The Supreme Court should function as a Constitutional Court, Justice BA Khan [Part 2]

Aditya AK April 17 2018

In the second part of the interview, Justice BA Khan takes us through his career as a high court judge, revealing how political influence plays a role in elevation and transfer of judges. He also speaks about the unique style of judging that led to his being christened ‘Badshah Khan’.

Justice Khan’s initial inclination was towards politics, and law was nothing but a means to an end.

“In those days, doing law was sort of a qualification for becoming a legislator in Kashmir. In that pursuit, I studied law.”

As the Advocates Act was not in operation in Jammu & Kashmir at that time, Khan J chose to move to Delhi. However, having no support system in the capital after obtaining his bar licence, he was forced to go back home, where he would contest Assembly elections.

“I contested and lost the election, largely because of the poll rigging that was rampant in those days. My political instinct was killed, after seeing how the elections were being manipulated in Kashmir. We had a history of not having a fair election till 1975.

I felt I was not suited to be in politics, as I later found that I had a sense of fair play, which you do not need in politics.”

Thus was born Bashir Ahmad Khan the lawyer. After a few years of practice in the Jammu & Kashmir High Court, he would go on to become Advocate General for the state. Later, judgeship beckoned.

Justice Khan was recommended for appointment as a judge as the same time as former CJI TS Thakur

“My judgeship was a pure accident; after retiring as the Advocate General, the then Chief Justice SS Khan called me on a day when there was a curfew and asked if I could come to his residence. When I told him that I had no means to reach him, he sent his car and picked me up. He asked for my consent to be a judge, and I agreed. Former Chief Justice of India TS Thakur was recommended along with me.”

He goes on to shed light on the difficulties he faced as a judge of a High Court in the midst of strife.

“In J&K, there was a lot of turmoil; every administrator was a law unto himself. The court process was not working, and a judge had to work under great stress and fear if he was honest. A Damocles Sword would always loom large on a judge’s head. There was always a fear that you would be taken to task for your orders. There was no freedom to work in that atmosphere.”

And Khan J would not exactly make friends with those in power during his tenure. The ruling government was in favour of him leaving the state, and in October 1997, he would be transferred to the Madhya Pradesh High Court.

Khan J came to enjoy his time in this new role; it was a far cry from how things worked in his parent high court.

“In Madhya Pradesh, everything was working according to the rulebook; the atmosphere was very conducive for a judge to work in, especially for a judge who was not known to anybody. The quality of litigation was much better at MP, because in J&K, all activity had stopped and the High Court was mostly engaged in dealing with Habeas Corpus matters. In MP, there were varied types of matters.

There was also a difference in institutionalisation and tradition. For example, the MP High Court had produced a number of stalwarts including JS Verma, who became Chief Justice of India. I had a fairly good stint heading the Indore Bench, and I had the blessings of Ashok Mathur, who was a great Chief Justice.”

After serving at the Indore Bench for two years, Justice Khan was shifted to Jabalpur, a place where he felt “suffocated”. At the time, his family’s circumstances had deteriorated, prompting him to ask for a transfer back home.

“Chief Justice of India AS Anand said that I couldn’t be transferred to J&K, since it was opposed by the same dispensation that had managed my transfer to MP. He said he could meet me halfway and transfer me to Delhi. I jumped at the offer, as I could be closer to my family.”

Justice Khan looks back fondly at his time at the Delhi High Court.

Delhi High Court

Justice Khan was transferred to the Delhi High Court in 2000

“I got a lot of exposure here, and I got to rub shoulders daily with Supreme Court judges, who were stalwarts in their own right. I was working with judges who went on to go to the Supreme Court like Justice [Madan] Lokur and Justice [Dalveer] Bhandari; they were all juniors to me.”

It was here that he was given the name ‘Badshah Khan’, because of his presence in court. He narrates an incident that led to the christening.

“One of the secretaries of the Bar Association after coming out of my court, told his colleagues that there is a Badshah sitting in the court! (laughs) That is how I came to be known as Badshah Khan; people still call me by that name.”

He goes on to explain why he was regarded as a Badshah in court.

“At no point was I a bookish judge or a technical judge. I was a resolution-oriented judge; I would not waste time giving dates and calling for rejoinders. I would straight away diagnose the grievance of the party and ask the lawyer to argue on the legal issues and settle it as soon as possible. My approach was to rise above the letter of the law, so that the interests of justice prevail.

In many cases, you will find that the letter of the law clashes with the interests of justice. While Lord Denning might have followed the letter of the law, I would discard it if it came in the way of doing justice. Because of that, I came to be known among the judges and the litigant public.”

