Justice V.N. Khare

Justice Visheshwar Nath Khare was born on 2nd May 1939 at Allahabad. Having a legal background and upon the advice of his father he took up the legal profession. But he never thought at that time that he would, one day, be the Chief Justice of the country. After enrolling himself as an Advocate with the Allahabad High Court in 1961, Justice Khare started his practise. He was the Chief Standing Counsel for the State Government. On 25.06.1983 he was appointed as the judge of the Allahabad High Court and thereafter he took over as the Chief Justice of the Calcutta High Court on 2.2.1996. He took oath as the Chief Justice of India on 19.12.2002. After being in the judiciary for almost 22 years justice Khare retired as the CJI on 2nd May 2004. In his long innings in the judiciary he has many landmark cases to his credit. He has given new dimensions to the criminal jurisprudence in the Gujarat Best Bakery case. The list however, is endless. Justice Khare speaks exclusively to Lawz about his professional and personal life.    

 I Did LLB From Allahabad University

vnkharew1I belong to a leading lawyer’s family from Allahabad.  My father was a Lawyer, my uncle was also a Lawyer and keeping the family trend I also took up the legal profession. I was born and brought up at Allahabad.  I have received my entire education in Allahabad and I also did my L.L.B. from Allahabad University.

My Father Persuaded me to Do Law

My legal background, did influence me to take up law as my profession although I was naturally not inclined to go for law and always wanted to take up some job with the Government.  But my father persuaded me to do law. I would not say, that I never wanted to do law.  Law was there in the entire household.  I was pretty used to seeing clients coming to my father’s office, books all around our place etc. So the general atmosphere, which was prevalent in the household, did have a lot of influence on me.

Initial years were tough, but because of my legal background, I did not face much difficulty.  I started my practice and slowly one by one cases started coming to me and then there was no looking back.

The First Case Which I Argued Got Dismissed

The first case argued by me was before the Chief Justice of the Allahabad High Court.  It was a revision Petition, which I had drafted and prepared myself.  I remember this case in particular not because it was the first case which I argued, but also because, it got dismissed, inspite of my best efforts.  Of-course, it was disappointing for me.  I had thoroughly prepared the case and had also practised my arguments standing before the mirror.  Anyway I was contended with my preparation and did the best I could have done for my client.

I Was Concentrating Mainly On Constitutional Law

In Allahabad, I was practicing constitutional law mainly Writ Petitions filed against the States, statutory authorities, executive authorities or constitutional authorities.  Alongwith this, I had a lot of civil litigation.  I also expertised in election Petitions but did not do much of criminal law.

I always thought Bar Elections to be a Waste Of Time

I was not much involved with the activities of the Bar Association at Allahabad. I never used to participate in the Bar Elections, as I thought it to be a gross waste of time for any busy lawyer.  I always remained away from Bar activities.

Accepting The Offer Of Judgeship was a Difficult Decision

I was offered judgeship of the Allahabad High Court in the year 1982 and I accepted the offer and took oath on 25.06.1983.  I did not accept the offer of judgeship immediately.  I had certain reservations.  I had a flourishing practice at that time.  I think as a lawyer it was the peak time of my career.  It was certainly a difficult decision to take. But my father persuaded me to accept the offer.  He told me that if judgeship is offered, it is an honour and it would be repugnant to the ethics of the profession, if I refuse the offer.  I gave a considerable thought to what my father had suggested and finally accepted the offer.  Of-course sacrifices in terms of money was made by me.    I had a good practice at that time. Judges salary, in 1983 after deductions was about Rs. 5,000/-  per month. I was earning several times more than this as a lawyer.  But money is not everything in life.  I accepted the offer of Judgeship, so that I could do something towards the society.   In the profession, I could not have served the society as a whole.  I think I took a very wise decision by accepting the judgeship.

I was in Allahabad High Court till the beginning of 1996.  On 02.02.1996, I took over as the Chief Justice of the Calcutta High Court. I was elevated to the Supreme Court on 21.03.1997, and was appointed as the Chief Justice of India, on 19.12.2002.lawzmagazine.com

“I held that Flying of the National flag is the fundamental right of very citizen of this country”.

I Tried To Give New Dimensions To Law In Every Case I Decided

As the Chief Justice of India I have decided many cases, and I think, in every such case I have tried to put down something new.  I have tried to interpret the law giving new dimensions. Like in the Best Bakery case (Gujarat Cases) I have given a new dimension to the entire criminal jurisprudence. New dimension in the sense that earlier the situation was that if there is some defect in the prosecution, then ordinarily the accused had a good chance of acquittal.  In the Best Bakery case, I have laid down that if the prosecution is helping the accused, then in such cases, re-investigation or re trial is required to be done.  Now, if the prosecution has colluded with the accused and there are chances of the accused getting acquitted, then the Court can order re-investigation and re trial.  This new dimension I think will help in a fair trial in any criminal case.  This dimension has been given by me, because today in this country the situation is such that no prosecution starts unless the witnesses are won over.  Case would not begin unless this happens.  The defence would linger on the case, unless the witnesses are won over.  Protection is required to be given to the witnesses, so that they can come over to the Court and depose with courage.  Unless this is followed, I think in every criminal case there are chances that the trial may not be fair.

