NJAC with tweaks could’ve worked... was buried before it began: Justice SK Kaul
Justice Sanjay Kishan Kaul spoke on a host of issues including the functioning of collegium and the possible reforms in judicial appointments
NEW DELHI: Justice Sanjay Kishan Kaul, who retired as a judge of the Supreme Court on December 25, has authored several path-breaking judgments protecting personal liberty, creative freedom and gender justice since his elevation to the top court on February 17, 2017. He was also a part of the top court collegium that made several recommendations for the appointment and transfer of judges in constitutional courts. Prior to his appointment in the apex court, justice Kaul served as the chief justice of Punjab & Haryana high court and Madras high court. He spoke to Utkarsh Anand and Abraham Thomas about the functioning of collegium, possible reforms in judicial appointments, proposed changes to the criminal laws, and a host of other issues.Edited excerpts:
Judicial appointments have always been a tricky issue and relate directly to the independence of judiciary. At the same time, there are valid concerns regarding how the collegium system functions. As someone who has headed the collegium in high court and been a part of the Supreme Court collegium, do you think it needs reform?
I feel that the collegium system served a very good purpose at a particular time. But over a period of time, my view is it is not working as it should have been working; not because of the failure of the system but because some of us (judges) did not rise to the occasion. Our appointment process envisages consultation. There is an opinion of the chief justice, collegium’s opinion, government’s view, Intelligence Bureau’s opinion, so many things come into it. But there is a lack of sync in the selection which has created this situation, and, in this process, we will never be able to fill in the vacancies abiding by the timelines.
The present system is really not allowing across-the-table discussion. The government, if it has reservations, should express it clearly and there should be a discussion on whether the reservation is worth the while to stop the recommendation. It is my personal view that putting it down in the files has not worked so well. Maybe a more direct exchange of views would be better in clearing the files.
Is the consultation not proper or is there a lack of understanding or trust between the government and collegium that is creating problems such as delayed appointments and deadlock over judges?
This problem is arising because there is no real discussion. Somebody says, should there be a face-to-face discussion between the judiciary and executive, I would say, possibly, that’s a better way of appointment. On the one hand, we say we are the final word, but when the recommendations made get stuck, how does it help the situation in this kind of scenario?
No government in India or anywhere in the world will let the judiciary appoint its own judges without them having any role to play. The consultation process should be such that it should be transparent. The least backdoor consultations, the better it is.
Creases have been endeavoured to be ironed out and timelines have been laid. But it’s worked only halfway. The more transparently (consultation) it is done, the better consultation is possible.
There have been instances of government filibustering, be it in the cases of Saurabh Kirpal or John Satyan where recommendations for their appointments are pending for years. Is that pocket veto?
There is certainly a veto by the government. Where they don’t want it and there are strong views on the candidature, they are effectively vetoing. This has also taken a route where the first recommendation cleared is unacceptable, even for reconsideration, for months it doesn’t come back. Maybe, they have an apprehension it may get reiterated. That does not make a difference because even reiterated names are lying with the government. That’s why I am saying there has to be a better understanding. We can’t have a growing pool of names recommended that remain blocked, and those people are put in a sense of uncertainty.
If the government really has reservations, right or wrong, over some names, they get stuck in the system. What should be accepted by both the government and judiciary is to pick up the best talent available. One concern may be that somebody with an agenda may not be elevated as a judge. But small perspectives and opinion would not, I think, be a deterrent in the appointment process.
You can’t be looking into small things at what a lawyer may have written somewhere or whom he appeared for. A successful lawyer appears for all parties. He is called upon to, at times, to address seminars and sessions. He may express some views. In India, politics is very important. Every lawyer or person would have some political belief or the other. What’s important is to assess that man must have the capacity and quality to implement the functions of a judge in a manner where his political belief should not interfere in the work. Hence, a thought process has to be given as to how this system can work better. There has to be a better evolved system. The number of pending names has to come down and some kind of solution has to be found. This cannot be an endless process.
