‘Uniform civil code is a must in this country,but no party will support that’

“The last time I came to this building (The Indian Express) was in 1977. A G Noorani and I had come to meet Jaiprakash Narayan (who was staying in the penthouse as a guest of Ramnath Goenka) and tell him that we were firmly of the view that neither (Y V) Chandrachud nor (P N) Bhagwati should be made Chief Justice of India (CJI). We said we believed there should be a supersession to end all supersessions as they had both disqualified themselves in view of their judgements in ADM JABALPUR (in 1976 in which the majority of a five-judge bench agreed with the then Indira Gandhi government and held that even the right to life can be abrogated during the Emergency). We were there with a statement to that effect and we requested J P to sign and release it to the press. But Abraham (J P’s secretary at the time) reminded J P that Morarji Desai had requested J P not to rush to the press without a discussion with him. We responded by telling J P that he was the conscience of the country and as such above politics. Abraham said M C Chagla was coming the next day and suggested that J P consult him. The next day,when my father met J P,he agreed that neither of the two judges should be made CJI. Jaiprakash signed the statement and it was to be released to the press. Unfortunately J P was ailing and under the control of those around him. We were told that he was on his way to Patna and it would be published from there. From the airport,I got a phone call informing me that J P had changed his mind and he did not want the statement to be released; whereupon I asked for the statement claiming it to be my property even if it was not to be released. The answer was that J P had wanted it destroyed and so it was.”

MAYURA JANWALKAR: You have completed 50 years at the Bombay Bar. How different were things in 1963?<\b>

Story continues below this ad

In 1963,I had just returned from England and I was told by my father to meet Sir Jamshedji Kanga,the doyen of the Bar. Jamshedji said he no longer practised and suggested that I join Khurshedji Bhabha. That was the best thing anyone could have suggested. What amazing chambers they were with a galaxy of legal talent: Fali Nariman,Soli Sorabjee,Jangoo Khambata and a host of others! It was said that joining Bhabha’s chambers was an occupational hazard: Anybody who joined his chambers was bound to be offered a judgeship! While almost everyone was asked,I don’t think any one of them accepted.

MAYURA JANWALKAR: Is it true that in 1999,you were offered a judgeship directly to the Supreme Court and that you would have been the CJI? What was the reason for not accepting it?<\b>

I was offered judgeship in the Supreme Court in 1999. Had I accepted it,I would have been CJI by 2003. But there were personal and family reasons for declining the offer. I consulted my friends and family and thought about it for weeks. It was the most difficult decision of my professional life. Had my tenure as CJI been longer,I would have perhaps overcome the personal reasons. But I believed that just over a year as CJI was not long enough to be able to do something substantially significant.

MAYURA JANWALKAR: Could you take us back to 1990,when the Bombay Bar sought the ouster of four HC judges after allegations of corruption surfaced?<\b>

Story continues below this ad

I must confess that I was the one who initiated the move and moved the resolutions at the Bombay Bar Association. At the time,we had identified at least four judges who,our collective experience clearly evidenced,were corrupt. When I discussed what I intended to do,my friends and colleagues warned me that this was clear contempt and there was no defence to contempt. I said I realised that but at the end of the day when that accusing finger of posterity asked what I did when the judiciary was going down,what answer would I give? That I sat back,earned my fee and did nothing about it? Fortunately,we had Sabyasachi Mukherjee as CJI and Chittatosh Mukherjee as Chief

Justice of the Bombay High Court. We went to Chittatosh Mukherjee and told him what we proposed to do. He asked us to wait for a week. After a week,he said there was nothing he had been able to do (about the issue) and that he could not tell us to do what we intended nor could he say that he approved. We went ahead and moved the resolutions. One judge resigned before the meeting,two were transferred and one was given no work at all.

P VAIDYANATHAN IYER: What happened five years after that?<\b>

I was then the president of the Bar Association and as I said then,I thought that five years earlier we had made history of a kind that would never have to be repeated. Alas,it had to be. The then Chief Justice of the Bombay High Court had claimed that he had been paid $84,000 as an ‘advance’ to write a book on Hindu law for the Middle East. There were some vigilant young turks at the Bar who made inquiries in London and found that the publishing house named didn’t exist. There was evidence to suggest that the ‘advance’ was illegal gratification for a matter he had decided. I drafted the requisition calling for a meeting about the conduct of the Chief Justice and passing a resolution against him. I received a call from a judge of the Supreme Court. I was asked to adjourn the meeting as the Supreme Court was looking into the matter. I readily agreed provided I shared the reason with my members. When I was told I could not,I said in that case the meeting would be convened. The Chief Justice of Bombay then called me to his residence on the morning of the meeting. I told him that if he agreed to resign,we would not pass the resolution. He asked for a week’s time. He never got back to me. So we moved the resolution and after which he resigned.

