Justice Sanjay Kishan Kaul: ‘Court can’t be placed to politically handle the Govt… the Court can’t be the Opposition’

By God’s grace I’m not in need of money, so I will work only to keep my mind occupied. If there are arbitrations or opinions that come my way, I will do that at a pace that I can control but, otherwise, I want to spend time with my grandchildren.

What is your view on post-retirement roles offered to judges by the government?

Why should a tribunal interest me? I have done this for almost 40 years as a lawyer and a judge. Then there is Governorship and, the way I see it, it compromises my standing. That means I did things because I wanted something from the government.

Would a Rajya Sabha nomination also fall under this category?

All political posts. I am not meant for this as I do not want patronage. But different people have different perspectives. If somebody were to ask me, yes, I’d say I have a special interest in Kashmir. I would like to see peace in that area. Other than that nothing interests me. I believe in what I wrote in the Article 370 judgement. I know there is some criticism, but I’m not bothered by it. The creation of Kashmir, it’s coming into India and the manner it came in – it is a case by itself. I’ve always felt that it was meant to, ultimately, (be) completely merged in a phased manner. So it is taken a little time now, that’s a political decision whether to do it or not to and that political decision is taken by somebody. Even if there are two views possible about the procedure in which it is done, I think something which advances the interest of the country in many manners and helps the state to stabilise is more important.

“When there is a strong executive, there will be a little pushback for the judiciary,” said Justice Sanjay Kaul. (Express photo by Praveen Khanna)

But some of the critique is how the judiciary gives the benefit of the doubt to the government which has a strong majority in Parliament…

I may not agree with all judgements. I was a party to the Rafale verdict and my own thinking is that we are not to sit in judgement over contracts. This has been my judicial view in all contractual matters and I was looking after tender matters in the High Court for a very long time. There are very limited parameters on which you examine these issues. Otherwise, commercial activity will be affected. My view was with their buying a plane, if there is a criminal issue, then go and prosecute; you cannot come before us (citing) Article 32 of the Constitution for breach of fundamental rights. My views on bail are perceived to be fairly liberal and very different to that of the government. Even on judicial appointments, I’ve held a different view.

It is perceived that this government is more aggressive but let us look at whether this government is more aggressive or whether any majority government becomes aggressive.

Let’s take from 1950. All of them will always be a little tough and that is part of the job. They don’t like anybody to interfere and the judiciary’s job is to check and balance. So it is the natural flow of the task which the judiciary has to perform. You look at Mrs Gandhi‘s time or even Pandit Nehru’s time… when they established majority governments… You see how many changes in law were brought and, of course, the view then was that they were socialist in character. Today, many things are happening in terms of where the government wants to take its economic policy.

A weak opposition is also a problem. The absence of legislators from the opposition of the Parliament is an important factor. Maybe in public perception, it is their inability to politically handle the government. Now, the court cannot be placed to politically handle the government… The court cannot be the opposition. The judiciary is a check and balance but to say, look, the government is doing this wrong and now, you have to do something about it — is wrong.

Sometimes we forget the past. When there is a strong executive, there will be a little pushback for the judiciary. 1990 onwards we have had coalition governments. So the judiciary was able to advance its cause, sometimes even transgress into some areas, I feel. But with the majority government coming, it was expected that some steps would have to be taken back.

Courts have often flagged that legislation is passed without debate in a rushed manner… such as farm laws, criminal law bills or regarding the appointment of the chief election commissioner last week…How should the judiciary look at these aspects when challenged in court?

The judiciary’s task is different from their task. How much pre-consultation should there be is the Parliament’s task. Now, this government has a system by which apparently – consultation takes place in a different manner… not so much in the public domain but behind closed doors.

My view is that before a law is brought into force, there should be a legal impact study. For example, Section 138 of the Negotiable Instruments Act (which criminalises cheque bounce), I have said that you suddenly cannot bring a law without seeing how the system would be impacted. That is one aspect and the second aspect is legislative drafting. It is a very important skill and that is now almost entirely outsourced. Nicely drafted legislation prevents unnecessary litigation. All said and done, nobody can say that our criminal laws have not stood the test of time…take the Evidence Act. I am not going into what measures should be taken or not but it is an extremely well-drafted legislation.