Was the National Judicial Appointments Commission (NJAC), which sought to formalise the role of the government in the consultation process to pick judges but was quashed by the Supreme Court in 2015, a feasible option?
NJAC was also urged on certain parameters that were not accepted by the court on the judicial side. My view is either the government should have addressed them, or the court was required to tweak it, or the third option was to strike it down. Now, the third option prevailed though I am told that some judges on the bench later felt differently. But that’s wiser after the event. With NJAC struck down, the collegium system has got effected in a manner that impacts the efficacy of collegium.
Maybe, NJAC could also have been tweaked in a better manner... if the judiciary would have had predominant say and the primacy of the Chief Justice of India would have been retained in case of a tie or a stalemate over recommendations. The second thing I think would have been that once NJAC clears it, the appointment must take place because the government is already represented. There has to be a system where the judiciary has an element of prominence and predominance in the appointment system in the Indian context. Yet, the government will have a say, whichever government is in power. How to balance the two things and what system can balance these two aspects is I think is going to be one of the challenges for the future.
Are you saying that NJAC with certain modifications could’ve been a better mechanism to pick judges than the collegium system?
I believe, yes! If NJAC had been there, possibly the discussion would have been across the table... I believe it would have been more transparent. NJAC did, in some way, envisage that. Yes, it had its own problems, but those should have been tweaked. NJAC never worked.
It was buried before it could be started at all. I believe that has spread a lot of mistrust between the executive and legislature on one side who passed that law and the judiciary, by not giving it an opportunity to work. What is happening today is, if you see the structure of appointment, the time recommendations are made and with the opinion and all the things, the collegium clears it, they are not being able to clear 50% of the names. Of those 50%, if some are detained, the failure rate in the recruitment process is very high.
I also believe that the retirement age of high court judges (who retire at 62) and Supreme Court judges (at 65) should be one. It will have two advantages: First, for three years the vacancies will not arise, and second, if you do a deep selection and bring somebody to the Supreme Court, there will really be no grievance for the judges not being elevated.
In my opinion, there has to be a (new) law or some other structured method of an agreement between the judiciary and the government. You have to have a structured system where such a discussion takes place. I feel that discussion across the table is better than discussion in a secretive manner.
One criticism of the collegium system has been of uncle judges where you have relatives of judges getting appointed. Do you believe the problem exists?
I can’t say the problem doesn’t exist at all. But at the same time, I don’t think it is such a huge problem now. There may be scenarios that are perceived that some judges may be pushing for their wards to be appointed as judges. I faced some problems of this nature in some courts. But let us look at how this profession evolved. Like many other professions, this was also a family profession. Somewhere or the other, somebody or the other, would be a relative serving in the judiciary. My personal view is that there should not be any privilege or a bar to a judge’s relative being appointed. But if he is directly in the line of succession, his performance has to be that 5-10 % better. If that is so, there should not be any regret. And that’s a burden he or she carries because his or her relative is a judge.
Things have changed over time. We have first-generation lawyers from national law schools. Look at women coming into the judiciary. At subordinate judges’ level, a very large percentage of women are getting recruited as judges. They vary from one-third to 50%. In times to come, I have no doubt, women’s presence like most other fields would be 50%.
There is a saying that judiciary is stronger when the government is weak and vice versa. Is there greater pushback when you have a government with an absolute numerical majority?
I’m a strong votary that the judiciary must be strong by itself. It has an opinion, and it must reflect that opinion. It should not feel that the opinion is either pro- or anti-government. A judge’s job is to decide with law, some part of the heart, and do what you think is proper.
There has always been a little turf war which occurs between the executive and judiciary. It’s normal because judiciary is perceived to be the check and balance of the executive. And when there are politically weaker governments, the political pushback is less. When there are politically strong governments, the pushback is more. But it is how the judiciary handles it. Both executive and judiciary must intend to handle the pushbacks and come to a two-demarcation line.
At your farewell, you said judges must be bold. What do you think is the greatest threat to the independence of judiciary?
