[Interview] CBI, ED are independent, media creating bias; sedition law needs a re-look: Justice Ajay Rastogi

Over the course of four-and-a-half years, Justice Ajay Rastogi heard his fair share of momentous cases at the Supreme Court. Some of these included the Bilkis Bano remission case and the case concerning the independence of Chief Election Commissioners. [WATCH VIDEO].In this interview with Bar & Bench's Debayan Roy, Justice Rastogi talks about how there cannot be a uniform rule to deny or grant remission to convicts based on the gravity of the offence, why the offence of Sedition needs a re-look, how the judiciary can adopt Artificial Intelligence and more.Edited excerpts follow..Debayan Roy (DR): You have had a career spanning 40 years. When you look back, do you feel a sense of accomplishment or do you feel that something is left to be done?.Justice Ajay Rastogi (Justice Rastogi): It is always open and you feel you can do something better. Accomplishment is there, but there is always room (for betterment). We say that better means we want to do something better than what we did. So, I could have always done better than what I did in 40 years..DR: Did you always want to take up law? Did your father, who practiced in the Rajasthan High Court, inspire you to take up the profession?.Justice Rastogi: I was never interested in coming to law. I had seen my father working from morning to evening, with no time for the family. In my family, there were people in the private sector and I thought that was good for me. I did my law, but today I accept that I came into this profession by default, not by choice. God is great, he has given me all things that I did not expect for myself, and better than my own dreams..DR: Talk us through the initial years. How did judgeship happen?.Justice Rastogi: I joined the profession in 1982. Justice GS Singhvi was my senior and mentor. After 22 years of working as a lawyer, I became a judge. I had no judicial background in my family; my father also died very early. I became a lawyer for the High Court in 1990 when I hardly had 8 years of practice. And I continued as a lawyer in the High Court till my elevation. So I was completely in touch with all the Chief Justices, whoever had come. They might have thought that "this boy has some potential" to take him on the bench.Justice Anil Dev Singh came from Delhi as the Chief Justice. He called upon me in 2003 just after the vacation. I was completely shocked when he asked me to be a judge. I said, "sir give me time, let me go back to my wife and ask her whether she is also interested...if I get this opportunity to serve."He said, "I will give you a form, fill it up and give it to me tomorrow morning."I had a lot of respect for him and said,"Sir if you feel no consultation is required, go ahead."I persuaded my wife. I told her that I am getting this opportunity to serve the people, so let us go ahead accordingly..DR: How has the Bar and the Bench at present changed compared to the early 2000s?.Justice Rastogi: Changes are required. If we go back to my days at the Bar, we had a close-knit group among lawyers. I was known to every lawyer in practice personally, and I could recognise them by name and I became one of the youngest lawyers to become President of the Bar.But nowadays, I find that, because of the large volume of lawyers coming into the profession, the senior lawyers have...lost track. I personally feel that there is a gap between the young and the senior members of the Bar.Earlier, Bar members were known to each. Senior members were always taking care of the junior members of the Bar if they were in distress or where they wanted some assistance, financially or otherwise. That particular thing is now missing.Lawyers have become very much concerned about themselves, no one is taking care of younger members. Younger members should be nurtured and guided, mentored, because they are the next generation. Nobody now guides or mentors them. As a Supreme Court judge, I can say that the younger members have a lot of potential. You just need focus.One day, I was sitting with some seniors and I told them they should select 10-15 lawyers and then guide them so that this will be the school, and people will tomorrow come and say they are from that school. That is the asset with which you will go tomorrow from this place. Otherwise, you earn money and go back home. You may be minting money for yourself, but the institution and future lawyers are not benefitting. To earn money is one thing, but at the same time, you must think of your contribution to the institution and the younger members of the Bar..DR: Has direct public scrutiny of judicial work increased in today's times compared to when you joined the profession? Do you think this is for the better?.Justice Rastogi: I will answer your second question first. I will give credit to the media. It is projecting the working of the judicial system. What I feel is, in every system, there are aberrations. The media gives you an insight where you are wrong. You correct yourselves. You are not supposed to respond all the time to what the media is saying.When the media has given me insight into where I was wrong, I corrected myself. Nothing