‘If judges show anger unnecessarily, people will feel we are just like ordinary people. We have to show our stature is above that.’
SHEKHAR GUPTA IN INDIAN EXPRESS
In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Chief Justice of India P N Bhagwati expresses regret over his habeas corpus judgment that upheld the right of the Indira Gandhi government to suspend all fundamental rights during the Emergency and explains why he wrote a letter of praise to Mrs Gandhi
My guest this week is one of Indian judiciary’s most important shining lights, Justice P N Bhagwati. It tells you about the creative energy in his mind that even now, when he is about to turn 90 very soon, he is working on two books, including his memoir. The judiciary is in news these days. The government complains about the Supreme Court’s obiter dicta, we also editorially complain about it. It seems somehow that the tension between the executive and the judiciary has become too much.
Well, that can’t be helped. Even in normal times there is bound to be some tension between the judiciary and the executive, particularly because the judiciary is entrusted with the task of enforcing the Constitution and it has got to enforce the fundamental rights of citizens and these fundamental rights sometimes come into conflict with what the government desires to do. But that is a conflict that can be resolved by the judiciary and whatever the judiciary decides as a matter of law and the Constitution should be accepted by the executive. Then there will be no tension.
But do you think that sometimes the executive doesn’t accept it?
Yes, in the last few years there have been occasions when the executive has not accepted decisions of the judiciary.
Sir, two recent judgments. I don’t know if you have followed them. The Salwa Judum judgment and the black money judgment in which the government felt, and many of us also felt, that the bench had exceeded the constitutional limits. In both cases there are appeals now for review.
Appeals are there, the Supreme Court will have to dispose of those appeals according to law. But very often, judges forget, lawyers also forget, that law is not an abstraction. Law is something which has been moulded and developed by the courts, by the judges. Law is ultimately what the judges make it, and therefore the judges must have a social perspective. They must be anxious to see that human rights become meaningful for the large masses of people in the country. They should not feel worried about the executive or I would say even about what people say. Their function should only be to enforce the basic human rights that are embodied in our Constitution.
In your own career as a judge, did you feel pressure from the executive and how did you deal with it?
No, I never felt any pressure from the executive. I delivered several judgments, many of them against the government, but not once did I feel that the executive felt offended. It’s possible that they didn’t like my judgments but they never showed any anger.
You were a judge when the executive was much powerful than it is now. Mrs Gandhi’s executive was very powerful.
But the judiciary of my time was equally powerful. Let me tell you that there was never a single occasion when the judiciary and my leadership felt thwarted by the executive or by Mrs Gandhi.
But look at the praise that you wrote for Mrs Gandhi. Most judges today would be embarrassed to write such a flowery prose about a prime minister.
I wrote about her because she fully deserved what I said. She had given this country a united India. Let us not forget the fact.
But somebody who rose to become Chief Justice of India, was it correct for you to write praise for her? It didn’t compromise you?
Publicly, no. But the CJI writing to the PM or the PM writing to the CJI privately was not wrong.
But today it would be out in the RTI and published.
It should not be published. It does a lot of harm.
So are you then saying that these correspondences should not be exposed to RTI?
It should not have been exposed to RTI. Basically what I wrote and what she wrote to me, I don’t remember now, was in the strictest confidence.
But does it pass the test of propriety for the Chief Justice of India to write praise in such flowery prose to the PM and expect it to be kept confidential?
No. I entirely agree with you it was wrong on my part.
You agree with that. But you got carried away? Why did you write that?
I was carried away by the result that was achieved.
…in the election?
Because I always believed that the welfare of the people was the ultimate goal, both of the judiciary and the executive, and anything which tends to further that goal or improve the condition of the people is something that deserves praise.
You did not write in anticipation of any benefits or rewards?
In my life, I have never anticipated anything. But I always believed that my duty is to serve my people. I was in the freedom struggle. I went to jail in 1942. I have always fought for the rights of the people and you look at my judgments.
You started the PILs. You used the postcard and treated it as PIL. Tell us the story of the postcard.
When I became a judge in the Supreme Court, I went round the country and when I visited various villages and towns, people gathered around me because they were interested in seeing a Supreme Court judge. I used to talk to them and I realised for the first time how important a judge’s function was. When people came, many of them were in tatters, many of them had sunken bellies. I realised that my justice was not reaching them. My justice, which I was administering, was meant for the few who could afford lawyers, litigation, court fee. That brought a change in my heart, my attitude. And then I started getting postcards, I started treating them as writ petitions. And ultimately I developed the whole theory of public interest litigations.
That’s your great positive contribution, but let me take you back to your regret and to the letter to Mrs Gandhi. When did you first feel that it was wrong to have written it?
Soon thereafter, I would say. I realised that I should not have treated that letter the way I did. Perhaps I exceeded my jurisdiction.
In the praise that you wrote for her?
No, not that the praise was ill informed but as a judge, as the chief justice, I shouldn’t have written it.
If you had written this, then you had wished it had not become public?
Definitely. It was not meant to be public.
What harm does it do if it becomes public, as it became public?
Well, perhaps to an extent people might feel that I’m pro-government. But very soon the impression that I am pro-government was dispelled.
But apart from that letter to Mrs Gandhi, one thing that rankles is your habeas corpus judgment, the ADM Jabalpur case, when you ruled with the majority of the judges to say the government could take away the right to life of a citizen.
