Do you think that there is a trust deficit between the judiciary and the government?
Perhaps never before in recent history, and perhaps not in the history of independent India, have government-judiciary relations been brought to such a nadir. And the Chief Justice is really only expressing in a mild way what is an open secret. I am one of those who believe that the judiciary itself need not have opened this door wide on the Memorandum of Procedure issue by putting it in the judgment, although I believe it was a bona fide exercise to try and make the consultative process wider. But sometimes bona fide initiatives can be a self-inflicted wound. Now to misuse it for delaying tactics, blackmail tactics, obstruction tactics is completely wrong and unacceptable. See, you may agree or disagree with the NJAC, that’s a very valid point in a democracy, but after the judgment, there is no question of using the backdoor by stealth and by deception to circumvent that judgment in this manner. And that is, unfortunately, what’s happening. For example, the irony is that I spoke in Parliament as a lead speaker on the NJAC and I supported the bill. So I am against the view that the collegium should rule for all times. But that is not the point at all. The point is that once the Supreme Court has ruled that the NJAC Bill is unconstitutional and the collegium will decide, then for the government to come to a situation where by sheer delaying tactics there are 440 vacancies created… In a country of 1.3 billion people, with a litigating public of 500-700 million, a total strength of hardly 1,100 in the high courts, and this goes down the line when you are resisting appointments of 440 high court judges. It is a very serious thing.
Isn’t it wrong to put the government under pressure? Because it is the judiciary which assigned the job to the government.
Fractionally I agree with you, largely I disagree.
The judgment says that both will decide. You can’t interpret the MoP in a manner that the collective decision-making is nullified. What is the dispute today? The dispute is that any name I get, you may disagree with. If you accept this principle, then you might as well hand over the appointment to the central government. The MoP was intended as a rational, reasonable door, not as a catch-all residuary provision which is subjective. For example, if I am able to point out that A has got this virtually proved case of misdemeanour, she is charged in this manner, she has integrity issues with these specific details. That is okay, that’s always the practice. That is what the MoP has intended — it was practised earlier also without the formal document called the MoP. The government will point it out, the collegium is obliged to consider it. It will consider it because they don’t want to be caught on the wrong foot that after A is appointed somebody points it out. But that is very different from saying that I have got 20 names, 70 names, 10 of them I say should not be considered on national security grounds. So the devil… and God both lie in the details. This is a detail.
The appointments have to be in a “reasonable and rational way”. The government thinks its interaction with the judiciary is reasonable and rational.
Reasonable and rational means objective-specific criteria. What the MoP contemplates is that if you have specific factual inputs about the unsuitability of a recommendee, then you should let the judges know and then they will accept or reject, and they will probably give reasons. Look, one, the ultimate decision has to come out from the collegium. Second, it does not bar valid, objective factual inputs. Third, national security is not a factual input. National security is a general, catch-all phrase. Will you in the next step start disclosing all the national security considerations about a person?
But the government can legally argue that MoP has been assigned to it. No, if you read the judgment carefully, it doesn’t say so. Let me share my fear and my apprehension because I have the somewhat privileged distinction of being inside all three organs, The result of this is going to be that you will have another NJAC bench sitting and the judiciary clarifying that the MoP does not mean this. My fear is, that another eight months or six months will go for that hearing. And the last time the judges made a mistake — in fact I accuse them of mistake — that they unnecessarily said that while the hearing is going on the appointments are at a standstill. The result was that in nine months of hearing, you had this accumulation of 440 vacant posts of judges. I hope to God that it doesn’t happen in the next round of NJAC because it will require judicial verification.
Your party is being accused of a little opportunistic stand now. You now fear NJAC, your own baby. Congress voted for it. You have a problem with MoP under which the government wants some say, when you once voted for a larger voice of government…
No, it cannot be like that, you cannot have a situation like neither fish, nor fowl. Na idhar ka, na udhar ka. Margaret Thatcher said that when people are trying to stand in the middle of the road, they have a real serious danger of being knocked down by traffic both from the right and the left side of the road. So, the NJAC was a structured bill with specifics. I supported it principally for the reason that the collegium has been seen to have partially failed at least, and the earlier executive monopoly for appointment had also failed, which was replaced with the collegium. My argument in Parliament was that this is a new system and it deserves a try… You can’t equate that with the MoP. You cannot say that because it was a structured bill which was struck down by the court, and once it is struck down… you like it or not, you lump it… I am not calling the MoP, NJAC by another name. The NJAC has a detail, it has a procedure, it has a system, and therefore I think the crucial point is that the MoP which is a bit of a self-inflicted wound is intended only to allow inputs to come into the collegium. That’s the long and short of it… And why call it national security? You have to simply say that for these reasons I have fined A because he has got relatives in Pakistan with whom he is regularly interacting. Is that a threat to national security?
