If you don’t address them as Your Lordships, you will not be elevated, This sort of inflated ego exists: Fali Nariman

Bar & Bench March 3 2019

By Firstpost (BV Rao and Shishir Tripathi)

Senior Advocate Fali Nariman has been in the profession for 68 years. In this interview with Firstpost, Nariman talks about the Supreme Court in the backdrop of the book authored by him surrounding the controversies that have plagued the Court. The eminent jurist gets particularly candid with his views on the Press Conference held by four Supreme Court judges in January 2018 and the implications of the same.

Firstpost: Your last book was India’s Legal System: Can it be saved? Your latest is God Save the Hon’ble Supreme Court. Does it show dwindling confidence?

Fali Nariman: God Save the Hon’ble Supreme Court happened because of something that I was very disturbed by. It had never happened before that justices had fallen out openly as at the press conference (January 12, 2018). That made me very, very sad. In my 68 years of practice, I had never come across such an incident.

When Chittatosh Mookerjee was the Bombay High Court Chief Justice (1987 to 1991), 200 advocates complained against five judges. Within two weeks, Justice Mookerjee not only went through it but also stopped giving work to all five judges. That’s how he preserved the image of the court. We are not concerned about individuals. We are concerned with the institutions.

Justice Chittatosh Mookerjee

The judges came to the court for weeks but had no work. So, they went to Justice Mookherjee. He told them that he had received a representation in which he saw considerable merit and stopped giving them work. But in the same breath, he told them they could file a writ petition against him under Article 226 and he would abide by the judgment. Not one of them filed. This is how the integrity of an institution was kept intact.

Does God Save the Hon’ble Supreme Court suggest a lack of confidence in the institution in saving itself?

Yes, yes, definitely. Because this is about its public image. People are not aware about the nitty-gritty as to which judge is doing what, they just know the institution. A decision that a judge gives is seen as a decision of the Supreme Court. Therefore, all of this becomes important. Yes, looking back now, perhaps God has saved the Supreme Court. I can only attribute it to that. The confidence of the public has to be restored and it can be done only through examples. Any amount of speechifying will not do it.

Would the burden of the judges’ revolt have been lighter if it was about a constitutional issue rather than personal conflict?

Yes, there wouldn’t have been any problem. There are matters where judges differ honestly. The law of ‘basic structure’ is a judge-made law. Justice Khanna devised it from his own head. It was passed by a very thin majority. The judgment was delivered at a time when it became necessary because a majoritarian government was trying to control everything. It was trying to establish a committed judiciary. A majoritarian government always wants something. Congress did that and the BJP is no different, though the Congress was a little worse.

Constitutional problems can always get resolved. But institutional disease – this is a disease unfortunately – is very difficult to eradicate because people lose confidence. You (judges) yourself lose confidence (in each other). In this case, the complaint that the four judges had against the Chief Justice, they didn’t discuss with other judges. Why, not? That is how you can keep these things in the house. The rebel press conference was the crossing of the Rubicon in many ways. And, one of the worst manifestations of the revolt is that it became open season for anyone to throw muck at the judiciary.

Now they are facing that problem. They just fined a lawyer `10 lakh or something and rightly so. We are not used to such sort of advocacy of lawyers accusing (the judiciary). I told one of the lawyers, if you tell me a particular judge is responsible for this, this and this and you want to impeach him, go right ahead. But when you want to impeach the Chief Justice… remember the whole Constitution rests on him virtually…. then shoot to kill and not to hurt. When you shoot to hurt, you don’t hurt an individual but an institution. We have had so many Chief Justices, one Chief Justice hurt or not hurt makes no difference to me. But what makes a difference is the institution.

Read the draft impeachment note being circulated against Chief Justice of India Dipak Misra

Has the integrity of the institution of Supreme Court suffered?

Indeed. People, especially on social media which I call underground media, are saying and writing all sorts of things. That is why we need responsible lawyering, responsible journalism and responsible judging. An irresponsible judge is a disaster. We have had disasters before.

I will tell you how a particular problem was dealt with. We had a Chief Justice for about 25 or 30 days (Ed: reference to KN Singh, CJI for 17 days from 25 Nov, 1991.) He said he would take up criminal cases and ensure all are resolved. We were all glad.

The criminal case he took up was a particular Vanaspati case. He decided the case against the government. (Ed: Vanaspati was penalised `5 crore for fraudulent imports. The judgment whittled down the penalty to nearly one-third.) But MH Kania, the next CJI – who wasn’t a great judge or anything – handled the issue with aplomb. He constituted a three-judge Bench of the senior-most judges…they all knew what had happened. They reviewed the earlier judgment and set it aside. Finished. No blame on the judges, no blame on the court. It was brilliant. Nobody even today knows about it. They will know only because I have mentioned here for the first time. You have to have statesmanship.