On that point, he believes that judges have a huge role in dealing with pendency, an issue prevalent across courts in the country.

“A judge must conscientiously engage himself in the task of ending a dispute. The tragedy of the system is that for even a minor issue that can be resolved even by a Panchayat in five minutes, courts take 5-10 years.”

Khan J would go on to become Acting Chief Justice of the High Court. It is with great regret that he says he should have been allowed to stay on and become Chief Justice.

“I never wanted to leave the Delhi High Court; I should have been Chief Justice. But then, I do not know what prevailed with the powers that be at that time. People at the helm perhaps did not want me to come in the way of their scheming.”

It just goes to show how the judges who get transferred are in the dark about what happens in the background. He reveals another probable cause for his transfer.

“At the time, there were peace talks going on between the Centre and the separatists in Kashmir, and there was a demand for a local Chief Justice. There was a demand for every office to be filled by a local, and I fitted in that scheme of things. Though it was contrary to the established policy that the Chief Justice of a High Court cannot be from the same state.

Either of the two things prevailed, and I was told by the Chief Justice that I would have to move back to my parent court. He said that if I didn’t accept, an order would be passed against me. I left the Delhi High Court with a lot of regret.”

And thus, the prodigal son returned to his homeland.

As Chief Justice of the J&K High Court, he would try to improve things. He was commended by President APJ Abdul Kalam in his Republic Day address in 2006 for his efforts to bring legal aid to the victims of the devastating 2005 earthquake in the valley.

Justice Khan (l) pictured with former President of India APJ Abdul Kalam (c) and Ghulam Nabi Azad (r)

“I shifted all the lower courts to the earthquake-hit areas to resolve the problems that had arisen with respect to relief. My judges worked day and night in hostile climactic conditions and that effort was acknowledged nationally and internationally.”

He had also tried introducing practices followed in Delhi to his parent high court. However, the attempts to make changes were usually met with opposition.

“In the Delhi High Court, judges have a modern outlook, which is contrary to the mentality of most judges, who still live in the Stone Age. Here [in Delhi], If you bring in a new technology, all judges will support it. In the J&K High Court, I imported digital Display Boards for the benefit of lawyers and the litigant public. Can you believe that the boards were taken down by judges? They said, ‘They are disturbing, remove these from here’.”

He also introduced the roster system in J&K, to the dismay of some judges.

“Some of the judges opposed it, but I carried it on. I fixed two days for final hearing, which the judges weren’t used to at all. My dream was to make it as good as the Delhi High Court. But my tenure was short, so I didn’t fully succeed in doing that.”

There is a palpable sense of disappointment about Justice Khan. And the same is understandable; had things gone his way, he could have possibly been elevated to the Supreme Court, had it not been for the multiple transfers for reasons unknown.

On the topic of the Supreme Court, he has some strong views as regards its functioning.

“The Supreme Court today spends most of its time dismissing SLPs. This is nothing but a duplication of the exercise of the high courts’ jurisdiction. The real disputes – including Constitutional matters and criminal appeals – go unattended. We don’t have Constitution Benches for months together because the judges are engaged in this SLP business.

Trust a High Court. Judges of the Supreme Court would have once been high court judges. So, in my opinion, the jurisdiction under Article 136 should be scrapped, and the Supreme Court should function as a Constitutional Court.

PSC

“In my opinion, the jurisdiction under Article 136 should be scrapped, and the Supreme Court should function as a Constitutional Court.”

In the good old days, the High Court would certify that a matter was fit for appeal before the Supreme Court. Do you seen any certificate coming to the Supreme Court? Instead what do we have? 60 SLPs per day, in one court. 99% of those SLPs are dismissed, and you have paperbooks running into thousands of pages.”

As for his take on the higher judiciary in general, he is a vocal critic of the recent happenings at the Supreme Court. His expresses his views on the topic in part 1 of the interview.

Today, Khan J functions as the Chairman of J&K’s State Accountability Commission (SAC), a body dedicated to ensuring transparency and good governance in the state. Created on the lines of the Lokpal, Justice Khan believes that on paper, it addressed the deficiencies of the latter setup. However, things worked quite differently in practice.

“This Act was totally made hollow. In 2011, a wholesale amendment was carried out. The jurisdiction over the bureaucrats was taken away and limited to the political class – the Chief Minister, MLAs etc. In all suspected areas of where corruption took place, like municipalities and other local bodies, the SAC had no jurisdiction.  As a result, no complaint has come to the Commission against any political person.”

Despite describing his experience thus far as “not a very happy one” and not having any results to attest to its efficacy, he still believes that the SAC is an important body.

“Still, the fact that there is a body like this causes fear in the political class.”

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