“An independent judiciary depends on how independent the individual is”, Senior Advocate K Pratap ReddyOctober 18 2017
K Pratap Reddy is a veteran Senior Advocate at the High Court of Judicature at Hyderabad. Through his long career, Reddy has represented six Chief Ministers of Andhra Pradesh, including PV Narsimha Rao. The 87-year-old, with close to six decades of experience at the Bar, had earlier taken us through his career in an interview published in 2012.
This time around, he speaks on more recent issues, ranging from the Collegium, to privacy, to his close encounter with contempt.
The opacity of the Collegium system has been called into question, with the transfer and subsequent resignation of Justice Jayant Patel. Is there a lasting solution in your mind which can keep political interference out?
The concept of an independent judiciary is flawed. It is only an individual who can be independent and fearless. While Article 124 of the Constitution vests powers in the Supreme Court, that power is limited to recommending. This has to be read with the power of the President under Article 74. The President acts on the aid and advice of the Council of Ministers, and he is the one that issues the warrant appointing a judge. Therefore, the political element is inevitable.
Otherwise, the Supreme Court does not have the paraphernalia at its disposal to find out everything about a potential appointment. They may know about an individual’s judicial character based on his or her performance as a lawyer, or based on judgments passed in the subordinate judiciary. This process must also include consultation with the High Court.
It is the Executive, however, that has the wherewithal at its disposal to investigate any character flaws an individual may have, and this is of paramount importance. If someone with a flawed personal character – irrespective of his judicial character – enters the judiciary, that is inviting trouble, because such a person will be susceptible to external influences.
Which is why Justice YV Chandrachud and his colleagues treaded cautiously in SP Gupta v. Union of India and preferred a cautious approach, saying that the Supreme Court will recommend, but the final decision is left to the President of India. When it came to The Supreme Court Advocates-on-Record Association v Union of India, they transformed the word “recommendation” to “mandate”, and that was a mistake.
The government tried to take remedial steps by introducing the National Judicial Appointments Commission (NJAC) more than two decades later through the 99th amendment. One of the grounds on which this was not allowed by the Supreme Court was that it impacts the independence of the judiciary. This is not correct.
In my opinion, the law was a very good one. The Commission was to include the Prime Minister and the Law Minster no doubt, but a majority of the members would come from either the judiciary or those nominated by the judiciary and was also to include the leader of Opposition, who would act as a check on the executive representation. It gave the executive hardly any space to influence the independent nature of the judiciary.
At the cost of repetition, I say that an independent judiciary depends on how independent the individual is. A prime example is Justice HR Khanna, who stood up for the rule of law during the dictatorship of Indira Gandhi and delivered the sole dissenting judgment in ADM Jabalpur v Shiv Kant Shukla at a time when everyone else caved in.
As things stand today there is no organ of the State that can interfere with judicial independence. No minister can say “you pass a judgment this way”.
Is there a solution? One that brings about lasting transparency?
I think it is time for us to go the American way. Any name that comes up for discussion must be made public and that individual must be subject to scrutiny by the press and the public at large. If anyone from the public has information about a potential appointee’s defects, personal or otherwise, they must be free to bring it into the public domain and debate it.
The concept of bringing in Chief Justices from other states is also wrong. It is doing a lot of damage. The Chief Justice must necessarily be from the same Court. Even before being elevated to the Bench, such a person will have the opportunity to observe fellow members at the Bar and have a more nuanced understanding than any outsider.
Also, 90 percent of judges, before retirement are going to the executive and seeking appointments to some commission or the other, post retirement. The ban on re-entering practice must be lifted. Judges must also be paid the salary at which they retire for life, but there must be a ban on re-appointments.
The recent decision of the Supreme Court to upload decisions of the Collegium on the website is also a welcome step.
The Higher judiciary has been spending considerable time on issues such as the administration of cricket in India, and other matters. What are your thoughts?
