Updated: March 1, 2021 7:40:51 am
Rohatgi asserts contempt proceedings should not be initiated in “insignificant instances”, believes the debate over post-retirement jobs for judges is a “legitimate” one, and says issue of same-sex marriages should be debated in Parliament first. The session was moderated by Assistant Editor Apurva Vishwanath.
APURVA VISHWANATH: Many cases of contempt have come up in the courts recently. How would you distinguish between criticism and contempt of court?
It is not a very clear, simple line… Contempt is where you create an atmosphere where it is impossible for a court to function neutrally and independently. If such a situation comes up, either by your actions, in writing or otherwise, or by creating an atmosphere where people lose faith in the institution, that would be contempt. Criticism of court procedures, criticism of court delays, criticism of the fact that the poor and the lower middle-class don’t get speedy justice but big corporations are able to get it because huge stakes are involved in terms of money etc… criticism of that kind of thing is also valid.
Another angle to criticism is caricature or lampooning. Suppose somebody sketches a caricature of court with an endless line in front of it. It depicts that you stand in a queue for days and years for your turn. It is a caricature and its objective is to tell the public that the system is moving at a snail’s pace. That kind of criticism, according to me, is completely valid.
APURVA VISHWANATH: Is it only now that the Supreme Court is coming down heavily on criticism, and is there a fear that the stature of the court is being lowered?
In the Prashant Bhushan case where he criticised the Chief Justice for riding a motorcycle (without mask or helmet), even as cases were pending in court… I personally don’t agree with that view of the court. Recently, the Attorney General gave consent to initiate criminal contempt proceedings against a comedian, and young girl who created caricatures, for whom I’m appearing… I have said earlier also that if I was the attorney general, I would not have given the consent. These are too insignificant instances in the life of a court and judiciary to take any notice. In fact, by taking notice, you are unnecessarily giving significant exposure to these people, which they don’t deserve. There are things which are best left untouched or unsaid, and the court should forge ahead. (Last year, Attorney General K K Venugopal granted consent to initiate criminal contempt of court proceedings against comic illustrator Rachita Taneja and comedian Kunal Kamra).
There is a famous ‘Spycatcher’ case (1987) in England. After the judgment, the press was furious. On its front page, the British newspaper Daily Mirror published an upside-down picture of the three law lords who presided over the case with the caption, ‘You Fools’… Now, in the current scenario, it would certainly amount to contempt. But in England, when this issue was raised, the judges said that the shoulders of the court are broad enough to take criticism… So, the foundations of the court or judiciary is powerful enough to take these such things (Kamra, Taneja cases) in its stride. It doesn’t augur well for a court to take contempt action in such cases.
Contempt action is taken against a motivated attack. Contempt action was taken by the Supreme Court against a practising lawyer some time ago, because some scurrilous attacks were being made against a judge. Suppose I don’t allow the court to function, keep shouting or disrupting the court proceedings… Those are situations where contempt action has to be taken because the court gets paralysed in its working. In another instance, some years ago, a litigant threw a slipper at a judge. It was some poor litigant who was frustrated on account of delays. One judge decided to take contempt action and give punishment for three months. The other judge did not agree with the procedure adopted by the senior judge in taking contempt action. Obviously, it’s a disgrace to throw a slipper, but at the end of the day, if you look back at the history of the case or what that person may have gone through — being without a job for 20-30 years and with no money to sustain himself — then you will see that it is best to overlook these things. If I were the attorney general, I would never have given consent (in the Kamra or Taneja case). You should know that in England, the contempt jurisdiction has been abolished. I am not saying that we should abolish it, we certainly require it, but recourse to the jurisdiction must be very sparing and only when it is inevitable.
ANANTHAKRISHNAN G: In the Kamra case, he drew comparisons between a sitting judge and a flight attendant, among other things. Does that impair or lower the judiciary’s image in the eyes of the people?
Not really. There is a debate over the context of what Kamra was trying to say. Why did the Supreme Court, which was in vacation, take up one bail matter when thousands of bail matters were pending? Or why did it take up the case of one media person, while many other mediapersons were in jail? I believe what the court did was correct. It was not because of an individual’s concern but to send a message that freedom of the press is important and is a constitutional right and should not be cheated in any manner. That’s why the case was taken up. The case happened to be of an editor of a news channel… There were people who criticised the move to take up one particular case of a particular channel which is perceived to be close to the government. There is a debate on that…
I myself appeared in that case, not for the editor but for two other businessmen who were arrested along with him. They were caught in the crossfire… I think what Kamra wanted to say was that why did the court take up that case. Why were they so sympathetic to that case?… I mean, it certainly is in poor taste. There is no doubt about it. But it is not something which will make people feel that the Supreme Court has lost all its authority.