wrong in it. The next step you take in your system must be guided with pre-thought so you can correct something wrong that you could not acknowledge earlier.Public scrutiny is better, and there is a time when it must be there. From my experience, it makes us more conscious of our accountability. The accountability of any individual in any capacity has to be taken care of. Public scrutiny will make you accountable all the time..DR: In the context of the recent Gujarat High Court order citing Manusmriti, do you think such kind of public scrutiny and intervention is warranted? Should judges be more aware that millions of eyes are upon them?.Justice Rastogi: I do not want to comment on that order on the judicial side, because it is difficult for me to know what prevailed upon the judge to pass such an order. But at the same time, for orders on the judicial side, my request to the media is that the comment must be positive. You may scrutinize or comment on it, but what is happening today is we are starting to comment on the author.This, to my view, is not justified. You see, we are human beings. People say that we (judges) are next to God. People have blind faith. But we make human errors. That does not mean that public scrutiny is made regarding the author's own view which he expressed in judicial orders.If the judicial order is not sustainable, then it will be set aside or modified by a higher court. But the way the media and public scrutinises and starts commenting on the author of the orders ... there must be some restraint. Otherwise, judges will not work independently. They will think about how the media or the public may perceive their orders. And if that remains at the back of the mind of a judge, it will be very difficult to pass orders. We pass based on the material, the law on the subject, and the individual approach.I always say one thing, let one petition in the Supreme Court be placed before five different benches. You will find five different orders, because we are human beings, not computers.I have my own notions, I have been brought up in a particular atmosphere, I may know some ground realities also. The other judge may have a different notion, brought up in a different atmosphere, a different sense of responsibility...What I may want to pass may not be agreeable to my brother. So we should not scrutinize the author, but the order can be commented upon, no problem..I always say one thing, let one petition in the Supreme Court be placed before five different benches. You will find five different orders, because we are human beings, not computers.Justice Rastogi.DR: Is the judiciary prepared to adopt Artificial Intelligence? Do you think it will be used just for clerical work or will it replace judges?.Justice Rastogi: It is the need of the hour. But replacing a judicial mind is not possible. In courts, sometimes the matters that come are of the same kind. You hardly need more scrutiny in those matters. But they are pending and, because of paucity of time and long dockets, they are not being taken up.Here, AI can work. It can give us some guidance and we can pass orders. Like motor accident matters. To my understanding, 5-7 minutes is enough to understand and dispose of these matters. Here, our system is working on what has to be the compensation under different heads. So, we can dispose of those matters. But in Constitutional, tax, revenue, individual liberty, and interpretation matters, it cannot.Clerical work can be made faster and certain areas where there are common orders passed in areas of settled law - there AI may be of some use.If we start using AI for other orders, it will be a disaster. Because we (judges) are concerned with human beings, their problems. Laws are made for them, they are not made for laws. As long as law works for them, it gives them what they expect. The day we have citizens made for law, to my mind, it will be a disaster. IBC has amendments and amendments coming forward, because the Legislature finds it is not working for the purposes it was brought in for. So, whenever they find something wrong, they plug it, make amendments. So amendments, to my mind, are to make it more workable and make it more acceptable for the parties..DR: You ruled that the remission policy should be as per the place where the crime was committed. Should the gravity of an offence act as a measure to deny remission? Does it play any role in deciding a remission plea?.Justice Rastogi: See, now that matter is pending..DR: It is, but on a juristic level if you can answer it..Justice Rastogi: Here, the crime was in Gujarat but, in a peculiar circumstance, the trial was transferred to Bombay. The question was in which State was the remission to be decided? The Gujarat High Court said please go to Bombay to three of them. Bombay High Court said, go to Gujarat. So, they were being tossed from one place to another, and that is how the matter came to us.When we scrutinized the subjects, we found that the judgments of this Court were only to examine when the crime and the conviction were in the same State, but they were transferred to undergo the sentence in another State.We said that, ordinarily and by large, wherever the offence takes