The real threat to independence comes only when the appointed judges lack merit. A threat will only come within the judiciary if we don’t have the right judges to decide the cases. If you have the right judges, I believe the judiciary is capable of dealing with it. We have constitutional protection. So, we should be able to take the calls. Of course, one problem is the kind of dissemination of information that takes place today. It creates its own problems. Often, there can be half-truths or there can be no truths. And there is no method of denying it. The judiciary really has no real way of dealing with this other than the tendency to withdraw from cases, which should not happen. The executive must also understand that it is the judiciary’s job of having checks and balances, and it is not antagonism towards the executive. Judiciary should not go the path of performing executive function but testing those functions on the parameters of law.
When I said judges need to be bold, I said what I feel judges should be. Let us see the millions of people who come to the judiciary for redressal of grievances. The government is the litigant in more than 50% of cases. I believe that the person must get relief that is due, if not more than certainly not less. If he gets less, he loses faith in the system. Therefore, we should not have any hesitation in passing an order which is not favourable to the government.
The government has brought a new law that sets a timeline for trial court judges to deliver judgments within an outer limit of 60 days. Your views on these reforms.
Let us first see how many cases are listed before such judges. Now, we are putting pressure on the judge. Yes, he should pronounce but for that he should have the ideal number of cases that he can handle... not if he has hundreds of cases. You should have a certain time for the judge to decide but you should (also) have a certain number of cases too. How will the judge handling 100 cases be able to do it? Then you will have new methods to beat the system. There has to be a study of how and from where so many cases come from. What is the judges’ ratio that you must have? Again, you will have to look at the appointment of judges at different levels. There are situations in states where the pressure on judges individually is very large and the number of judges is small. What is important is to consider how many cases a judge is to hear. An ideal number of cases if the judge hears, on that performance certainly it should take place.
There has also been a criticism from a section that the top court has become a battleground of high political stakes. How do you answer that?
You have seen that the Supreme Court is inundated with perpetual wrangling between governments of different political hues. Is the court supposed to only decide this? These are becoming political battles in court proceedings. You fight your political battles elsewhere. That’s the political domain of an electoral first-past-the-post system. I believe we should not get into the thicket of those kind of cases which are really for politics but decide the cases which are for us. The number of cases which have political ramifications are increasing. There is no doubt about it. That they should not be put in the back burner I agree with. They should also not be, out-of-the-way, taken up every time because then, what do you do about the common man -- the Ram Lal, Shyam Lal cases, as they are called, which wait indefinitely. Priority has to be given to those cases. Are we here only to decide cases with political ramification and high-profile cases. The current cases will have to stay a while despite all the noise being made for their taking up on priority. Those cases (old cases) must also move as they create a sense of not getting justice to a common man.
You authored the decision allowing same sex-marriage. However, the majority denied this right. Was the judgment a setback?
These are all social issues. Sometimes, law has changed before social norms. The country changes; the Hindu law is a reflection of it. There was a lot of debate and resistance, but the law changed and that brought in a change . There are many such illustrations to it. It takes society more time than bringing a law into force. This particular case was one of social acceptance. You had the government strenuously arguing that this is not socially acceptable in India. There were others who were saying that the time has come as change has occurred. There would be very divergent views on this. I believe there will be a time when social acceptability will take it beyond.
You have been a strong votary of personal liberty and passed significant orders on bail? What are the chief barriers for speedy justice?
It’s my view that custody during trial cannot be a replacement for serving out a sentence. Somewhere, the prosecution wants to keep people in custody pending trial. In the Supreme Court, bails, anticipatory bails and notices being issued are more than one-third of cases. These situations have to be tested in different areas so that all kinds of cases do not come to the top court and all kinds of district court cases don’t come to high courts.
We need to have a rethink on our legal system not merely by changing the law. There has to be a thorough restructuring on how we handle litigation. No court in the world can handle this volume of cases. We have to reduce the number of cases going to trial if we want to see proper results. I think mediation at a pre-trial stage can go a long way.