution at the national level...It all depends on whether your Chief Justice is dynamic. If he is, then he can get the requisite things done. But mostly, you see that Chief Justices come from outside, and they go on leasing their time here, and so they don't focus on the requirements of infrastructure, nor do they care to assert to get requisite funds, because funds are to be given by the government. Now, unless you compel the government to give you funds...for example, the infrastructure which I created in my time was not done for about 20–30 years. I remember a block of the High Court, which I ultimately discovered was pending for 20 years. That was because of inaction...

...If you talk in terms of budget, the judiciary has a minimal budget. It's in the national budget and the state budget also. It is being treated as a no-priority. Judiciary is a no-priority as against the government, which is the executive branch, and the executive branch is holding the purse...if you have to make the judiciary actually independent, then it must be enjoying its own financial jurisdiction and financial domain.

Ummar: With e-filing and virtual hearings rising post-COVID-19, do you think greater technology adoption will improve access to the courts?

Justice Khan: Technology will help only when you have a basis created for use of that technology...We were given training in Delhi in computerisation. None of the judges took it seriously, and none of them, except Justice Madan Lokur, knew what to do with it. So, if you use technology, the waste of time caused by physical appearances and all those things will stop, and it will facilitate the quick disposal of cases, only if the judges are trained.

Ummar: The J&K government has finally approved the establishment of a National Law University. Do you think existing legal institutions in Jammu & Kashmir have been able to provide quality education? How will the new National Law University transform the region’s legal education landscape?

Justice Khan: Legal education has not been satisfactory, and not only in Jammu & Kashmir. I was a part of this revival of legal education at the national level. The National Law University at Bangalore (NLSIU) was the first which was established at that time. Justice AM Ahmadi, who was the Chief Justice of India, was leading the campaign for legal education because it had come down to a level where, if a student would not get anything anywhere, he would ultimately seek admission in some law college and come out with a certificate and then go to the court.

That is how this five-year course started. And first, it was established in Bangalore. Then we had a number of quality institutions...

...If your faculty is not good enough or competent enough, your product is not going to be good enough. I’m not talking of private colleges here, because those are only fulfilling a formality. So, that way, you can’t expect that from a private college in Jammu & Kashmir...

...Second is that the education given in such institutions is unrelated to the field of litigation in the courts practically. For example, if you study in a private college here and if you go to the court and if somebody asks you, “Please draft this application for me,” you will not be able to draft because you have not been told how to do it.

Ummar: What is your take on the Justice Yashwant Varma controversy? How much of a reality is corruption in the judiciary?

Justice Khan: Corruption is something which necessarily nobody can detect at the time of appointment. Yes, we take care of going through his records. There are agencies like Intelligence Bureau (IB) and others who go and investigate, but their investigation is also faulty...

...corruption is something that exists. I have said it in many debates and interviews that it will be unrealistic to say that 'no, no, we are dudh ka dhula (pure as milk)' and all that stuff. Nobody is dudh ka dhula, even in the judiciary. (Former Chief Justice of India) Justice SP Bharucha once said that it is 20%; some say it is 50%. But the fact of the matter is that corruption exists in judiciary in varying degrees.

Now, I don’t know how this truckload of cash came into this judge’s house and how it was set on fire and how it vanished suddenly and why no FIR was filed at that time, why the police did not act; these are all mysterious things. And ultimately, they justified it in the name of the independence of the judiciary: “Oh, if we had acted then, it would have harmed the independence of the judiciary.” That’s a bakwas (nonsense) argument.

But in Justice Varma's case, I was satisfied that the Chief Justice Sanjiv Khanna acted according to the rulebook. See, we have no accountability law existing at this time. The only law we have is the Judges (Inquiry) Act of 1968. This comes into play when a judge is under impeachment. Now, Justice Varma’s case should go to that inquiry under that Act. If they are dispensing that inquiry, that is going to be a flaw, a legal infirmity which Justice Varma can challenge tomorrow because this gives him an opportunity of being heard.

Ummar: What are the qualities that a judge must embody to uphold the independence of the judiciary?

Justice Bashir: I repeatedly say that a judge is a human being; he comes from the same place, same society. You are a lawyer today; tomorrow, you’ll be a judge. So why should I expect that you should be angelic? Now, broadly, the qualifications a judge must have first is his honesty and integrity. Then his knowledge of law...he must be fair and impartial. You can’t be a judge subscribing to an ideology like that of (Allahabad High Court judge) Justice Shekhar Kumar Yadav - condemning a community or attacking a community. How can that happen? When you subscribe to the oath of a judge you, owe your allegiance to the Constitution. You cease to be a Muslim or Hindu...Every person, up to the point of appointment, may have whatever ideology, but the moment he takes an oath, he has to shed all his past...

...You know what is the biggest problem in the judiciary today? The biggest problem is lack of judicial approach, lack of judicial attitude, lack of judicial compassion. These have to be in the candidate. If you have a candidate like a bureaucrat who gives tarikh (adjournments), then what are you selecting?

Now, if I dismiss 10 revision petitions in a day, I’m a good judge? He may be a very 'fast-moving' judge...But nobody knows whether he is doing justice by doing that or not. Whether he is getting hold of the aggrieved person’s issue or not - that is non-existent.

Ummar: What are some of the reasons why pendency figures are only growing? What role do judges play in alleviating the situation?

Justice Khan: 80–90% judges are bureaucratic. They move the file from here to here. Just as in a secretary, you’ll find file moving here and there, and if you pay somebody something, then your file will go from one table to the other table. Judges are not bureaucrats. They have to do justice...you are getting your salary only for that. You are not getting it for listening to Queen’s English from a big lawyer.

Lack of infrastructure is another problem. I have seen my subordinate courts, where civil judges are writing judgments that take them five hours only because they don't have a stenographer. In that five hours, they could have disposed of five cases. They don’t have a place to sit. You’ll see in most of the states, you have some 50% subordinate courts working in tenanted premises. In Madhya Pradesh, I saw a civil judge sitting on a cotton box because he had no chair.

Similarly, shortage of judges...Even if you increase the judges’ population, it’s not going to get rid of the problem because unless you change their attitudes, what problem will get solved? I had suggested that you have some few thousand retired judges just now, and last time, there was a proposal that they should be appointed as ad-hoc judges. You can have most of the things cleared by them — engage them for one or two years.