APURVA VISHWANATH: You have been a vocal critic of post-retirement jobs. Prasant Bhushan’s comments were also about the former chief justice Ranjan Gogoi being offered a Rajya Sabha seat. What are your views on it?
It’s a legitimate debate. The late Mr Arun Jaitley had said in Parliament about five-six years ago that retirement jobs are not a good thing because they can change the mindset of the judge. A few months prior to retirement (if a judge is offered a post), your mindset may perceptibly or imperceptibly change and you may be more careful in cases which require granting relief against the government. That’s what he said… There may be no truth in it, but the general perception is that why should you offer a post-retirement job? You could have a cooling period… You have it in many government services. Why should you retire today and take up a job from the government against whom you have been passing orders? So, have a cooling period. There is a debate over it…
This particular case, of the (former) CJI who was nominated to Parliament immediately after a judgment, did raise eyebrows. People talk about it… There may be nothing in it. I have known the judge for many, many years. He is absolutely straight. There is no better barometer than the Bar for the spine, intellect and morality of a judge. I can tell you that on all the three counts, that was perfect (Gogoi’s case)… Now, he took up the offer immediately (after retirement), and I don’t think there is anything wrong if somebody says it is not correct, or that there should have been a two-year cooling period. Somebody may say it doesn’t matter because the judge was honest… There’s nothing wrong in having a debate.
I am not privy to the (Justice A K Patnaik inquiry committee) report… but I trust the judges to be independent. I am sure they have had a look at all the material and then come to the conclusion that there was nothing in the case… I trust all judges of the court examined the case dispassionately. Those judges are mature enough to rise to the occasion in case something wrong has been done, even by a colleague.
APURVA VISHWANATH: But in this case, the question really is about the manner in which it was handled initially, including the Saturday hearing where Justice Gogoi presided over the special Bench convened for the case.
If you ask me, Justice Gogoi should not have sat on the Bench. But I am sure he was in shock because it was the first allegation against the judge in 20 years of his career as a judge, and maybe another 20 as a lawyer. So, after 40-45 years, when such allegations are made, whether right or wrong, the name of the judge is muddied… So there must have been a kind of a shock which may have led him to sit on that Bench. But maybe he realised that he should not be a part of it, so he didn’t sign the order etc.
APURVA VISHWANATH: It’s been over five years since the National Judicial Appointments Commission was struck down by the Supreme Court and we are still talking about the way judicial appointments should be made. There is a stalemate in the Supreme Court Collegium. We haven’t seen a recommendation to the Supreme Court in nearly 18 months…
I was the Attorney General at the time when the NJAC Bill was passed and the Constitution was amended. If you go back to the Constitution, it provides that an appointment of a judge shall be made by the President of India “in consultation” with the Chief Justice. According to me, it’s a simple line. It has no legalese in it. It cannot mean anything except that the government will appoint and in consultation. This means that the President will consult and respect the views of the Chief Justice because that’s the view of the institution. But the final word is that of the President. That is what it means. Over the course of judgments and years, after the Emergency, these words still remain the same. But they have been given a different interpretation by the Supreme Court — according to me, completely incorrectly — by virtually saying that “consultation” must be read as concurrence. So if you change it to concurrence, it means that the President shall not appoint unless the appointment is concurred with the Chief Justice. That is wrong. This is usurpation of a power which the Constitution did not give them. No country in the world has a system where judges appoint judges. I showed all that in the challenge to the NJAC in the court. I showed them the words of (Dr B R) Ambedkar when this particular provision was drafted… Concurrence was thought of earlier but was not given… Some of our best judges in the Supreme Court were appointed between 1950 and 1980 by the government “in consultation”. So there is no warrant for saying that the provision did not work well. It worked excellently…
Since the amendment was struck down, things have gone from bad to worse. In fact some judges who were on that Bench, after retirement have said that they regret the decision to which they were a party. I had explained to the court that the manner in which the power was taken by the court and was being exercised, was completely in the dark and without any transparency. Nobody knows why a particular man is selected or not selected. There are no minutes, no reasons. If this was done by a government department, it would be set aside in a day… Since the current Chief Justice was appointed, and now his impending retirement, in more than a year, there has been no appointment to the Supreme Court. What does it mean? There will be three more vacant posts now. It takes at least six to eight months to have this process done. The process should be done in advance so that you have two names in the list — the moment somebody retires, the next day, a person takes over. That’s what happens in the Army. Can you have a post of an Army General vacant even for a day? (There is no appointment) because there is now probably a lack of trust between members of the Collegium… So what was wrong in having some sunlight, in the sense of having an outsider in the collegium?
