We owe the judges the courtesy of at least reading each judgment – Menaka Guruswamy on the #NJAC verdict

Bar & Bench’s Pallavi Saluja and Murali Krishnan speak with Menaka Guruswamy on the Constitution Bench’s decision striking down the 99th Constitutional Amendment and the NJAC Act..In this free wheeling chat, Guruswamy talks about reactions to the judgment in mainstream media, political fears of the judiciary, the way forward, and much more..Bar & Bench: On reactions to the judgment in the media?.Menaka Guruswamy: Each of the five judges has chosen to write an elaborate, meticulous judgment; this is not your typical Bench, where all the other judges concur with one judge. I was fascinated as to how people were writing pieces the morning after, when the judgment was made available only in the afternoon. How have you read a thousand pages to critique the judgment, irrespective of what your position is?.The problem is that we are seeing this as a polarised issue. There have been ample responses in the press from counsels who argued these cases. At some point, Justice Lokur says in his judgment that he was upset at how vitriolic the arguments were in court. I think we owe the judges the courtesy of at least reading each judgment and appreciating their complexity, which I don’t believe we have been able to do thus far. Something can be well-reasoned even if you may disagree with the outcome..This Bench has enabled the reader to join them in the process of arriving at a conclusion, which is what any good judgment is supposed to do..Bar & Bench: How would you have liked the debate to come out?.Menaka Guruswamy: Whichever side I fall on, I have learnt immensely. Justice Lokur’s judgment talks about the 1958 Law Commission, which was anxious to find that there were a lot of communal and regional elements in the appointment of High Court judges. The point he tries to make is that of the problem with Executive supremacy, which has been an enduring problem since the founding of the Republic, and he has been able to show that narrative. If we have to disagree with him, we have to engage that narrative, and deconstruct it historically. I would love to see pieces of writing doing that. You cannot just say that you disagree, because you are trying to perpetuate your own appointments system..If we have to disagree with him, we have to engage that narrative, and deconstruct it historically. I would love to see pieces of writing doing that..Justice Khehar is being reasonably outspoken for a judge when he refers to L.K Advani’s views on growing intolerance. There is clearly a feeling within certain sections of the judiciary that we live in times which merit different responses. The point is this – either we are all committed to enduring democratic constitutionalism in this country or we are not. We may approach it from different vantage points, but we have to be able to engage each other’s conversations on how best to preserve this. I believe the judgments are trying to do that – Justice Chelameswar is trying to do that just as much as the others..Surely, a complex country like India deserves complex critiques, and I have not seen that so far. Everybody who had written something on it the next morning has just taken the ratio and pontificated on that. I salute people who can read a 1,000 page judgement in an hour or two and then write an op-ed!.Bar & Bench: Do you think the ratio of this judgment is about judicial primacy as a facet of judicial independence?.Menaka Guruswamy: There are judicial commissions in other jurisdictions where there is judicial primacy. I think the judges had an issue with the way this particular system that was envisaged was crafted. The question is whether there was judicial primacy in this specific entity. Objectively, there wasn’t..Bar & Bench: What system do you favour?.Menaka Guruswamy: I favour an appointments process that is well thought of. We have serious challenges, one of them being the vacancies in the high courts. If you look at the Allahabad High Court, there are 40 percent vacancies. It means one of two things – either people don’t want to become judges anymore, or we are not able to appoint them quickly enough. I suspect it is a mixture of both. Any appointment process has to address these issues..On November 3, when this bench has a discussion in court on how to improve the collegium system, that conversation should reflect these realities..My senior Ashok Desai used to say that at the founding of India, even being a Federal Court judge was thought to be a huge honour. How do we get young lawyers to say ‘I want to be a High Court judge’? From where and how do we get the best of the lot to come to the Bench? These are concerns that have been raised since the Constituent Assembly debates. These questions are rarely discussed publicly..How do we get young lawyers to say ‘I want to be a High Court judge’? From where and how do we get the best of the lot to come to the Bench?.Are there ways of making the collegium system more transparent? Are there ways of making it more publicly accessible? I think November 3 is going to be an important step towards that conversation, and it is unprecedented that the apex court has invited suggestions..Bar & Bench: What do you have to say about Justice Kurian Joseph’s opinion that judges should give reasons for recusal?.Menaka Guruswamy: I think it is interesting, because typically, judges don’t give reasons for recusal. This is the first time I have seen a Constitution Bench discussing why you must recuse yourself and why must you not. Justice Lokur, for instance, has a separate order just on this point. I recently read that one-third of the judges of the Punjab & Haryana High Court recuse themselves; imagine what it would be like if it happens in the Supreme Court!.Bar & Bench: What is it that stands out in the judgment?.Menaka Guruswamy: I think this bench of five through their five elaborate judgments have displayed tremendous effort. People were complaining that it took them three months to deliver it. However, I was thinking differently. On Mondays and Fridays, each of these judges have to hear 70 cases. From Tuesday to Thursday, they are deciding on final arguments. Just look at that burden this Bench has undertaken. They have also each approached it differently – Justice Lokur looks at it historically, Justice Khehar does it differently..Bar & Bench: Does the judgment reflect the political fears of the judiciary?.Menaka Guruswamy: Justice Khehar outlines his political fears very clearly, and that gives you some insight into the fears of the judiciary, that we perhaps live in difficult political times. I think everyone, on both sides of debate, agree that we live in times of trouble, in terms of pluralism and diversity. Given that this is the reality, should we be worried about the appointment of judges? We certainly should be..While critiquing this judgment, it has to be asked as to what it has done in the context of maintaining the Constitutional democracy of India. If a political scientist were to critique this judgment, he would evaluate it in the context of what does further solidification of power in this Executive mean for democratic Constitutionalism in India..Bar & Bench: Do you think that means judges have to be more circumspect, given the political scenario?.Menaka Guruswamy: This is the most powerful apex court in the world; no other court engages so many questions across the spectrum. When we have given them the power to engage on everything from method of food distribution to Representation of People’s Act challenges or how to clean up Delhi’s air – then why are surprised when these things are mentioned in judgments?.Look at the unprecedented range of cases that litigants take to the Supreme Court. No other apex court is expected to entertain such a range and quantum of cases..Look at the unprecedented range of cases that litigants take to the Supreme Court. No other apex court is expected to entertain such a range and quantum of cases..Bar & Bench: Be it the NJAC or the Collegium, don’t you think it is the lack of clear criteria which is affecting the selection of judges?.Menaka Guruswamy: Yes. I think Mr. Nariman and Justice Lokur had that conversation [during the hearing]. And there is a Memorandum of Procedure for Appointment for the High Court and Supreme Court judges. But I think that is more of a logistical procedure. But if criteria/ qualifications for appointments as judges is laid down, it will go a long way in ensuring that appointments are more transparent and attract better quality applicants..Bar & Bench: What do you think is the way forward? Is the government going to do something?.Menaka Guruswamy: The hearings on November 3rd in the court could signify the start of a conversation towards a more transparent and better defined appointment process – that spells out qualifications and disqualifications, that facilitates knowledge about those being considered, and that articulates and enables roles for the judiciary and executive in this process.