SMITA NAIR: How powerful is the Bar Association today?<\b>

It has become somewhat dormant. Earlier,there were people who were willing to take risks and become unpopular. It’s not ‘popular’ to take on judges or to say things about the judiciary. Also as a result of the resignation of the Chief Justice in the wake of our resolution,the Supreme Court delivered a homily as to how Bar Associations should conduct themselves and not police the judiciary.

Story continues below this ad

SMITA NAIR: What are your views on contempt of court?<\b>

A great advancement has been made now that justification is a defence,which was not there earlier. We have to protect our judges against irresponsible allegations. We have to,always,proceed on the assumption and the presumption that they are clean and not corrupt. If anybody makes an allegation of impropriety against a judge,it is contempt. But if he is able to prove (and that is a big ask) that what he has said is correct,he has a valid

defence.

VAIDEHI THAKKAR: Do you think we will ever see a push from leaders of the Muslim community to boost social reforms for women?<\b>

The Muslim community,unfortunately,has no responsible,acknowledged leader. There are disparate groups but there is no individual that one can think of as a leader of the community. They don’t have a spokesman for the community who speaks in an identified voice rather than different voices. Islam,and therefore the Shariah law,was the first religion to give women rights,which no other religion did. But it needs far greater reforms today,within the community itself and that needs a leader.

Story continues below this ad

ALISON SALDANHA: What is your opinion on the uniform civil code?<\b>

It is an absolute must in this country. But as long as there is vote-bank politics,it can’t happen. It would make a great difference in the country but no party will ever espouse that because they will lose the Muslim votes. No political party is going to risk that.

SMITA NAIR: How do you ensure there are enough people to accept judgeship?<\b>

My view has always been strong on that. Pay judges really well. So well that any member of the Bar,who is doing well,will say yes to a judgeship because then he has not only the dignity and respect but also

Story continues below this ad

financial security. We are fortunate that recently we had a half dozen practising lawyers who made the sacrifice and have been elevated. The other suggestion that we had made years ago to tackle arrears was that senior lawyers give up a year or two years of their professional life and become ad-hoc judges. The

suggestion was not accepted.

ZEESHAN SHAIKH: Your father was a close associate of Mohammed Ali Jinnah. What made that man stand out?<\b>

I think because he was westernised,an intellectual and a successful lawyer,he was looked upon by the community as one of those capable of negotiating with Nehru,Gandhiji and others to get a fair deal for the Muslims. Jinnah,never in his wildest imagination,dreamt of or wanted a Pakistan. Jinnah was a confirmed nationalist. He just wanted security for the minority community within a larger India. And his transformation from a westernised gentleman in a sharkskin suit to wearing a sherwani,the Quaid-e-Azam,was remarkable.

ANANT GOENKA (reading out a question asked by a law student on Twitter): Is it possible to shape your career as a counsel without legacy?<\b>

Story continues below this ad

We are not completely like national politics. It does not go from father to son. Maybe it is an advantage up to a point that they know your father as a judge. It is also a disadvantage,because a judge and his son practising in the same court is not encouraged. You might get a friendly look from the judge. But unless you deliver the goods,no solicitor or advocate is going to brief you just because your father is a judge.

SUKANYA SHANTHA: Do you think that the Supreme Court’s recent decision to bar persons from contesting elections,if in jail or in police custody,is judicial overreach?<\b>

When a court decides the vires of a statutory provision it is certainly not a matter of judicial overreach,to adopt the current expression in vogue. What is described as

“judicial overreach” is where the court travels beyond and assumes jurisdiction in matters of policy and the like. In our constitutional scheme,the courts are to decide cases between citizens and between citizens and the state. Then came a time when venal administrations required interference by courts,particularly in public interest litigations,in deciding matters that they were never intended to do. Now the local administration and other bodies have decided not to do anything,unless the court tells them to. So,if we speak of judicial overreach,it is entirely due to,if I may quote

Justice Holmes,“the felt necessities of the time”.

Story continues below this ad

POORVI KAMANI: What is your view on regulation of social media?<\b>

How do you regulate? Censorship is abhorrent. If there is a platform to exchange ideas,self-censorship is impossible. As long as there can be some form of self-regulation but not censorship,that would be desirable.

VAIDEHI THAKKAR: Which would you count as your most memorable case?<\b>

A case I lost. The Mill Lands case which I did pro bono in Bombay and in the Supreme Court taking up about eight weeks between the two courts. I think Bombay would have been a different place,if the Bombay High Court judgment had stood. It was heartbreaking to lose in the Supreme Court and the result is there for all of us to see. So it is

memorable from that point of view.

(Transcribed by Mayura Janwalkar & Sukanya Shantha)