Things change when people who man institutions change - Justice Badar Durrez Ahmed [Part II]

Aditya AK December 2 2018

In the second part of the interview, Justice Badar Durrez Ahmed talks about issues faced by the Judiciary, Triple Talaq, post-retirement jobs, and more.

In view of the Press Conference held by Supreme Court judges and other developments earlier this year, do you think the judiciary is facing a crisis? What needs to change?

I wouldn’t like to comment on what they [the then four senior-most judges of the Supreme Court] did. But the situation is distressing. Look at the number of vacancies. A lot of people are looking to courts for justice. And if you are not providing them the infrastructure, the people will start looking elsewhere. These are the seeds for discord on the streets. The court is like a pressure cooker, where people come to resolve their fights. There are two ways to resolve them – outside on the streets or within a civilised system. If you shut the doors to the latter, there will be anarchy. Unless the situation is solved at the earliest, there will be serious problems.

Supreme Court Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph held a press conference in January this year

One of the ways is to institutionalize Collegium meetings. What I am trying to say is that the meetings should not be left to the discretion of anybody. If there is a vacancy, you must have a Collegium meeting on a particular date. Whether the High Court or the Supreme Court Collegium, they must meet and come up with a name on that date.

The name should be sent before the vacancy arises. We know when everyone is going to retire, unless it is a case of an elevation of a judge to the Supreme Court. Why can’t the name be recommended and approved even before the judge retires? Why should there be an Acting Chief Justice?

I’m being quite radical here, but if a person doesn’t attend two Collegium meetings, then like a Director in a company, he loses his slot. But these are difficult times for which you need radical solutions.

Have you ever witnessed politics playing a part in the transfer and elevation of judges?

Insofar as I am concerned, one blessing I had was that no one interfered with me; I have been Acting Chief Justice twice and Chief Justice once. No government ever interfered or asked for favours from me. Possibly it was because they knew the sort of person I am (laughs). Nobody from the Supreme Court Collegium asked me to send any names for elevation. I don’t know what experience others have had.

Has the Executive always attempted to interfere with the Judiciary’s functioning?

The three compartments – the Executive, the Legislature and the Judiciary – sometimes get the feeling that they are not water-tight. Each one has a grouse against the other, and that is a good thing. If they become too friendly, that means things are not good. There must be some sort of friction. There may be times when the Executive tries to browbeat the Judiciary, which also might get aggressive against the government.

But by and large, if each wing stands firm and does its Constitutional duty, there shouldn’t be any problem. It depends on the people who man these institutions. Things change when people change, that has always been the case.

What is your take on the Triple Talaq ordinance that makes it a criminal offence?

I don’t know how it will ultimately play out in court. I had given a judgment in Masroor Ahmed’s case, which has been by and large accepted by the Supreme Court in Shayara Bano. As per that judgment, I stated that instant Triple Talaq should be replaced by one, revocable Talaq. I decided that after going through Islamic jurisprudence and going through the law as it stands in India. According to me, criminalisation may not serve any purpose. As it stands, it is a nullity.

The problem here is that very few people understand the concept of Talaq. Ignorance is what is feeding into the minds of people.

Would you care to enlighten us on the topic?

There can be many forms of divorce. The first precept of Islamic Law is that marriage is a sacrosanct contract. Secondly, although it is a marriage, it can be broken, unlike the case in Christian Law and Hindu Law initially. There are several modes of dissolving the marriage. One is where the husband asks for Talaq. The second is where the wife asks for it, and the third is where both of them agree to dissolve the marriage mutually. There are several other grounds for dissolving the marriage.

What people don’t understand is that Muslim women can also apply for divorce, as per the [Dissolution of Muslim Marriages] 1939 Act. People think only the man has the right to divorce. That is one fundamental problem.

Now, divorce is of two kinds – one where there is separation, and another where the marriage is closed. If somebody pronounces one Talaq, it is revocable. And during that period of Iddat, you can reconcile and continue as husband and wife. If there is no reconciliation, you are no longer husband and wife. But if after 6-7 months the husband and wife realise that they want to get back together, they can have another marriage. But after the third Talaq, you cannot reconcile or marry each other again. That was the original concept of Triple Talaq.

