LAW RESOURCE INDIA

‘Parliament is the ultimate judge of what law should be, SC the ultimate judge of what law means. That has to be maintained’

Posted in JUDICIAL ACTIVISM, JUDICIARY, JUSTICE, LEGAL LUMINARIES, SUPREME COURT by NNLRJ INDIA on July 19, 2011

JUSTICE MUKUL MUDGAL IN WALK THE TALK WITH SHEKHAR GUPTA IN THE INDIAN EXPRESS

My guest today is one of our great judges and if I may say so, in today’s context, the greatest friend of Indian sports ever in our judiciary, Justice Mukul Mudgal. Now, of course, you have the tough task of finding out what exactly happened with the sportswomen we love so much.

I have always loved sports. It started in school. I was in the water polo team of Modern School, Barakhamba Road, and in college and Delhi University. I was a keen follower of cricket. I have watched Test matches in Delhi in the lowest stands for Rs 2 a day. And watched an entire West Indies match standing up because by the time I reached, the stands were completely full.

Many people of this generation don’t know that in 1989, almost 22 years ago, you stood for the eight cricketers who were banned.

That is true. I read about this unfair ban being imposed on the cricketers. I filed a writ petition challenging the ban. Fortunately, the Chief Justice of India then was very pro-cricket, he was a member of the Karnataka Cricket Association, Justice Venkataramaiah. He took it upon himself.

You also fought for Chandrashekhar, the table tennis player.

It was a case of mishandling by a well-known hospital chain who did a small ligament operation on him. His brain was damaged because of anaesthesia. I must tell you that in the cricketers’ case, I was the advocate on record, the senior counsel were Mr Soli Sorabjee and Mr K N Bhat. None of them charged any money. Similarly in the case of Chandrashekhar, no money was charged…

So lawyers also have a heart when it comes to sports.

They have a heart otherwise too, but it doesn’t always show.

You were always a lawyer and a judge who had a heart when it came to sports.

I am very proud of it. Sports is a wonderful thing, a character builder and I think a good sportsman makes a good human being.

You also felt proud when these girls got these gold medals at the Commonwealth Games and then at Asian Games…

I was proud as an Indian that our girls could attain so much. Remember, a girl has to fight twice as much as a boy. There are many discriminations, there are many family hurdles and I felt very proud.

And then the disappointment?

Disappointment at the doping incident, yes. I am looking into it now, whether it was inadvertent or whether it was deliberate…

Is there a possibility still that it could have been inadvertent?

Possibility cannot be ruled out. In fact, they have asserted so. Whether it is a sham or there is a cover-up, we will have to go into it.

Do you think it will make their medals at the Commonwealth Games and Asian Games suspect?

It could. I am not sure because I believe that till April, they had tested clean in all tests.

And at these tournaments too, they must have been tested?

Yes, they were tested. These are high-level athletes who are on the WADA list. They can be tested any time. So they have been tested regularly by neutral bodies and they have been found clean till April.

But does it wrench your heart to do this?

It does pain me. Supposing I find them guilty—I am not there to find them guilty, I am only holding an inquiry, that NADA will do—but if they are guilty of a deliberate violation, the minimum ban is two years.

Two years can pretty much finish their skill.

They are all in their prime and are raring to go to London for the Olympics. I don’t know what will be the fate of that.

Could something else have been done by the associations or by the Sports Authority of India to make sure that this did not happen, one way or the other?

The common grouse is that there aren’t enough supplements. And if that grouse is correct, I don’t think that top athletes should buy supplements from the market. They should get them from the Sports Authority. That is one of the longer-term measures I am looking at…whether athletes are compelled to buy from the market. And the Sports Authority of India should get them routinely checked, in any case.

You must be approaching this with greater enthusiasm than you have approached any case so far.

I would like to devote all my energies to it, as much as I can. I think it is my public duty as a former judge and as a current sports lover to do it and do it fairly.

You have been a crusader, not just for Indian sports, but many other things. We remember you better as a judge, the many orders you have given—khap panchayat case in Punjab and Haryana High Court, Hisar riots, orders you have given in the Delhi High Court, several of them…People also forget the Vishakha case, the Sunil Batra case. In the Vishakha case, the Supreme Court set the law for sexual harassment at work place.

