New Delhi: Former Supreme Court judge Sanjay Kishan Kaul on Friday in an exclusive conversation with ETV Bharat, said no doubt the government is nursing a grudge against the judiciary while speaking on delay in the appointment of judges.
Q: In the collegium system, judges appoint judges and the government does not have a major role in the appointment process of judges. Do you think the existing system of appointment of judges is transparent enough? Or, some more steps could be taken?
A: No system is perfect, a system operated from 1950 to 1990s. It worked but at some stage it was felt that there was a need to change the system and the collegium system came into being and it worked for many years but there is a grudge of the political system that their role has been reduced. But with more majority governments coming into power this is a festering problem. When the National Judicial Appointments Commission (NJAC) Act was passed, it had the consensus of everybody. It got quashed for whatever reason, it is something the political class has not been able to get over and the consequence is that post NJAC being struck down, the working of the collegium of the system, I believe, has faced many problems.
Endeavour has been made to make it more transparent but transparency is not sitting in a glass house and making appointments. At times people do not understand how the system (collegium) works. Three members, three judges headed by the Chief Justice of a High Court recommend the names of the High Court judges. We discuss it with other judges, I would, then talk to some members of the bar. Take all inputs to the collegium, have a pool of talent and from that pool of talent you make a choice. After that process, governments, state and central, and intelligence bureau (IB) opinions come, sometimes there are complaints made and those are collected. Some kind of chart is prepared and what each person has said and what is their view. Then the collegium scrutinises. So, I really do not know what kind of greater transparency in the system which is needed.
Q: You have handled a case raising the issue of delay in the appointment of judges, at any point in time did you feel the government was nursing a grudge against the judiciary because NJAC was buried (the Narendra Modi government, after coming to power in 2014, got enacted the National Judicial Appointments Commission Act)? Delay occurs in all the aspects associated with judges (transfer and appointment)?
A: I don’t think there is any doubt about it. It is quite apparent. They have been commenting, different political systems have been commenting that when we brought a law into force, they (judiciary) quashed it. That is the grievance they have. It had certain problems, the way the law was framed – there were some pre-discussions to the law, where a slightly different system or nature of composition of the committee of five was envisaged which increased to six. It created a scenario that even if three judges were of the same view the other three could block them because it was by majority. Should some priority should have been given to the CJI’s (Chief Justice of India) view, appointments should have been made immediately thereafter. Result that when it was quashed it was said that it will hit the basic structure doctrine because judicial independence will be affected. Now, maybe in hindsight it (NJAC) could have been kept pending to see how it works or tweaked in the right manner. I still believe it could have been tweaked and it did not happen…the political dispensation could not get over the fact that they will not have the kind of say they believe they should have.
Q: In March this year the apex court passed a judgment saying that a panel consisting of the Prime Minister (PM), Leader of Opposition (LoP), and the CJI must select the Chief Election Commissioner and the Election Commissioners. But the government brought a law against the judgment, and it will continue (differences between the government and judiciary) and nothing will stop the government from going against the judgments?
A: It is not going against the judgment that judgment itself envisaged that it is filling a vacuum. They (government) say ok, you filled the vacuum, now we are implementing the law. So, on protection of women the vacuum was filled and the law was brought. There is a similar pattern. What is happening is that names (of judges for appointment) are getting stuck….the seniority gets disturbed as some people are taken and some are not. Even today, four reiterated names (by the collegium) and 13 first time names, which have not even come back (from the government), do not even know what objection the government has to them, 6 transfers (of judges). All this is pending.
Q: You tried to build a bridge between the government and judiciary while handling the case related to delay in appointment of judges. Do you think the new judge, who takes up the case, could build on it or otherwise it will have to start from the scratch?
A: The petitioners kept on pressing to issue contempt notice, let us understand where it will go...if the President doesn't issue a warrant of appointment what will be done, there are many legal nuances and complications of it. The judiciary does not have a stick in its hand, it is respect for judicial view and its implementation…..the Attorney General was appearing, there was some progress and not the full progress. I thought that was the better method of pushing the agenda further.