NIHAL KOSHIE: The BCCI has filed an interim application (IA) regarding cricket reforms in the Supreme Court. The IA was listed last year but there have been no substantial arguments yet. However, the top office-bearers of the Board, the president and secretary, who were supposed to go into cooling-off periods last year, are continuing in their posts. Is it right to do so?
Firstly, it’s a question of morals. If your morals are fine, then you should not do what you are not supposed to do. In the old days in England, if something happened, a minister would resign taking moral responsibility. I don’t think anybody takes moral responsibility here and resigns. So morally, they should not have done it if there is a cooling-off period, and merely because you filed an IA to change the cooling-off period… Till it is changed, you must abide by what it is.
NIHAL KOSHIE: In the last hearing, Solicitor General Tushar Mehta represented the BCCI. Can the law officer of the government represent a private body?
I don’t know the exact relationship but it is true that a law officer cannot appear for a private body or person. But in exceptional cases, a law officer, whether solicitor general or attorney general, can take permission under the rules of the Law Ministry to appear. So it could well be that. And routinely, some permissions are taken, (but it is) not a very great number.
APURVA VISHWANATH: You have spoken about bail being granted to activist Disha Ravi in the ‘toolkit’ case. Is there a concern about the way courts and governments are handling protesters?
Let’s not talk generally. As far as Disha’s case is concerned, I had read in detail whatever appeared in the papers. It seemed to me that the charge of sedition was completely wrong. Sedition was a colonial hangover from the British, not to allow the local populace to rise against them. Sedition means a call to violence, arms, or to overthrow a government. There is no such material… She is a climate activist… There is nothing to show that there was any call to violence. I think it was a trigger-happy police… As a general thing, to curb dissent, freedom of speech, by use of these tactics certainly is not authorised by the Constitution.
ANANTHAKRISHNAN G: You argued for decriminalising homosexuality in the Supreme Court. Now, the Delhi High Court is hearing petitions praying for recognition of same-sex marriages, which the Centre has opposed. What is your view on it?
I argued against Section 377 (which criminalises homosexuality). It’s not a question of my beliefs. I am a lawyer. Whether I agree with it or not, as a lawyer I will still argue a case… It’s not for me to judge. It is for the court to judge according to evidence.
I found that the provision (Section 377) was also a measure of Victorian values. All across the world, it is now acepted that this is a human trait… Therefore, there is no point in keeping the Victorian morals… and so it was decriminalised. But the question of same-sex marriage is a very different one. It’s not just a small adjunct to what the Supreme Court decided. What the Supreme Court decided was that what you do privately in your bedroom is something which nobody else is really concerned with. But same-sex marriage is in a very different plane. It’s not inside your bedroom anymore. It is in the public. Is the country ready or not ready for it? This is a matter of debate, which has to be actually done in Parliament and then a call can be taken.
ANANTHAKRISHNAN G: What are your views on the Westminster Magistrate Court’s comments on Justice Markandey Katju’s testimony in the Nirav Modi extradition case?
From whatever I have read of the judgment of the English court, I tend to agree with it. The evidence of Mr Katju was not entirely correct. To say that the judiciary is a complete failure and he (Nirav Modi) will not get justice… 100 crore people are getting justice, slow but steady. People are getting bail, they are getting acquitted. We are lawyers. Everyday we succeed in cases, we lose in cases. But we don’t say that the system is completely twisted against us. The judges are there. They have a spine. And if the judges are not there, and you have an authoritarian State, then we have nothing left. We have a good judiciary. There is no question. He (Katju) has been a part of it. To say that the judiciary was kowtowing to the government was completely uncalled for. I think it was rightly rejected.
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