But how the government gets it (drafting legislation) done and where it is outsourced is one thing… but today we are a very divided society in some ways. That is, because, politically, either people are with the government or very anti-government. There are many things which the government does, which are good, but maybe things which we may not agree with… traversing that middle path has become more difficult.

There is a charge of judicial evasion against the Supreme Court…that important issues concerning the government have not been heard before they have become fait accompli.

There are some cases which are purely legal cases. But over the last few years, not necessarily under this government… the number of what I would call politico-legal cases has increased. They are basically political decisions, which have legal ramifications. So the court, of course, has to deal with the legal ramifications. But they get hyped to different levels because of the political consequences. And with very, very divergent politics, has meant there is inability to have a dialogue. I have always been a votary of dialogue but we have reached a place where, you know, as if there is no other opinion possible. It is all right to disagree.

Do such political stakes weigh in on a judge’s mind?

We are all humans. It must weigh but our training is to keep personal beliefs, other factors aside and as much as possible, take a dispassionate view of things. I personally take a call after thinking and come to the conclusion that I believe what I’m doing is right, it is very subjective. We also change our views but at the time of the decision, we do what is right then. The test I have applied is to see whether my heart and mind say that what I’m doing is the correct thing. As long as it is so, it does not bother me even when there has been some tussle with establishments.

“For institutional reform, ultimately there has to be consensus. For which people have to meet,” says Justice Sanjay Kaul. (Express photo by Praveen Khanna)

I say establishments because by the time you become a Supreme Court judge, you would have dealt with multiple governments and as a Chief Justice of a High Court with (the) state government.

What did you mean when you said judges are not fund collectors for the government?

We cannot have the jurisprudence of the 1970s and ‘80s because this country was in a different frame at that time. In revenue matters, a government lawyer makes the argument that these are the mistakes for the state…Rs 500 crore or Rs 5000 crore… What difference does it make? When I say fund collector in such matters, it is not your job to always see the state’s view. If there is limitation, then government limitation must be waived off? You cannot import a 1980s land acquisition decision and simply apply it today. It is not fair to the average citizen. This balance between the citizen and the state has to be maintained. If he is a crook, throw him out, but it is not as if that the government is always right.

Bail is one thing that I feel very strongly about which is why I have talked to district courts about it. Wrongly granting bail is dishonest. Not granting bail is also another nature of dishonesty … It is intellectual dishonesty. Keeping someone in custody during prosecution cannot be a substitute for a conviction.

But for economic offences, the government argues that there must be a high bar for granting bail.

I do appreciate the difference between serious economic offences and other offences. So, therefore, the law is a little different for serious economic offences. But then with today’s technology, you cannot have prosecution continuing for years together which means you have to keep people in custody.

To say that, well, the jurisprudence of bail for economic offences has to be totally different from the jurisprudence of bail otherwise does not gel with me. Sure, economic offences affect the society at large but crime against the body also affects society at large. Are they completely different things when these offences also carry life sentences?

It is almost becoming an alternate criminal justice system where the punishment is the period in custody because you don’t know whether you will be able to convict or not. That is not how the criminal justice system should work.

Bail hearings in these political cases are like final hearings. It is a complete waste of time to my mind. How much judicial time goes in this…… Especially when you’re not actually proceeding with the trial. I believe a serious thought should be given on how many cases have seen convictions and how much time it has taken for conviction. So the government can weigh which cases it should litigate.

There is concern that stringent laws meant for serious, economic offences or terrorism are, in a sense, used to stifle opposition…

Yes, but the solution is to focus on a better prosecution system. When these cases are decided swiftly, that is a signal. How do you explain that we have so few forensic labs that you don’t get a report on time? In cases I have handled, I have (said) outsource it because it can’t be a reason to keep somebody in custody indefinitely. The problem is also that nobody is washed in milk (doodh ka dhula). The only solution to more balanced approaches is if trials proceed quickly. You’ll know whether he’s done something or not done something.