You spoke about responsible lawyering…

Yes. This is exactly the problem. Lawyers went amok, virtually, because of all this. All sorts of things kept happening. I have mentioned all this in my book. On November 8, a bunch of petitions are mentioned (before a judge). He places them before the Chief Justice for posting. The next day, the same petitions are before the same judge (Ed: Reference to Justice Jasti Chelameshwar). He takes them up because it was allotted to somebody else by the CJI. And he issues this enormous order against the Chief Justice and then the game starts. The judgement gets set aside and everyone wonders why. These things harm us. This is all irresponsible talk.

Read also: An Unusual Hearing in the Supreme Court: Four questions to ponder

Amidst unprecedented scenes in the Court of the Chief Justice of India, the Constitution Bench headed by CJI Dipak Misra set aside an order passed by the second senior-most judge, Justice Jasti Chelameswar.

We bestow SC judges with wisdom that is humanly impossible to possess…

You are absolutely right.

It is illogical but that is the trust we have in the institution of the Supreme Court of India…

Yes, trust is so important. But the way the rebellion unfolded we were struck by the pettiness of it all. Senior-junior, who hears which case and who became CJI and all that. It shook people’s trust in the wisdom of those manning the highest court.

We have never seen anything like this. If you go to the Chief Justice’s court today, you will find a portrait of Justice Bijan Kumar Mukherjea, the third CJI. When it was Justice Mehr Chand Mahajan’s turn to become the CJI, Prime Minister Nehru wanted to supersede him with Mukherjea. But Justice Mukherjea not only refused the post but threatened to resign.

By contrast, during the Emergency, Justice Ray accepted the post even though three judges he superseded resigned. He did not even tell Justice Hidayatullah that he would be taking oath the following day, even though the two used to drive to the court together. What to do…human beings. Therefore, God, give us individuals who have honesty. That is more important than God save the Supreme Court. No use saying those judges were good these are bad. They have given very fine judgments. But that’s not enough.

The soul of the Supreme Court comes from judgments plus…

Yes. Judgments plus. That plus is so important. You write good judgments or bad judgments, that doesn’t excite me. For example, the judgment that Chandrachud Junior (Justice DY Chandrachud) wrote about Amit Shah (BJP chief) created a lot of controversy. I do not agree with the reasoning, but he was perfectly right.

If I am appointed as a commissioner of enquiry to enquire into why Venkat is guilty of A, B & C and suddenly one fine morning I’m dead, how is Venkat responsible? The way these people went about the case saying some judge said he had heart trouble and then they said oh, we just wanted an enquiry (into Judge Loya’s death) was not right. You can die, I can die. The whole country was up in arms saying how have you let him off? Where is the question of letting off?

Supreme Court dismisses Review Petition in Judge Loya case [Read Order]

The SC’s integrity is not just about good judgments but what you term as collegiality. When you meet judges when they are not in robes what do you advise them?

There is lot of hypocrisy. I am all for same age for HC and SC judges. I have seen Chief Justices of the High Courts referring to SC judges as ‘Milord, will you have tea’ and all that. In England they call each other by first their names. But here everyone understands that if you don’t address them (SC judges) as ‘Your Lordships’, you will not be elevated. This sort of inflated ego exists. The bungalows and all that paraphernalia adds to it.

In Singapore, I saw a minister drive his own car and park it. There they get very good pay but nothing else, no perks. We live on perks. I have seen in USA that judges carry their own brief-cases. Here orderlies carry even the spectacles of the judges.

Is it a miracle then that with such frailties we have an independent judiciary?

Indeed, that is why I talk about god saving it.

Do you think that this incident has forced the judiciary to introspect?

Unfortunately, I don’t think so. In fact, they are far too busy to think about all this.

The dissenting judges talked about CJI being first among equals but also complained about important cases being allotted to ‘junior judges’. Isn’t that contradictory?

Totally. That is why I have stated in the book that some of the most important judgments were delivered by judges other than the five senior-most.

Are all cases in the SC not equally important? Why create a hierarchy?

Yes, every case is of utmost importance. Creating any hierarchy is wrong. Even if you are made to sit in a criminal case, it’s very important because you are deciding about the life of an individual.

Did you see any regret among the justices, do they feel this could have been avoided?

They all said that they were right. Perhaps the only lesson they have learnt is that such a disaster can compel someone like me to write a book. And that should be avoided at all costs (laughs).

This interview was first published on Firstpost. It has been republished with permission.

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