In preparing the MoP, there is a difference of opinion on the issue seniority versus merit.
There are systems established, you cannot change it unless you abolish the collegium that you have tried and failed. In all India appointments, seniority does not matter. There are any number of instances — Justice Lahoti came to the SC before Justice Sabharwal from the same Delhi HC. Justice Chandrachud Senior came from Maharashtra, although he was a junior to Justice Bhagwati who came later. In the appointment of CJI, seniority has to be the only criteria.
Hut how will the government or the people get to know that no corruption or favouritism has taken place?
I agree, if there are objective facts then a limited part of the collegium and one or two people designated should share the information. They can say that there is corruption, or something… The government even today has frequently said that all the names are good, but we believe so and so should not be appointed.
If any reason is published for not promoting a judge, then his/her tenability will be questioned. If they are not good for the SC, why should they be good for an HC?
Say if the collegium chooses the fifth senior judge of HC and the first four are not chosen, then the government has the right to say that number two should be chosen, not number five. It has a right, even in the old system. But now, to say that you must have a reason for sake of transparency, then I would say that the Chief Justice and the law minister should discuss the reason on telephone.
But not make it public?
You see… judges rule the country by the force of moral authority. And if you personalise this in a file, are you not harming the institution? I am therefore making a nuanced approach — discuss by all means. I am even going to the extent of saying the Prime Minister, Chief Justice and Law Minister can talk.
But then the two sides distrust each other…
Now, that’s the problem. We cannot change two things: one, the final word under the judgment has to lie with the SC collegium. The government is not the appointing authority, unless you get that clear, things won’t move. The government is only the input giving authority. Now I agree with you that transparency has to be there — a meeting or a telephonic meeting between the PM, chief justice and law minister, and fair exchanges. But I don’t agree with the second part of the transparency that you must make a full note, that note will go down to a joint secretary, it will be thrown in the press, that man will be made a cripple before he comes to the SC, both the man who comes and the man who does not come.
What’s your view on a secretariat or a committee to help the judiciary get information?
I believe they should have secretarial assistance, investigative personnel, research scholars, fact-finders, but I would add a very strong word of caution that this secretary should not again be a way of me controlling you. It has to be under the SC. You see, review the judgment, under the judgment, that is why there is mistrust, the judiciary rightly believed that this is a way of scuttling the independence because through the secretariat you will control everything. A joint secretary or a secretary of the government under the law ministry can start deciding the appointment power of the judiciary.
Arun Jaitley has said twice in Parliament that why cede the ground of legislature to the judiciary. Do you agree with that?
Yet you are supporting judiciary on MoP.
The question is application. The devil and the God lie in the details. The question is applying that principle. Standing up means you pass the law. You fought the matter for one year in court, you lost the battle in court, thereafter you cannot find another way of getting around it. You have to learn to accept defeat with grace. Aggression, threats, table thumping, overkill, inflexibility, obstinacy — defining adjectives of government’s relations with judiciary.
The Left issued a statement that no delay should be made in the appointment of judges, that the BJP government wants to control judges at several levels.
I agree 100 per cent This is an indirect form of control… They are just delaying. And the CJI was forced to speak
The government may be thinking let the MoP made ready first…
Let us assume, suppose the MoP is not ready…
Why should it not be ready?
MoP being ready depends on everyone, no? Let us assume that we both are wrong. There is no agreement on MoP for 6 months. Will we stop appointments till then?
But can the country appoint wrong judges?
Therefore in those 6 months’ time, which you are agreeing to disagree, give specific reasons why that person is wrong. At least let that process go on. What is happening is you are achieving the worst of both the worlds.
After CJI’s outburst, Law Minister Ravi Shankar Prasad told the media they are in the process of preparing the MoP.
Now because you have raised this, you invent reasons. You justify your delay by inventing reasons. That’s not a constitutional approach. That’s not graceful, that’s not a statesman-like approach. It is very clear from the reply that the government has thought of inventing reasons to justify its delay.
