With the Centre and the Supreme Court locked in a tussle over the new Memorandum of Procedure for the appointment of judges, P P Choudhary’s position as MoS Law assumes significance. A first-time MP from Pali in Rajasthan and a senior Supreme Court lawyer, Choudhary was part of the Joint Committee of Parliament that looked into the contentious land acquisition Bill brought in by the NDA and which was later abandoned.
MANEESH CHHIBBER: Tell us about your journey from being a senior lawyer to becoming a Union minister in the NDA government.
I have been in the legal profession for the past 38 years. I am a first-timer in politics. I was inspired by the call of Narendra Modi ji to provide clean and transparent governance for the betterment of the country. It was then that I decided to take a plunge into politics. I got a ticket to contest from Pali in Rajasthan and I won by over four lakh votes. As an MP, I participated in over 350 debates in Parliament, sought the response of the government through 394 questions and submitted 22 private member Bills for consideration. If I had to sum up my politics in one line, then I would say that I felt suffocated by what I saw at the lower level. It is painful, and that was one reason why I decided to enter politics. Now, when I see my colleagues in Parliament, I feel good.
MANEESH CHHIBBER: People think the judiciary and the government are in confrontation. Is that a correct perception?
I think this perception is absolutely incorrect. Our government can never think of weakening the judiciary. The common man of the country reposes immense faith in the justice delivery system to redress his grievances. Hence the credibility and independence of the judiciary are of paramount importance. Our duty is towards strengthening the independence and credibility of the judiciary, and the NDA government under the leadership of Prime Minister Modi has been making extensive efforts in this direction. But, sometimes, remarks are made. I believe that one constitutional functionary should not be accusatory towards another, be it the government, the judiciary or Parliament. While the executive speaks through its orders and actions, legislature speaks through the enactment of laws, the judiciary speaks through its judgments. Hence, it is these judgments which should be given due weightage.
MANEESH CHHIBBER: Is there a communication gap between the government and the judiciary?
I don’t think such a communication gap exists. However, I feel that there is always scope for improvement. One of the ways forward could be to hold periodic meetings between the government and judiciary at the highest levels.
MANEESH CHHIBBER: But then why are so many appointments stuck?
I have a list (of appointments) till November 15, 2016. Till date, four judges have been appointed to the Supreme Court, 124 additional judges have been made permanent and 120 fresh appointments of judges have been made in various high courts. We have not received names for the seven vacancies in the Supreme Court. The sanctioned strength of the judges of high court has also been increased from 906 in June 2014 to 1,079 judges as on November 25, 2016. This data speaks for itself. I don’t need to draw a conclusion. Right from Independence till date, so many appointments have never been made in 8-10 months. And if you still say appointments have not happened, it will be contrary to the data I have provided.
MANEESH CHHIBBER: So why does the government want more power over appointments in higher judiciary?
It’s not a case of government seeking more power in the appointments of higher judiciary. Were appointments made before the collegium system better or worse? I can name several judges who passed judgments that are still recalled and followed. The Constitution prescribes a collaborative process in the appointments, where both the executive and judiciary have been entrusted with clearly demarcated roles and responsibilities. The government has always given significant weightage to the judiciary’s recommendations.
With regard to the collegium system and the existing Memorandum of Procedure (MoP), the Supreme Court has, in its December 16, 2015, judgment, acknowledged the need ‘to introduce transparency in the matter of appointment of judges to the higher judiciary’. This is not our verdict or opinion. It is felt that the present collegium system is not equipped with an efficient mechanism to objectively evaluate the competence of candidates in a holistic manner. Hence, I feel that both the executive and judiciary must work in a coordinated manner through an extensive process of consultation for appointment of judges.
MANEESH CHHIBBER: Now that the government has sent the revised draft of the MoP to the SC, where is it stuck and why is it not getting finalised?
Acting as per the directions of the Supreme Court on December 16, 2015, the government initiated the process of drafting the revised MoP. After passing through several rounds of consultations with the SC, the latest draft MoP, which is in consonance with the court’s judgment of December 16, 2015, was sent on August 3, 2016, for the consideration of the Supreme Court collegium. It may take more time and deliberations must be on for sure. Both (the judiciary and the executive) have the same aim, though the means might be different. Both the government and the Supreme Court collegium want more objective considerations and fewer subjective considerations in the procedure (of appointments). Personally I feel that apart from finalising the revised MoP, the original spirit of the Constitution needs to be restored in the appointments of the judges of the Supreme Court and high courts by defining the word ‘consultation’ under Article 366. In my personal opinion, there should not be any insistence on making any further appointments as per the old MoP. This shall be against the true spirit of the December 16, 2015, judgment of the Supreme Court.
SHEELA BHATT: But won’t judges know better than the government about judges and the quality of judgments?
The appointment of judges has been made a collaborative and consultative process between the judiciary and the executive, so that both can pool their resources together to select the best candidate for the job. I do agree that the judicial competence of a judge or a practising lawyer can be best gauged by the judiciary. But the collegium system is flawed and the SC itself said so; this is not the government’s observation. The appointments are not without flaws. Appointment of a judge to higher judiciary requires a holistic assessment of the qualities of the candidate which go much beyond judicial competence. Here, it needs to be noted that one of the reasons for the increase in vacancies in the higher judiciary, despite recommendations by high courts, is that the collegium rejects, on an average, 30 per cent of recommendations made by the high court collegium. On matters of national security, the government holds the wherewithal to evaluate any threat, and any input or opinion given with respect to national security by the government needs to be given due weightage.
UNNI RAJEN SHANKER: You said that if the government raises issues of national security, it should be put on record and the SC should not be asking questions. How is that transparent? Two, the names of 43 judges have been rejected by the government. How was it linked to national security?