Another case which comes to my mind is the flag code case. In this case the Government was pleading that hoisting/flying of the national flag is not a fundamental right. I have laid down a new law and have held that flying of the flag is the fundamental right of every citizen, which cannot be taken away by any executive decision.  Flying of the national flag with dignity is an expression of right. One has a fundamental right to express himself. So by flying the flag with dignity one exercises his fundamental right of expression. So in the judgement, I have given this dimension that expression is a fundamental right and flying of the flag comes within the ambit of expression. Flying of the National flag is therefore the fundamental right of every citizen of this country.

Time has come that Supreme Court must have Superintendence Power over the High Courts

The major reform, which I suggested, was to give power of superintendence to the Supreme Court over the High Courts. At present, under the Indian Constitution, the Supreme Court does not have superintendence power over the High Courts but the High Courts have the power of superintendence over its subordinate Courts.  In fact, the framers of the Constitution, at that time must have felt  that this superintendence power of the Supreme Court would result in undue interference with the functioning of the high Courts.  But probably they could not foresee that after 50 years, there would be deterioration in the High Courts as well. But now the time has came that this power must be vested in the Supreme Court. Someone must judge even the judges.  Judges after all are human beings and they are not infallible. This was the suggestion given by me by at the time when I was holding the office but the law ministry has yet not acted on this proposal.

“Judges after all are human beings and they are not infallible”

The Court Never Hushes Up The Hearing Of Any Case

In one year, the Supreme Court disposes about 50,000 cases. On a Monday or a Friday about 60-70 S.L.P.’s are decided by each Court. But this does not by any chances means, that the Court has hushed up the hearing of any case, and injustice has been caused.  On Friday, we get all the files of cases listed on Monday.  We intensely study these cases for 3 days before they are taken up on Monday. We prepare our notes and fully go through the pleadings. We then short list the question of law which is required to be examined by us.  On that point, we issue notice, else the SLP is dismissed.  In the Supreme Court the practice is very different.  We do not require the lawyers to go through the entire paper book.  We short list the question of law and if the lawyer is able to plead his case properly on those points then of course we give indulgence. All the judges in the Supreme Court are experienced. They know the law and can apply the principles of law to any particular case and decide accordingly.  We do not come to the court with a pre-made mind, but we are thoroughly prepared with the case.

The Appointment Procedure Of The Judges Is By Enlarge Okay But Is Too Lengthy And Tedious

There are two methods of recruitment of judges. The first one being elevation of exiting judges from the subordinate judiciary to the high court and the other by appointing advocates as judges.  33% of the posts in the High Courts are filled in by elevation of judges from subordinate Courts and about 66% is filled by appointing advocates from the Bar.  Chief Justice and two senior judges recommend the name of the judge of the subordinate court or the advocate, to the State Government.  Upon receiving the recommendation a local investigation is conducted about the said person whose name is recommended.  This report is then sent to the Home Ministry.  Home Ministry then makes another inquiry through the Intelligence Bureau. The Intelligence Bureau’s report is forwarded to the Law Ministry.  Law Ministry then puts its comments on the said report and forwards it to the Chief Justice of India. The collegiam of the Supreme Court then makes an inquiry on such recommendation from other judges. The Collegiam comprises the Chief Justice of India and the three senior most Judges of the Supreme Court. Thereafter the Supreme Court sends it recommendations to the Government. Law Ministry then forwards this recommendation to the Prime Minister. Then another inquiry at the Prime Minister’s level is conducted.  If the Prime Minister approves the name then the matter is sent to the President for his assent. In case the Prime Minister does not approve the name, he sends it back to the Collegiam of the Supreme Court and the Supreme Court again makes an inquiry on the issues raised by the Prime Minister. If however the Supreme Court in its report states that the Prime Minister’s or the Government’s view is not correct, then in such a case the recommendation of the Supreme Court is binding on the Prime Minister.

I think this procedure is too long and tedious.  It can be cut short, if some investigation agency is also provided to the Supreme Court. We can conduct inquiry at our own level and accordingly forward our recommendations.

Am Pretty Satisfied What Life And Profession Has Given To Me

I am pretty satisfied with my professional achievements.  But there are many things which are still to be done.  Law is like an ocean.  It is endless and many things are still to be tackled. Many things still remain to be streamlined.

A Judge Must Never Be Very Desirous Of Having A Lavish Life

I think a judge should be a good person at heart.  It you are good at your heart then things became easy. He ought to be humble and should have a strict integrity. He should to be straight forward and courageous. There should be no pressure in his mind while working. He should keep a low profile and should not be very desirous of having a lavish life.

I Never Got Too Much Time For Myself

Pressure of work is always there and we get little time to relax.  Whenever I used to get time, I used to attend to my wife, who had been disabled for the last 18 years. Unfortunately she expired last year.  Most of my time was spent taking her care. Even still if I had time I used to relax while listening to music.

I Was In A Judicial Prison For 22 Years And Have Recently Got My Liberty

I have recently retired from the judiciary after serving for about 22 years.  As of now, I have not thought of anything, as to how to spend my retired life.  I want to relax for about 2- 3 months. It was like, I was in a Judicial prison for 22 years and have recently got my liberty.  I want to relax first then plan for the future.

-LawZ Bureau

This interview was published in LawZ,  June 2004 issue.

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