What are some of the things that you would change?

First, to say for some offences for which sentence is up to 7 or 10 years… Those who undergo anything from one 3rd to half of the sentence and are not repeat offenders, take a bond and release them.

Plea bargaining and sentence bargaining must be implemented. America has succeeded in this. California, for example, tries 3% of all its cases and the rest are settled. We want to take the smallest to the largest cases from the lowest to the highest court.

“Sometimes doubts are cast about a judge and since impeachment is the only option, transfers are preferred,” says Justice Sanjay Kaul. (Express photo by Praveen Khanna)

How many tiers of judicial scrutiny should a case get? I believe two independent (tiers of) judicial scrutiny are enough. A revenue case should not traverse from the revenue court to the Supreme Court. Individually, I adopted this practice and I would say if there are three concurrent findings in a civil case, I will not touch it with a barge pole. Similarly, if in the first appeal and second appeal, courts have decided the same, then let’s not get into it again unless there is a constitutional challenge. However, there are no institutional solutions to these problems yet.

It is true that dismissal rates are high in the Supreme Court, but we dedicate two days of the five-day week — Mondays and Fridays — to these admissions and dismissals. We are devoting almost 40% of judicial hours in simply weeding out cases.

How does the Supreme Court fare on bail?

I think the Supreme Court is sending mixed signals on this. Maybe there has to be a uniformity and a pattern in what is done. See, unlike many countries, we don’t have one single Supreme Court. Each bench of the Supreme Court is a Supreme Court so a litigant also takes a chance because there are different perceptions which may arise in each bench.

One solution is: say, on a regular hearing day (Tuesday to Thursday), possibly three judge-benches across the board would be a better idea instead of two. If something is worth admitting in the Supreme Court, it may be worth spending three judges on it.

Judges come from different courts, different scenarios, different type processes, different parts of the country. We are a wide, varied country also…we are not unitary in character in the Supreme Court. Three-judge benches I feel gives more stability. At the admission stage, a case can go to two judges. But the question is whether there is thought put into all of this. Is there someone looking into these things?

Isn’t that the role of the Chief Justice?

To some extent, yes. In the High Court, the Chief Justice checks up on how many cases are there and who is deciding them. A High Court Chief Justiceship is one of the most challenging tasks. In the Supreme Court, the difference is that it is a very registry-oriented court. Whatever happens is really between the Chief Justice and the registry. The high courts are, principally, judge-committee administered courts. So the participation of judges is much more which is not there in support.

Is that why the issue of master of roster arises frequently in the SC?

It is also the final court which is also why this issue arises. It is certainly a Chief-centric court. For institutional reform, ultimately there has to be consensus. For which people have to meet. At the High Court level, judges may be coming from the same salt… same Bar and the interaction is much more. At the highest court, it is very different…so it becomes Chief-centric and registry-centric.

What about the institutional response on how the SC handled the sexual harassment allegation against CJI Ranjan Gogoi?

The institution does get troubled. Well, no doubt, it is troubling. There are different perspectives on how that issue should have been tackled. Transparency doesn’t mean sitting in a glass house. Every institution has some aspects of transparency, some inner mechanism on how it works. Therefore, it is important that those boundaries are respected.

What about transparency in judicial appointments?

The problem with today’s system is everybody has a view on everything without having studied how it is. So in actuality, a Chief Justice carries out some element of a search on who to appoint. He consults…at least, I consulted judges across the board in high court, got their opinion, consulted some and found out who are the lawyers who are meaningful and respected and get their opinions. I would seek an informal intelligence report.

Then gender representation, community representations, subject representations… because Chief Justice only hears largely writ petitions and appeals and not criminal side cases. So you try to structure and get the right talent because the High Court is the base for the Supreme Court. So, after that the Collegium recommends, it goes to the ministry, IB input, government input, state input, then the consultee judges of the Supreme Court, then only a HC judge gets appointed.

