When four senior most Judges express their anguish, there must be something wrong: Justice BA Khan

Aditya AK April 4 2018

It has been a difficult couple of months at the Supreme Court of India, with talk of dissension among judges, Executive interference, and even impeachment forming the backdrop. The legal fraternity, as well as the general public – no matter what views they subscribe to – cannot help but acknowledge an all too palpable sense of unease at the highest court in the country.

To put things in perspective, and to gain a view from the inside, we spoke to someone who has been in thick of it for the better part of two decades.

A former Chief Justice of the Jammu and Kashmir High Court, acting Chief Justice of the Delhi High Court and judge of the Madhya Pradesh High Court, Justice BA Khan has witnessed first-hand the skeletons in judiciary’s closet. The self-proclaimed no-nonsense, relief-oriented judge (he was christened as ‘Badshah Khan’ by his peers) has never cared much for finding favour through his orders, and has often paid the price for it.

In the first part of this interview, Justice Khan offers us his take on the recent happenings in the Supreme Court, and issues surrounding the higher judiciary in general.

Judges Press Conference

It really pains me to see this; we have fallen on very bad days. I am aghast when I see that the dignity of the Supreme Court is coming down in this manner. People are losing faith in the Court when they see this division among the judges.

The present Chief Justice of India was incidentally my colleague at the Madhya Pradesh High Court. The CJI is the head of the family and his foremost priority is to safeguard the independence of the judiciary. He has to reassure his colleagues and stand up for them. Every CJI will have face some sort of pressure or influence, but he has to stand up to it.

“If there is any threat to the independence [of the judiciary], I am all for what the judges did.”

It is a disastrous day when his colleagues gain an impression that the highest court of the land is being intruded into by some kind of influence, and nothing is being done on that. Left to me, I would say that all honourable judges of the Supreme Court must put their heads together to see that the independence of the judiciary is preserved and maintained. How that can be done is for them to manage.

I was shocked to hear the statement of the four senior most judges, who are most upright and of proven integrity. When they express their anguish, there must be something wrong somewhere. Governments come and go, CJIs come and go, but the institution remains.

If there is any threat to the independence [of the judiciary], I am all for what the judges did. If I were in that place, I would also come out in protest. When judges of the Supreme Court themselves say that there is government interference, what more can I say about that?

Executive interference in the Judiciary

The government must respect the integrity of the institution. Even if I am a dictator, so long as I am bound to a Constitutional scheme, I must respect the autonomy of an institution. Fiddling around happens in every government, but invasion and intrusion, that too crudely and rudely, should not take place. No Chief Justice should allow himself, for any self-gain, to become an instrument of the Executive. That would spell doomsday for the country.

Impeachment of CJI Dipak Misra

I do not know the merit of this impeachment motion. But why should there be an occasion to move such a motion? It means there is something wrong, somewhere. If you allow that thing to go under the carpet, then you are damaging the institution. There has to be some effort to highlight the problems and to think of ways to strengthen the institution.

 

The Chief Justice is an individual, he will not be there tomorrow. But the Supreme Court will be there always. And that Supreme Court must be protected from all outside influences.

System of Judicial Appointments

This Collegium system has been found to be faulty. We have been experimenting with various systems – firstly it was Executive-dominated, and how you have the five senior most judges sitting together and making appointments.

I have seen how this system works from the inside, having been in the Collegium of three different high courts. I was the second senior most judge at the Delhi High Court, and during that time I felt pressures. But myself and the Chief Justice at that time put our foot down and said, ‘Nothing doing. Even if the Chief Justice of India tries to pressurize, we will stand by it’. So, they [the Executive] were not allowed to manipulate anything until both of us went away.

If you carry on with the Collegium system, then make it transparent and accountable, like Justice J Chelameswar has been saying all along. Give a reason why you are refusing to appoint someone. Just as they dismiss an SLP without giving reasons, they are doing the same with appointments.

They must lay down criteria for appointing persons; right now, it is being done based on likes and dislikes, and perhaps political affiliations. If you want honest judges, then lay down a system of assessing merit.

They were supposed to finalise a Memorandum of Procedure (MoP) which would contain these criteria. How come it has not been laid down for the last three years? How can you ensure that you will have an honest judge or an honest Chief Justice who will withstand all kinds of pressure, when you can’t do this? As far as the recruitments to the higher judiciary is concerned, a reform is needed. The NJAC Bill that the government brought in was deficient. So why not look at how it works in different countries?

If the system of rule of law and the Constitutional scheme is to be maintained, you have to strengthen the institution irrespective of your political affiliations, personal interests, etc. That is the only way out. But I doubt that day will come, in our lifetime at least.

Retirement Age of Judges

Raising the retirement age of judges is a must. For example, in the USA, you have judges who sit for life, till they are incapacitated. If you see the lot of retired judges today, most of them are fit. There is an association for retired High Court and Supreme Court judges; I would say that is a talent pool. Those are experienced people who have worked as judges all their lives. Why don’t you utilise their services? When you complain about pendency, why don’t you use them to solve it in some way?

The present retirement age is not in line with the mental and physical capabilities of the judges. But I don’t think raising the retirement age will help solve the problems of the judiciary like government interference, appointing based on likes and dislikes, getting rid of inconvenient judges, corruption, etc.

Post-retirement Jobs

What can I say about that? (laughs) Half the problem [with the judiciary] is because of this, and I have it witnessed it personally. I was one of those hot-headed judges who did not take an assignment after retirement. I went straight to Supreme Court practice and also did some arbitration. It was a later stage that out of compulsion, I took up the role of Chairman of the Jammu and Kashmir State Accountability Commission (SAC).

Experience shows that when a judge nears the retirement age, he starts getting into a panic. That is a very vulnerable period, during which a pliability gets in, and finds expression in different ways. When this happens at the highest level, what do you tell people who are witness to it? Does such a judge think he is sitting in an ivory tower, with no one looking at him? He is facing the public everyday, so everyone knows what he is doing. So whenever he gives the impression that he is tilting or shaking, people will form an opinion.

So, should a judge be given an assignment after retirement? I say, why not? His talent must be utilised. But don’t do it in a quid pro quo. In case there is a vacancy, and where the eligibility is having been a judge. That place must be advertised, applications must be invited, and criteria must be laid down. You will find people in a number of commissions knowing nothing about that particular field of law. So why not utilise the services of retired judges in a transparent manner?

The government should not dangle the carrot before them; they must be offered assignments as per merit.

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