Q: Getting good people as judges was also one of your functions (while being part of the Supreme Court collegium). Is it wrong when a Judge recommends a candidate for judgeship, isn't it natural?
A: Nothing wrong with it at all, that is logical. It is a consultative process. It is not that the chief (CJI) alone does it. I have been Chief of a High Court, other judges make suggestions, we would debate it. So, there is nothing wrong with making suggestions and the name has to pass the process and it has to be on merit, when I came to the collegium, I suggested that judgments must be circulated, it was an objective criteria that is being followed, some times there is a perception that this name may not get through government, or there is a strong opposition to the name. It is natural, at times good candidates have got sacrificed in the process, I believe.
There was a particular case during CJI Ranjan Gogoi's tenure. He said if you get his consent, I will make sure if he is under 45 years he will get through and we will send him to Delhi. I could not persuade him (the candidate for judgeship). There is nothing wrong in suggesting a name but there is no reason to put pressure on collegium.
Q: You have said that the nature of disputes which are political in character should not come to the court, which need to be debated outside the court in the political sphere, and they burden the judiciary? Such kinds of cases will continue to come to the court…what do you advise judges?
Answer: There are issues which have legal ramifications, they may have a political character. They may be debated in court. A judge's mind is trained to decide a case in accordance with law.
Question: On your farewell you said that judges should be bold..
Answer: Yes, I feel we sometimes criticize bureaucracy because unnecessary litigations are generated or they do not take a decision, they do not have constitutional protection……tendency is to throw it to the court then we will see what is to be done.
I have ruled in many ways where the so-called liberal part of the society will support what I have ruled. The other time when they were not very happy with the way I ruled. I ruled in a manner which was proper ... .if I ruled in Rafael (Rafael fighter jet deal) that is my view in contractual matters consistently. Consistency is what I do, because the government is involved I cannot be inconsistent…..the litigant still comes to court despite all these issues, if he didn't have any faith he would not have come. If he comes, we must justify his faith.
Q: Courts have flagged that legislation should not be passed without proper debate. Legislations such as CAA (more than 200 petitions filed opposing Citizenship Amendment Act), NRC, Article 370, all landed in court....
Answer: That is certain there are certain issues, where there are divided opinions society is a lot divided today, they are world over. Everything goes to court that is a problem. The law enactment is with the government. When the majority government rules for quite some time they have their way because they control the Parliament. That is where I say, we can test it legally but you cannot say that I am not able to as an opposition perform my role because we are too few in numbers so you (court) do that, no! Of course, in a stronger government the judiciary's role becomes higher I would say because the Constitution envisages it as a check and balance role.
Q: When there is a brute majority, people who support the minority government come to the court and often say democracy is in danger….
A: Whoever in power, historically, feels that we are elected representatives and we have the mandate of the people, which counts, and let us do our job and do not interrupt judiciary's job is to check and balance. I have quoted earlier that I distinctly remember justice Sabharwal’s (CJI Y. K. Sabharwal) views that in an informal discussion he had said that mild tension between the government and judiciary is good for the system, if things are very hunky dory then there is a problem.
Q: Sometimes the court's view may tilt towards the Opposition. How should courts examine such issues?
A: It is not the judges' job to support or oppose anybody. Sometimes views taken by the court may be in sync with the ruling dispensation, sometimes not in sync.
Q: If there were a NJAC 2.0 in the future, what would you say?
A: Nothing prevents the government from bringing another version of NJAC. But, if the earlier law was struck down, they have to take care of what caused that law to be struck down, so it is not repeated, so those concerns have to be addressed.
Earlier there was a debate on the law, yet it was quashed. The law (NJAC) brought into force was little different from pre-debates. Now, if that is the position we have to go back to….this problem needs to be resolved….if you don't recognise the problem, there won't be solutions.
I will work under the law and I will implement it. I will see to its implementation that it is the duty of the court because that is the law of the land. But that does not mean there cannot be change of the law of the land by a legislation, which means the approval of the judiciary and address the concerns which caused its fall in the earlier period.