Triple Talaq

“People think only the man has the right to divorce. That is one fundamental problem.”

As a device, what happened was that certain schools of jurisprudence recognized instant Triple Talaq. That means the whole system as put forth in Islamic jurisprudence has been condensed into one event which becomes irrevocable and final. The whole case before the Supreme Court was vis-à-vis this instantaneous collapsing of three Talaqs into one, and that has been held to be unconstitutional.

There are many schools of jurisprudence that do not recognize this instant form of Talaq. That was the main point of my judgment; that there are several schools of thought. It is logical and reasonable to adopt the most beneficial interpretation and use it as law. That has got legislative backing in the form of the 1939 Act, where Maliki law concepts, which are most beneficial for the women, have been put in the legislation. Therefore, there was no objection.

Do you think that the time has come to impose a Uniform Civil Code for personal laws?

As a concept, it makes sense. But when you consider the fact that India is such a diverse country, where you have different religious and customary laws, those differences are not going to go away. Let us take marriage for example. Even in a Hindu marriage, there are so many diverse ways of getting married. While Hindus use the ‘pheras’ concept, Muslims have Nikah. Can you come to a conclusion some day and say you can only have a civil marriage? I don’t think that day has come yet. It would not be possible to implement the Uniform Civil Code immediately, because it may not be acceptable to various communities.

India is a cauldron where you have so many diverse religions, that to conceive of a Uniform Civil Code – it is a great idea, where everyone is treated equally – but how do you go about implementing it? Particularly when there is so much political friction among different religions, sects, castes, etc. It should come from society itself.

What were some of the most memorable judgments you delivered?

There have been many judgments in which I liked. But unfortunately, sometimes the people don’t like the ones you like! I am very fond of photography, especially wildlife photography. I know what effort has gone into a particular photograph of mine, so I like that more. But when you as a person see all the photos, you don’t see the effort behind them.

The judgment that was the most popular was the one on beggars (Ram Lakhan v. State); it has become part of the course material in law schools. The Masroor Ahmed judgment was very satisfying because I got the opportunity to explain Islamic jurisprudence. I also did a case on NDPS Act, where the question revolved around the percentage of narcotics in seizures. That judgment was accepted by all high courts and even the Supreme Court, but somehow the Legislature changed the legal position through an amendment.

You are related to the great poet Mirza Ghalib, and help run the Ghalib Institute.

Mirza Ghalib’s wife belonged to the Loharu family. There were two brothers – Qasim Jan and Arif Jan – who were nobles in Delhi. My ancestry is directly from Qasim Jan and Ghalib’s wife was from Arif Jan’s line. So that’s how we are related.

Justice Ahmed is related to legendary poet Mirza Ghalib

The Ghalib Institute is more or less a library; we do research, come out with publications, and essentially focus on Ghalib’s poetry and prose, in both Urdu and Persian. We also focus on the literature, art and history of his times – essentially during the decline of the Mughal Empire and the ascendancy of the British. It is a period of transition, so there is a lot of history.

How has retirement been treating you? What is your take on post-retirement jobs?

People keep asking me whether I am going to take up some assignment. I don’t want to take up any assignment at a Tribunal or a Commission etc. Yes, I do some arbitration. It is nothing but a continuation of the same job I was doing, in a very institutionalised and flexible manner. I keep telling my wife and kids, ‘Where is my retirement?; I have had no time off at all!’

I am not too keen on judges taking up post-retirement jobs. I think they should increase the retirement age of judges, equate the retirement ages of High Court and Supreme Court judges, and raise it to 70. That way, you will achieve three things – one, the vacant slots will be kept on hold till you fill them up. Number two, you will cash in on the experience of judges for some more time. And number three, judges will not even look at post-retirement jobs, so there will be greater independence of the judiciary. I think this is the correct way of going about it.

 

Read Part I of the interview here.

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