That was a very interesting case. There I was appearing for the government and on the other side was Meenakshi Arora, who was fighting for the woman’s cause. We sat down together, drafted out guidelines. And the government’s role has to be lauded in that they fully agreed to all the guidelines. So I think in that case, it was a very positive role played by the government.

That is one of the stellar examples of the Supreme Court setting new legal framework and of the executive and the judiciary working together.

Yes, very much. There is nothing better than when they both work together and things are positive and lasting as you can see. The Vishakha judgment has had this effect. I am not saying sexual harassment is totally gone, but it has reduced drastically.

Tell us about the Sunil Batra case that started the whole tradition of PILs. These days people say this country is run by PILs.

This Sunil Batra was convicted in a bank van robbery case on Minto Road. It was in the early 80s and when he was convicted, he was put in solitary confinement. He wrote a post card to Justice Krishna Iyer saying that this incarceration in solitary confinement is cruel and inhuman and unconstitutional…even if I am on death row. The Supreme Court appointed eminent lawyer Y S Chitale and me as amicus curiae. We visited the jail, saw the conditions and then prepared a proper formal writ petition and filed it. That led to a constitution bench judgment and Sunil Batra won. It was a landmark judgment that lay down the rights of the prisoner and that has gone a long way.

And then this whole tradition of PILs started…

Yes, it started because newspapers also used to highlight this. But soon the system also started getting abused. People used this as a form of shopping, to choose a judge. That led to formulation of rules by the Supreme Court.

You used the expression ‘shopping’, but many of us heard this only when Kapil Sibal recently accused somebody of forum shopping and we were wondering what that was.

‘Forum shopping’ is when you choose your judge. That judge may not be hearing that subject matter but would try to manoeuver things in such a manner. What a chief justice does is he delegates every subject to a particular judge. So all cases on that subject go to that bench to ensure there is objectivity.

One more disclosure. Many of us philistines learned to learned to appreciate classical music in your home over these decades.

Well, that is the accident of birth. I was born in a family of renowned musicians. Everybody in my family is a musician, except me. Even my son is a rock singer.

So as somebody who wrote the first notes in this PIL saga, do you sometimes think it has gone too far or it is going too far?

Well, in certain cases, yes. I think what happens is that the separation of powers is not a rigid line. PILs are generally and largely because of the fact that the executive is not performing its function. The court may step in, the court may give guidelines, the court may cajole, the court may on occasion coerce the executive also…

The court may at times oversee as in the 2G case. If the court had not been overseeing it, the case would not have moved.

Yes, it is called Continuing Mandamus style, which means that the case keeps on getting listed before the court. Cleansing of Yamuna, cleansing of Ganga, these cases are never going to end, they may come up again, the court may give directions. But these are welcome things. I think these ought to be continued because environment cleansing is such a mammoth task, it is not going to get over very soon.

And even if this ends, new challenges will come.

New challenges will come. PIL will evolve further. And it also takes the shape of the chief justice of the day, he has a large role to play, he sets the character of the court, he sets the ethos of the court and depending on who the chief justice is, you will see the shift in PILs.

Where do you see it being overdone now?

Well, I would like to give an example of the CNG case. I was there myself as a counsel, assisting the court as an amicus. The court said CNG is a must. In my view, the court should have said the standards of pollution are thus set up in the Air Pollution Act and any medium of fuel which meets that pollution level is fine. The court should not determine what that fuel is, the court should determine what the level of pollution prescribed in the Act by Parliament is. And unless there is something glaring, Parliament is the ultimate judge of what the law should be. The Supreme Court is the ultimate judge of what the law means. And that has to be maintained.

So you think enforcing a fuel was overreach?

I’ll give you another example. Today three diesel cars pollute as much as a diesel bus and every year, an equivalent of the current fleet of 10,000 buses, that is, 30,000 diesel cars join Delhi roads and therefore the insistence on CNG is meaningless, it has become a tokenism…You have to stop pollution, you do not have to stop diesel buses or petrol buses and you do not have to stop buses per se, which are mass rapid transport.

In the current debate, we have had a couple of strong remarks and judgments from the Supreme Court. We have just had, as we speak, a red-hot judgment, saying that only the rich have the golden key to the doors of justice and so, the court has to weigh in on the side of the poor. Should we agree with it?