place, the trial ordinarily takes place there. So go back to where the crime took place, and the remission application can be considered by that State.Sometimes, the gravity of the offence plays a role. It depends on the rule of that State. This Court has diluted it to the effect that if the later policy is more beneficial, it can be considered. The reason is that the convict must pay the consequence if he has certainly committed a crime, but we believe in the reformative theory.And it says that if there is no adverse report against him, the committee has to approve (remission). There cannot be a thumb rule. Every State has its own (rule)..There cannot be a thumb rule, every State has it own rule.Justice Rastogi.DR: In the Bilkis Bano case, when the accused are granted remission, does it send a wrong message?.Justice Rastogi: Since the matter is pending, I will leave it to the Court to take a call..DR: There is a huge problem of undertrials languishing in our jails who are often innocent. Is the judiciary also to blame?.Justice Rastogi: People blame the judiciary. But I will tell you one thing. If somebody has undergone the procedure of trial, it is very, very cumbersome. Trial cannot commence unless the charges are framed. Let us examine the data in the judicial system. I do not have the exact data with me, but in a good number of matters, the charges are not framed. There are so many circumstances as to why. I am not saying whether it is justified or not to grant a stay of the criminal proceedings, but those matters should be taken up and disposed of in a time-bound manner. That way, at least if the trial has to commence or not, people will know. The accused has a sword over his head, social stigma is there. The stay does not vacate. Three years later, he may have to face trial. So do not keep it pending.Some file quashing pleas, some do not. Things come to a standstill when we ask for lower court records. It must be monitored by Chief Justices. My view is that whatever job is assigned to you, whatever cadre or walk of life, everyone must be accountable to the institution to which they are attached. They must fill out their own report based on work every morning to evening. We are very much concerned with salary not coming or other perks - nothing wrong with it. But at the same time, our accountability to the institution is utmost, at every point of life..DR: Would you say that the lower judiciary is responsible for such delays?.Justice Rastogi: Even we are. Our work is the same - to dispense justice. Hierarchy is only jurisdictional change. Otherwise, the kind of work is the same..DR: Moving on to the constitutionality of certain laws, do you think Sedition is a colonial law and should be done away with?.Justice Rastogi: My only request is that this law deserves to be relooked. Legislature should revisit it. Every statement made of criticism cannot be brought into the concept of sedition. The Court also does not interpret it as so. But still such FIRs are filed.This provision has been in interpreted in the 60s. Later on, we re-examined it in a particular case, not in general. That scrutiny is different. You see, we all learn by experience. We change our minds and mindsets also. It has to be revisited in terms of the judgments since made and the kind of matters that are coming to this Court..DR: The recent Law Commission report says that 'tendency to incite' should also be sedition. What is your view on this term?.Justice Rastogi: It is very brief. I also have not gone through (the report) as such. But to my brief understanding, 'tendency' in what reference the Commission has said, I do not know. Tendency to my understanding is those who repeat. That is the only connectivity. It needs to be examined in what context 'tendency' is being observed. Now, one statement itself is enough. You put that person individually or otherwise in a different way..DR: You came to the Supreme Court during the year of the infamous judges press conference, where five judges protested the system of allocation of cases. What is your view and experience with case allocation?.Justice Rastogi: So much has been said on this. My view is, if anything is wrong with our system...Like in our family, if we find that someone is not doing something as expected by us, we sit together and find out the way. But when it comes to going before the public, I have my reservations. It is always better to sit together and work out grievances..DR: Do you think the case allocation process has been up to your expectations?.Justice Rastogi: It is the prerogative of the Chief Justice of India (CJI). No formula can be laid down to guide the CJI. It is as per his discretion, being the master of the roster. To my mind, we should leave it to the CJI. Every system has aberrations. Only a solitary instance came forward when this has been the practice for years. So many CJIs have come. I have seen so many. We never came across a question as to why a matter came before us or another bench, directly or indirectly. We never considered why this matter has gone to a junior judge. To my understanding, whether you are a presiding judge or a junior, it is the same. Matters can be heard by any court, so let us