Still looking back, legally we were right, the majority was right. But if I were sitting alone and I would have an opportunity to say it again, I would have taken a different view though that different view would not have been consistent with the words of the Constitution.
As you said earlier, law is not an abstraction. And law is what the judges make it out to be. Did you, as a judge, fail to make the right interpretation, or the right use of that law?
I’ve always admitted that. As a bold judge, as an imaginative judge, as a judge working for the people, I should not have taken that view.
Many of your critics say you cannot just express regret because that judgment did or could have done damage to the liberty of Indian citizens.
But I don’t see how could it have done damage because I think the amendment was made and in fact two years later or so, a similar case came before me and I took a different view. I said in the judgment that the view I had taken was wrong and I changed my view.
One judge disagreed and that was Justice H R Khanna. At that point did you think he was wrong?
At that point, perhaps I must have thought so.
Did you have any conversation with him on this?
No, he didn’t discuss with me. Soon after, he resigned because he was superseded.
That is the whole point. It becomes obvious to join the dots. All the judges who favoured the judgment, the judgment that Mrs Gandhi wanted, rose to become chief justices. The only one who did not was Justice Khanna.
But I became chief justice much, much later.
But the fact is that everyone on that bench, except Justice Khanna, rose to be CJI.
That’s because of seniority. Purely because of seniority. And Khanna should not have been superseded.
But Mrs Gandhi superseded him.
It was wrong on the part of Mrs Gandhi not to appoint Justice Khanna as CJI according to seniority.
What would you have told Justice Khanna if you had met him now?
I would have said it was very brave of you to give the dissenting judgment.
The ’70s saw the habeas corpus judgment and then you had the Kesavananda Bharati judgment that protected our freedom forever. It was the most important five years, I would say, in the evolution of India’s constitutional history. Do you think the period we are seeing now is a period comparable to that? There is the Jan Lokpal movement, there is a demand for a Judicial Accountability Bill. You were a party to setting up the collegium system and now the executive and Parliament are both going after it saying the system is not right. Judges are giving judgments that are setting up monitoring committees on everything.
If you are talking about appointment of judges, I have publicly said that appointment of judges should not be left entirely in the hands of the executive, nor should be left entirely in the hands of the CJI.
…which is the case now.
Now it is a collegium.
Now only the judiciary does it.
Collegium is alright but collegium should be run with some principles to guide it. The old system under which I worked was much better. The CJI made a recommendation after consulting some of the senior judges. Then the government, the law minister would discuss the matter with the CJI, and then we would make the appointment. Look at the earlier appointments, most of them were very good.
But right now, the problem is that there are so many vacancies in the courts. Allahabad High Court has 100 vacancies.
No vacancy in the High Court or the Supreme Court should be allowed to remain unfilled for a long time. Judges have assumed to themselves the power to make appointments, which is a wrong thing. In my opinion, the Constitution has been wrongly interpreted.
So it can’t just remain a fully in-house job?
No, it can’t. If you make the first five judges decide, then sometimes it is possible—I don’t want to make any allegations—that there may be give-and-take among the judges. You have my man, I will have your man. Therefore, I have always maintained and publicly said that appointments should be in the hands of CJI and the law minister.
Do you think the judiciary is under a bit of siege? One, it has resisted reform, it took such a public outcry for them to even declare their assets, RTI and now appointments. Then they are delving into areas of governance, setting up special investigating teams and monitoring them, asking the director of RAW to report to them on black money.
One feels sad that judiciary should come to this pass.
Why? If you could elaborate.
During my time, the judiciary enjoyed the highest respect.
Do you think that respect is threatened right now?
That respect has slightly gone down. There are a few judges who still enjoy that respect, I am told. But I can’t say about all judges today.
Why the judiciary is under pressure is because the Lokpal people are saying bring the judges under Lokpal, government is saying there should be a Judicial Accountability Bill.
I’m against bringing judges under the Lokpal because public pressure will mount unnecessarily. It will affect the independence of the judges. But judges should have their own separate body.
With some involvement of the executive or no involvement of the executive?
No involvement of the executive. Why don’t we have a retired chief justice of India, a sitting chief justice, one or two senior sitting judges, attorney general and one leading member of the Bar?
Did you ever discuss this with your very famous contemporary Shanti Bhushan?
I’ve met him occasionally, but have not discussed these issues with him. What is his view?
He wants the judiciary to be brought under the Lokpal.
No, it is dangerous to have the judiciary under the Lokpal.
Because the Lokpal ultimately is a person who is moved by public sentiment. I don’t want that. Let there be a separate Lokpal, if you like, for the judiciary. That is the best thing. I have already made this recommendation of mine in writing.
What is your advice to today’s judges?
Judges should retain their peace of mind because after all they have got to present an image that people will respect. If we show anger unnecessarily then people will feel that we are just like ordinary people. We have to show our stature is above that.
So do you object to obiter dicta?
No, but they should be well placed. Obiter dicta must be called for.
Do you remember any moment from the times of the bench when you used obiter dicta and well?
I must have sometimes, but I can’t recall now after this length of time.
I think one wonderful thing you have done is to keep yourself busy. Your thoughts are always valuable and now you are putting them down in a book. We will all wait for your books to come out.
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