Before the NJAC Act, the Congress view was exactly like those of today’s NDA…
There is absolutely no contradiction. This government is creating an imagined paradox. In fact, I was chairman of the committee which vetoed many of these Acts. We protected each and every one of the principles of executive and legislative independence zealously. I had a committee of 31 persons. There was a clear view that collegium should not appoint judges. Judiciary should not procreate themselves which is why we all recommended that there should be an NJAC. You are forgetting, madam, that all this debate was pre-NJAC. Now, after NJAC is repealed, how can you make the same arguments again — that NJAC must be there? That although NJAC is not there but we should reincarnate the NJAC by ulterior motives through the backdoor calling it the MoP, there is no paradox?
There were collegium issues in your time too, but you don’t talk about it because you don’t want to support this government in any manner. I deny that charge 100 per cent. Pre-NJAC passage and post-NJAC being struck down are two different worldviews, please don’t mix up the two. NJAC has been judicially struck down. The law of the land today is there is no NJAC. Second, tell me an individual case of judicial excess and I will be the first one to criticise. You have no power to decide the issue whether identity cards should be issued to gau rakshaks.
You said that you agree with Arun Jaitely’s assertion in Parliament that why cede ground to the judiciary.
I am repeating very clearly there is no question of ceding legitimate ground, in principles. But I don’t agree that this resisting appointments is the correct manifestation of the principle. What is the use of saying something in Parliament when cases are heard in courts? The judgment has come, so being very populist will not work.
The Congress is the party that brought this NJAC Bill…
I am all for a re-enactment of a slightly modified NJAC with all safeguards which have been pointed out by the judgment… We will support it 100 per cent… The correct way is for a legislative exercise first to be passed by two-thirds if they want a constitutional amendment, second that makes it more difficult for the judiciary to overrule, third, if the judiciary still overrules on the ground of basic structure, then you have a right to again pass the law… the judiciary will again have a right to look at it. The last part, the penultimate part, I am fully in support of because I believe that the collegium system has been tried and has had many failures. I believe that the executive primacy system failed which is why the judiciary replaced it. Today therefore it is time to try the third new model, criticise and condemn the NJAC after you have tried it.
The politics of India today is BJP versus anti-BJP. And after the early days of the Narendra Modi government when this Act was passed, now all political parties are putting their weight behind the judiciary. The judiciary is also taking a rigid stand, obviously.
It is fallacious to assume that the judiciary will lend itself in any manner to the attainment of a political objective. It is wrong. In fact, it may cast serious aspersions on the judiciary if any part of it is willing to do that. In this mass of political parties, each with a different agenda to conceive a monolithic ethic — anti-BJP — which is going through the judiciary is totally wrong. Three, I am saying so clearly that the consensus and the spirit across the political spectrum even today is for having an NJAC… What all of us are criticising is that while the NJAC should be considered in a new form… It is as simple as saying what the law ought to be but it does not give you an excuse to circumvent the law as it is. What the law ought to be in the womb of the future does not give you any right in letter or spirit to circumvent it or dilute it in its operative reality today.
Judiciary is apolitical, but right now it has got non-BJP political parties on its side by default. So, it is making the government look very weak. Yes, with that I entirely agree. Why does it have political parties on its side? Because the political parties, 99 per cent of whom had supported the NJAC, are mature enough to understand that having supported the NJAC, if the court struck it down we cannot cede power to the government also to decide the matter.
The ground reality is that the government is alone fighting for the legislature and you are on the side of the judiciary.
To the extent that you have found the examples and manifestations of this government trying to create an assault on independent judiciary through backdoor and through these means, yes, there is a unanimity that you cannot try and control the independent judiciary by these methodologies, and we would not have been on side of the judicialry if we had any legislative means of nullifying this power of the judiciary.
What are those means?
New constitutional amendments or NJAC-III… It is a matter of future, but today we are talking of the action taken, we are not talking of the law. The law is right where judges will guard it. Tomorrow if the government was to build a new NJAC consensus and pass a law, you will have a different debate.
What’s the immediate future of MoP?
I think most of the demands that the government under the guise of the MoP has made are wrong. I think some of them are legitimate, I made the nuanced distinction, I think this debate will go on longer. It is not a quick-fix solution because neither the judiciary nor the government will yield quickly. I believe that in the meanwhile, please for God’s sake, don’t make appointments a casualty. That’s a casualty which will convert an ICU person into a ventilator-driven person. The country with 450 vacancies of judges is on ventilator. We have to deal with it with some consensus that for the three to six months it takes to agree to disagree or to disagree to agree, for that time we will post-haste fast-track the appointments. And for that the government has to cooperate, they have to walk the extra mile without ego. And keep the MoP alive, keep discussing it and I think a solution will emerge, but the problem is that it will take a few months.