First of all, no person can claim the right of appointment. The SC can only insist that you should appoint such and such person. But because this is a constitutional post, this involves national security. As I said earlier, apart from judicial competence, the government is well-equipped to assist the judiciary in a holistic evaluation of the candidates. Articles 124 and 217 of the Constitution signify the role of the executive in the appointment of judges. If the government finds that an appointment goes against national security or overrides public interest, then such an appointment can be declined by the government and reasons for the same can be shared with the Chief Justice of India. Thus, there is complete transparency in the process.
MANEESH CHHIBBER: The Centre’s stand on triple talaq and Uniform Civil Code has led to an uproar. Are you playing vote-bank politics?
As far as the issue of Uniform Civil Code is concerned, it is enshrined in Article 44 of the Constitution as one of the Directive Principles. The matter is currently being examined by the Law Commission and once it submits its report, the government will examine it. As far as the issue of triple talaq is concerned, it needs to be remembered that personal laws must be examined in the light of the overarching goals of gender justice and dignity of women. The underlying idea behind the preservation of personal laws was the preservation of plurality and diversity among the people of India. The need for preservation of such diverse identities cannot be a pretext for denying women the status and gender equality they are entitled to under the Constitution. Even Muslim countries, where Islam is the State religion, have undergone reform in this area of the law. In a secular republic like India, there is no reason to deny women their rights.
VANDITA MISHRA: You said you are a first-time MP who became a minister too. That’s unusual in politics, especially if you don’t have political clout or backing. How difficult was it for you to join politics?
I would not say that this is unusual. There are several people in Parliament who are first-time MPs and who have become ministers. Our prime minister is also a first-time MP. The NDA is against dynasty politics and every person is accorded a role in the organisation and government based on governance requirements. Getting a ticket to contest elections wasn’t difficult. After that, I held 600 meetings in 17 days.
VANDITA MISHRA: You said you felt suffocated by what you saw at the lower level of politics. What is it that you found most suffocating?
The suffocation I spoke about earlier was with reference to corruption in the country. When I entered politics and saw that elections involve a lot of money and that there is a lot of corruption at the lower levels, I was disappointed. In Modiji’s government, there is no corruption, there are no allegations against the government or its ministers. This is in complete contrast to what used to happen in the past, when 2G and several other scams were reported. There has been status quo in the bottom rung for the last 60 years, so yes, it will take time, but we will clean up the system. The root cause of corruption is the existence of a parallel economy which generates black money in the country. Through the unprecedented move of demonetisation, the Prime Minister has initiated the process of weeding out the malice of corruption. Demonetisation has shaken certain people who operate with money and muscle power. Modiji has the support of the aam aadmi in this campaign. Now if a political party asks its cadre to destabilise things, it’s another issue altogether. But for the genuine people — the salaried ones, who always pay their taxes — it is a welcome step.
NANDAGOPAL RAJAN: The use of social media is expanding but there are no laws to govern it. Do you think we need laws to govern the medium?
If your question is related to cyber security, as Minister of State for Electronics & IT, I can assure you that this issue is of immense significance for us. As a medium, Internet is a truly democratic global platform which provides individuals with an opportunity to express themselves and also serves to bridge the digital divide. However, this freedom should not cause harm or undermine the rights of other individuals. Within the fold of the ministry, institutions such as CERT-in are taking proactive measures to ensure that the public as well as private data is well protected. As far as the issue of prevalence of laws governing social media is concerned, there is no law governing the behaviour of individuals in cyber space. However, whenever the behaviour of an individual in cyber space affects the rights of other individuals, the Information Technology Act prescribes the nature of the crimes as well as the quantum of punishments attached to such crimes, to safeguard such rights.
MANEESH CHHIBBER: After the recent ICANN conference, where it was decided that the US government is set to cede control of the cyberspace’s underlying technology, you had said that may be some of these servers and master servers could be in India too.
On October 1, 2016, the US had transferred its stewardship role in ICANN’s IANA (Internet Assigned Numbers Authority) to a multi-stakeholder community . Ten of the root servers in the world are located in the US, while the other three are located in Sweden, the Netherlands and Japan. India is a country known for its strengths in the field of providing quality IT and ITeS services to the world. Our software professionals are working all over the world, with a majority in the US and Europe. Thus there is a case for a new root server to be located in India. Besides this, we have also taken the matter of Indian representation in the ICANN board, as India has around 450 million active Internet users at present. Half of the next billion Internet users would be from India. This would provide India a role in the international Internet governance, and democratise such international governance institutions further. They have to take a decision.
SHYAMLAL YADAV: There is a perception that this government is against RTI. What does your experience say? Is RTI a problem for the administration or is it a solution and a tool for good governance?
The RTI Act was enacted by Parliament and not by a court order. The government made it a law. It felt that the government should be transparent and its procedures, except confidential documents, should be known to the common man. The government is not at all uncomfortable with it. The government can never be uncomfortable with a law enacted by Parliament.
MANEESH CHHIBBER: You filed a number of PILs while you practised in courts. In the past few years, it has been said that PILs are being misused. Do you think it’s time to regulate PILs?
There can be no hard and fast rule. It differs from case to case. I think the courts will have to decide which PIL to entertain and which not to look at. If the PIL brings to the court’s notice a violation of fundamental rights, or if it is about poor people who cannot approach the court by themselves, then I think courts should entertain them. But if the court feels that a particular PIL is politically motivated, frivolous, filed to build someone’s political image or has an ulterior or oblique motive, then the court should disallow it. While I am not in favour of a one-size-fits-all regulatory structure for regulating PILs in the country, I believe that there is a need for creating robust checks and balances, including initiating penal actions against any kind of PILs which are politically motivated.