So, whenever you have a Supreme Court appointment, at least when I came to the Collegium, I insisted that I want to see to it that their judgements (are) circulated. We still have a perspective, but in the appointment process, the government has always had a role and (that) will remain. Some creases have to be ironed out. Everything is thought of and taken care of. Many times it happens that the view of who the government wants or maybe desirous of having as a judge and who we think is good enough may also tally. But sometimes disagreement is also possible.

In the case of Justice Victoria Gowri, the Collegium was caught off guard…

But it went through the whole process…the people who woke up suddenly, why did they wake up suddenly? So there are agendas on both sides. That is the problem. But I don’t think there has been any complaint on her judicial performance so far.

Isn’t that alarming? That the name went through the whole system without her party membership being flagged?

These kinds of things, it’s very difficult for the judiciary to find out. We are dependent on the government or government agencies to some extent for these inputs. That can be a problem. I think it is important to remember that a judge doesn’t only decide government cases. The government must look to see that good people are appointed to the bench.

There is a charge of opacity of the Collegium from even within the system…Judges who were transferred say they do not know why they were suddenly packed off.

There are many reasons for transfers. Sometimes doubts are cast about a judge and since impeachment is the only option, transfers are preferred. Second, is handling temperament issues. These are what I label as judgeship not resting easy on the shoulder. There are cases in which judges are persuaded to shift out also because some of the good judges may get a better exposure somewhere else… Maybe in bigger courts.

This is the only check and balance really for a High Court judge and we have not developed any other system. If somebody says, well, there is some objectivity… Yes, I have known of cases where someone is wrongly transferred. In the collegium, I was part of, I can’t think of any chances that can be labelled wrong. There may be some differences in perspective, but sometimes there is a consensus even if you hold a different view.

What about Justice Sanjib Banerjee? A Chief Justice of a major High Court saying he only got an email about his transfer without any reasons..

So I also got an email when I was transferred from Punjab and Haryana to Chennai. It ultimately was a very satisfying move but that’s a different matter. It’s not that somebody talked to me…I only got to know the reasons when I broached the topic later.

Is that the best way to handle a constitutional office?

You’re probably right, I would have thought that somebody should have called me and told me that look, we want you to take over the Court or something. I’m not averse to the thought process where there should be better counselling and attention to this.

On Sanjib Banerjee, I personally have had a very high opinion of him and honestly, what happened should not have happened with him. I must say that though I was a former judge of Madras High Court, I was never consulted on his transfer.

On judicial appointments, in your experience has the government proposed names to the collegium?

Theoretically, no. It is a recent thing, where the Collegium has said no, and the government is sending it back (for reconsideration). (In) very few cases maybe we may have reconsidered but by and large we have reiterated recommendations where we said no and have so far stuck by it.

What is your prescription for the government then on appointment of judges?

I may not be a votary of this method of appointment of judges, but still it is law, it must be followed just like it must be equally applied when it supports the government.

The Parliament passed a law unanimously. And then the court quashed it. That is something which this government has not been able to (come to terms with). The collegium system is (a) judicial creation, it is not part of the Constitution. The exigency of that situation possibly required it and it worked well for many years. Maybe when the problem started, it was not worked well…I wouldn’t blame the system alone.

The NJAC, I believe, was finished too suddenly and did not get a chance. One method could have been to keep the challenge (before the Supreme Court) pending, see how this would work and then maybe tweak it.

In any case, the troublesome part of the NJAC was the presence of six people which would force a veto against the judiciary. You needed a 4:2 majority otherwise there would be a deadlock with 3:3.

My own view is that the Chief Justice of India should have had a casting vote. It would have given a predominance to the judiciary. Once that is done, then the appointment must go through and there should not be a second look at it by the government. NJAC could have been balanced if the judiciary predominance was protected. I think politically also…it could have possibly been accepted if it had been tweaked rather than set aside. Judges who were part of the bench later on said that it should have been not so (set aside)…

So, in my view, sitting across the table and dealing with it is preferable than any endeavour that would need side discussions. Because then you can tell the government why you feel something can’t be done or can be done. World over, governments have a say in judicial appointments and I don’t know of a country where there is no say. So India was, in some way, unique when it brought in the collegium system.