I won’t say only the rich have the key, but the poor certainly have a huge disadvantage when it comes to facing the odds in the court. That is where a strong judge comes into being. A strong judge and a good judge would even the scales of justice by appointing a good lawyer. Believe me, at least in the Supreme Court where I practised, good lawyers never refuse the brief of a poor man if the court asks. The best work in the Supreme Court has come because of the amicus curiae who have done the work totally free, who do not charge any expenses.

So how do you look at the tension that has arisen today? The executive is saying we should have a stronger Judicial Accountability Bill, the Prime Minister has spoken, Kapil Sibal has spoken, everybody is speaking. There is tension now. Justice Verma has said judicial activism should be used like a surgeon’s scalpel, not as Rampuri knives.

I think the truth is somewhere in between. Without judicial intervention, who would have looked at bonded labourers, construction workers? That is where PILs have benefited a huge amount of people.

But is what you see today healthy or has it gone a bit overboard?

I don’t think it is unhealthy. The tension between the executive and the judiciary is the hallmark of a good democracy. It is a very healthy thing. It should not become hostility. The executive has a right to complain of judicial overreach and the judiciary has a right of complaining about over-dependence on the executive. I would like to give you an example of financial autonomy. When you can trust the Chief Justice of India with the entire judicial system or the Chief Justice of a High Court with the entire judicial system, then what is the difficulty in giving him financial autonomy? You give a particular amount of grant and then it is up to him to regulate…Today every time something is to be bought, sanction is to be sought and this affects judicial autonomy.

You have seen the picture from all sides—as a lawyer, a judge and, if I may say so, as an activist, as a sports enthusiast. What are the two or three things you would want done that would one, make the judiciary a lot more effective, take away all its flaws; and second, to prevent this tension from going too far?

When you think about the judiciary and what ails it, the primary allegation made against the judiciary is arrears, that a case takes a long time. I would like you to consider three or four things. One, the judge strength of India is one of the lowest in the world per population, it is lower than in some African countries. And second, the workload of a judge. An average high court judge takes up 50 matters a day when a judge from western European countries or in the US is handling one case a day.

So you want many more judges?

Many more judges, better infrastructure, financial autonomy. I am not saying we don’t have laggards, we have. In fact, these are the ones who pull us down. The other thing as far as judicial independence is concerned, I would like to say that I would strongly favour the proposal of making the age of the retirement of the high court and Supreme Court judges same. Also, seniority should not be the sole criteria, the merit of the judge, the judgments delivered by him, the quality of the judgment should be also looked at.

But you still think the collegium system is still the best?

It has had aberrations…

Can I say you are a victim of some?

No, I wouldn’t say that. I think the collegium system, if it is manned by proper judges, is a good system. But appointments should be time-bound. From the time the name is proposed till the time the appointment is made should not be more than about three months. The minute a name goes, 1,000 complaints start coming and you start investigating all of them. Most of them, if not all, are frivolous.

One reason you sound so cool about your so-called retirement is because you have now got something that is really close to your heart, solving a problem for Indian sports.

Oh, yes. I thoroughly enjoy that. I am also advising on public health issues, I am with cultural trusts, cultural education institutes and I will always be available to them free of charge.

And you will now be Mr Sherlock Holmes in Patiala.

Well, I don’t have a Watson, that is all. It is an intriguing subject.

All I can say is that your face really lights up when we talk sports.

I love sports.

Mukul, keep that interest and you know, whatever may have got these girls into this mess, they couldn’t have found a better judge, lawyer or prosecutor.

Very kind of you to say so.

One Response

Subscribe to comments with RSS.

  1. ivooscarfaleiro said, on July 19, 2011 at 15:07

    Why the Parliament should be the ultimate judge of what law should be, SC the ultimate judge of what law means? … is my humble question to all my Indian brother and sisters. Whatever LAWS these thieves have made is for their own selfish benefits to remain in POWER by hook or by crook. – Ivo Oscar Faleiro. Ex-General Secretary, South Goa District Congress (I) Committee, Flat No. G-2, Queen’s Garden, Behind Old Kare Law College, Rua Calcada De Nossa Senhora De Piedade, Margao – Goa. INDIA. Ph (Res): 91-832-2735790. M: 09420783557 / 09226779988.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: