'In selecting judges merit should be the criteria, not seniority'

An avid cricket buff, Justice Asok Kumar Ganguly, who retired on the day he and his brother judge pronounced landmark judgment cancelling 122 telecom 2G spectrum allocation licences on February 2, says he always “played with a straight bat.”

He made his mark with several key judgments which include a ruling that Supreme Court violated the fundamental rights of citizens during Emergency in 1975; quashing the allotment of land made to former India cricket captain Sourav Ganguly; holding that illegitimate children are entitled to all the rights in the property of their parents both self-acquired and ancestral under the Hindu Marriage Act, etc. Justice Ganguly, who began as a teacher, became a judge of the Calcutta high court in 1994 and was elevated to the Supreme Court in 2008. He spoke to B S Arun of Deccan Herald on various aspects of judiciary. Excerpts:

You have retired after delivering the historic 2G judgement. How is life after that?

It’s nothing special. For me, it is just another judgment. A judge does not think of the impact when he delivers verdicts. He considers facts of the case, legal position and then delivers judgment. If it has to create an impact, it will.  

Former Lok Sabha Speaker and eminent lawyer Somnath Chatterjee criticised the 2G judgment saying it was judicial overreach. How do you react?

Judicial overreach has been coined recently. It is used by the administration whenever they find the judgment is not in their favour. There is no fixed parameter to describe it. Under the Constitution, judicial review is a basic feature.

It is true that when governments take a policy, court should be slow and circumspect while interpreting it. But it does not mean court should keep quiet if it finds that in the name of policy what the executive intends to do is to violate constitutional norms. In such a situation, as a protector of Constitution and people, courts must intervene.

Justice to common man has become a far cry as mainly rich have access to judiciary. He cannot afford good lawyers in HCs or SC. What is the remedy?

It is true that the access to courts is still difficult. There are reasons which impede common man’s access to judiciary like escalating cost of litigation and time which the system takes to give final verdict. There are various other reasons which contribute to this, one main reason is the poor infrastructure provided by government to justice delivery system. For a country with 1.2 billion population, we in SC have only 31 judges, in HCs it is only 700 posts of judges, out of which 1/3rd remain vacant. This is grossly inadequate and shows a very poor judge-litigant ratio.

We need more courts, judges, better infrastructure. At the same time, judges and lawyers have to play a positive role. Asking for adjournments and delaying hearing a matter is a pernicious practice and should be discouraged. Considering the staggering arrears, judges’ vacation should be curtailed to some extent.

Over the last few years, we have come across cases of corruption in judiciary – the Justice Dinakaran case, Provident Fund scam, cash at the door of a judge allegedly meant for another judge of same name etc. How this can be rooted out?

Corruption is a great threat to governance in the country. It has reached such a proportion that it has become a stumbling block to constitutional governance. It is a serious issue. I cannot say judiciary is free from corruption but it is still at a marginal level. But there is no place for complacency. It must be uprooted and strong steps must be taken against corrupt persons in judiciary.

Some allege that the Collegium system of appointing judges is not able to attract best available talent in HCs and SC and that it is promoting favouritism. Does the way of selecting judges need to be changed?

As a system it is not bad. It has been sanctioned by the Constitution and backed by a SC judgement. But every system is manned by human elements and if those who are operating the system are not focussed on real issues, then no system will work satisfactorily. People have a right to get very strong and efficient judiciary. In the matter of selecting judges, special judges of SC and HCs, merit should be the overriding criteria and not seniority.

There are concerns that students coming out after clearing the five-year law course are opting for corporate jobs than litigation. How can top brains be attracted for judicial service?

Law profession today is a closed door profession. Most of lawyers and judges are coming to join with family background. Those who do not have family background like me may suffer.

The fact that I ended up as SC judge is virtually by blessings of Almighty and good wishes of my parents. Many who may be good but who do not have family background of lawyers do not join the uncertain career of law. Here also, question is one of consideration of merit which is ignored in favour of family connections. This should change to attract young talent. All India judicial exams is a good idea.

Judiciary today plays a hugely important role and therefore bright talent should come and join.

What are your views on the Judicial Standards and Accountability Bill which deals with complaints against judges and seeks probity among the judges?

It is a step in right direction. The (National Judicial Oversight) committee the bill provides (to deal with complaints of misbehaviour of judges) must be properly structured so that judiciary’s independence is not compromised. Misconduct in any sphere can’t be condoned to pave way for efficient judiciary. It is a very serious matter. Steps must be taken to eradicate it.