leave it to the CJI..DR: Would you have liked to have been part of more Constitution Benches?.Justice Rastogi: I have been. But yes, it would have been better (if I was part of more Constitution Benches). Not because it is prestigious, but because it lays down the law that goes on for 20-25 years. That gives me satisfaction. All the other matters we decide are on all the subjects. But a Constitution Bench decides on different opinions by different courts when there is confusion and when the Legislature also may not know what to do..DR: In the Constitution Bench judgment dealing with ECI appointments, you had suggested that election commissioners can only be removed after a stringent process akin to impeachment of judges..Justice Rastogi: In the Election Commission case, we felt that some mechanism is needed to uphold the independence of the institution. Time will tell whether the appointments will happen in the manner it has to..DR: But what about other agencies like CBI and ED, which are often criticised for being biased towards the ruling dispensation? How can independence be ensured in these institutions?.Justice Rastogi: They are (working independently). I do not know why this perception is there that they (ED,CBI) are coming after someone because he belongs to a particular political party. It is not fair.If I did something wrong, then I cannot say somebody else has also done it. I have to correct myself. If the ED is calling upon me and I am innocent, the ED cannot put me inside (jail).Media is also biased in these matters. It must restrain and permit these institutions to work. You cannot rule out that there will be misuse by those at the helm of affairs, but these are aberrations which no system can rule out. Give them (ED, CBI) space.Courts are there and if you feel you are being unnecessarily dragged, we are passing orders. We examine and say 'Sorry, ED here was not correct'.ED has not started working today. It has been around (for sometime). These institutions must be permitted to work freely without any kind of interference by any political party. To my satisfaction, they are working. In some matters where procedure etc. was not followed, we have quashed (the case). .DR: What is your view on the Collegium system of judicial appointments?.So to my understanding, the Collegium system is good. It may be more transparent.Justice Rastogi.Justice Rastogi: This question is always put. Let us test it. Earlier, there was another system. It was working for a long time. We started having grievances. Government said it will bring in the National Judicial Appointments Commission (NJAC) ... I have my own reservations, whether the dispensation that the Collegium is doing today would have been any better than if the NJAC were in place. The NJAC members would have ultimately done the same work as the Collegium members, with a human element. The NJAC or the Collegium - the outcome will also be the same. The net result would come the same. We, at the Collegium, look into various aspects, we examine from all corners, we pull out (a candidate's) judgments. What is his approach etc. is really available. Whether he deserves (to be elevated), or has potential to serve this institution or not. Then we take a joint call. There is a fault in the system, yes - we can make it more transparent. We can always make comments. The current CJI has made it clear, the whole gist is there. People should know why we have selected. We are not putting comments against those not selected. The present Collegium puts the complete record of that man. And what better outcome would have been possible if NJAC came out?So, to my understanding, the Collegium system is good. It may be more transparent..DR: What is your view on post retirement jobs for judges?.Justice Rastogi: This question anyways comes. It is very personal to every individual. I can tell you for myself. A month before I had a meeting with the CJI. He said NCDRC and all positions are vacant, please join. My personal view is, not because of independence, but I have worked for long, I am not interested in doing any further work after demitting office.People start imputing allegations that he is taking post-retirement jobs because the government wants something from him. I am sorry. Judges in this Court have worked for the last 20 years, and in the last 3 months I can be pulled down by someone individually? And this commission given to me is now lucrative? Brothers go to do justice to the post assigned to them. And I am sorry for the people who make such comments. If I chose to join (a post) and they say Mr Rastogi joined to ...That is why, in my farewell speech, I said that you do not have to criticise the government to be fair. We decide based on the material before us. But if I criticise, then I am an independent, upright man and you will find my photographs in the first page of newspapers. But if I decide the other way, people will say, that is why you got this commission (post). This perception has grown among people with the help of the media. If it continues, we will have to face a disastrous time.Independence has nothing to do with joining or not joining (post-retirement posts), to my understanding..[Watch Video]