They have said “don’t conduct a cricket match in Bombay”. If there is a water shortage, it is for the executive to look after. Can the Bombay High Court supply water? This is excessive interference. First of all how will you implement this? Do you have any power to implement?
Another matter that comes to mind is the case of Rohingya refugees; it should be a political decision. Say you order that they be given leave to remain, and they turn into a security threat. How are you going to solve it? Leave it to the executive. The security of the state is with the executive not with the judiciary.
Do you think the quality of legal education has improved with National Law Schools and private law schools of repute springing up across the country? And if so, is it reflecting in the quality at the Bar?
It is undoubtedly true that National Law Schools, instituted first in Bangalore, then Calcutta, and several other cities around the country, have certainly improved the quality of legal education, and that is also reflecting at the Bar.
However, commercial institutions are attracting most of their graduates because of an immediate income. In our days, we used to hear a saying, ‘In the beginning its all work no money’. The second stage of a lawyer’s career was ‘some work and some money’, and third stage would be ‘all money, no work’.
So, the important thing is to stay at the Bar, improve your quality, and most importantly integrity. Win the heart of the client even if you lose the case. If you can satisfy the client that you did your best irrespective of the result, then a day will certainly come where one will be successful in the profession.
Legal education in the fifties and sixties was the most neglected area of professional education. Only those who had a personal interest in improving their skills and devoted themselves to the profession, progressed. Of course there were stalwarts such as MC Setlvad, Justice MC Chagla and Justice Syed Mahmood even at that time, but people with such devotion were rare.
Now, after the advent of the National Law Schools, there is a vast improvement in the quality of education, but most of them never end up involved in practice. If more such young people persist at the Bar, not only will the Bar improve, but also the judiciary in the long term.
There is a growing perception that personal liberties and privacy are increasingly under threat, be it the beef ban or linking Aadhaar to everything. What are your views on the subject?
The concept of privacy, which is the basis for the judgment delivered by 9 judges of the Supreme Court, is no doubt a good concept. It expands the scope of life and liberty as envisaged under Article 21 of the Constitution. However, making privacy itself an independent fundamental right is not correct. It is not written in the Constitution.
The comprehensive list of liberties under Article 19 are all subject to reasonable restrictions, and this is absolutely necessary. For instance, free speech is subject to sedition, defamation, and contempt of court.
Can you share a funny anecdote or incident during your practice that still brings a smile to your face?
This incident dates back to 1969-70, during the Telangana agitation. One morning, Justice Madhava Rao, who hadn’t been elevated by then, Haridatta Reddy, Anand Reddy and myself were sitting in Ananda Reddy’s house in Basheer Bagh, preparing to go to court. There were violent demonstrations outside and we were getting constant updates on the situation from the police control room. After some time, we were told the situation was under control and that we could leave.
We left in my car and mid way-through the journey, close to Mozamjahi Market, an explosive was hurled at my car. At this point Madhava Rao said “Let us return, if we come out alive we can return to our practices tomorrow. The worst that will happen if we turn back now is we will lose a few cases.”
After I returned home, a Civil Revision Petition I was to appear in came up, and it was dismissed as I hadn’t appeared. I filed a personal affidavit explaining why I could not attend, to which the judge said,
‘You are lying’.
I asked him on what basis he was saying that. He replied,
“I am a judge here and I used the same road”.
“You must have come around 9:30 am, I’m talking about 11:30 am, and there were three other advocates travelling with me”.
All of them later filed affidavits in my support. The judge, however, still did not budge and contempt proceedings were initiated against me, and he did not revive my petition either. It was at that point that Justice ND Krishna Rao intervened on my behalf to have the contempt withdrawn.
In all your years at the Bar, who was your favourite judge to go up against?
Everything said and done, Chief Justice Koka Subba Rao was the best. The all time best!
Out of the many young lawyers you have mentored over your career, is there one you are especially proud of?
I have trained 181 lawyers in my career. Out of these, three have gone on to become judges of the Supreme Court. The best of the lot is retired Supreme Court judge, Justice Sudarshan Reddy.
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