‘I am very angry with SC saying if Govt tells us to disclose (assets) we will disclose. That’s what Govt wants — it wants to control the judges’
FALI NARIMAN WALK THE TALK INTERVIEW ON NDTV 24X 7 AND INDIAN EXPRESS. THIS WAS TELECAST ON SEPTEMBER 21 2009
Eminent jurist Fali S Nariman feels that though the Bar has no veto, it has every right to caution judges. In this interaction with The Indian Express Editor-in-Chief Shekhar Gupta on NDTV 24×7’s Walk the Talk, Nariman says the time has come to have a judicial ombudsman and unless a judge has the image of the institution in his mind, there’s no point in being an SC judge
Shekhar Gupta: Hello and welcome to Walk the Talk and my guest this week, well, not only the most respected voices in the business of law and justice and delivery of law and justice in India but worldwide and also if I may say, undoubtedly my most famous neighbour, Fali Nariman, welcome to Walk the Talk.
Fali S Nariman: Thank you, thank you.
Shekhar Gupta: We have planned to do this many times and we kept on thinking of the right moment.
Fali S Nariman: That is because we are neighbours.
Shekhar Gupta: That is because we are neighbours. We take each other for granted. But this is as good a moment as any, to look back on so many years.
Fali S Nariman: Oh, yes. Absolutely. That is correct. We have been law since August 1975 and we have never regretted it.
Shekhar Gupta: And you have been in the business of law now for half a century.
Fali S Nariman: Almost 59 years, to be exact.
Shekhar Gupta: So next year is the diamond jubilee..? But you have seen a lot change?
Fali S Nariman: Yes, of course. I think that is perhaps the sin of the old days, that you look back and say, ah! Those days were much better.
Shekhar Gupta: Fali you are not allowed to say old days because I was going to ask you many questions about how you stay ageless, because you are inspiration to all of us who are getting there.
Fali S Nariman: I am old. I am very ancient, I am very ancient.
Shekhar Gupta: You have seen so many turning points in the history of Indian judiciary, ‘75 to the end of emergency being one and now being another. Both sort of historic but in different ways.
Fali S Nariman: You see the emergency was an entirely different situation and perhaps it was in a sense in retrospect, since it lasted fo4r only a year and a half…
Shekhar Gupta: But didn’t look like a short while then?
Fali S Nariman: Didn’t look like a short while then but it was a good thing for us. It was an inoculation, in my opinion, against tyrannical rule. And I don’t think we will ever, at least for the next 50 years, face that same situation where we would have rule without law. That is where the thing breaks down. Even benevolent rule without law, I think, is an anathema.
Shekhar Gupta: When you see inoculation, what you mean is that it sort of released the antibodies in our constitutional and democratic system>
Fali S Nariman: I think we worked best, you know, be it lawyers, judges, just imagine…
Shekhar Gupta: Don’t forget the media…
Fali S Nariman: And the media. But no that is a post emergency phenomenon, I must tell you. You see, it is the lawyers and judges who reacted admirably during the emergency whereas in the normal course there was much to be said against them.
Shekhar Gupta: Because if those two judgments had gone against the right cause, then it was over?
Fali S Nariman: Yes. And just imagine, nine High Courts struck down emergency laws in each state etc and freed all the detainees and it is only the Supreme Court that shut out the lamps of liberty. But that itself was a great clarion call for all of us, and that helped us along. But I think now the steam has gone out. That steam we had, of consideration of liberty…
Shekhar Gupta: In the legal profession?
Fali S Nariman: In the legal profession, in the judiciary. I think people have forgotten all this. They must be reminded, constantly reminded that …
Shekhar Gupta: That is a serious reprimand from Fail Nariman.
Fali S Nariman: Yes, it is. I am afraid so. People don’t remember all this. They don’t even bother about it. And I keep reminding whenever I have the occasion, reminding the judges also about what happened during those dark days. And it is best always, that is why I like these anniversaries when in June your paper, someone else’s, magazine…pick up all this, what happened on 26 th of June and things like that. It is a good revival of something that was wrong and that people must realize was wrong.
Shekhar Gupta: Fali it was that inoculation of the emergency and the judiciary coming in the limelight as the last sort of guardian of liberties and the rule of law, that then led to a lot of reform that empowered the judiciary. Isn’t it?
Fali S Nariman: Absolutely. And a lot of soul-searching when in the judges who didn’t search their souls at all at one point of time, and that made a great difference.
Shekhar Gupta: So all these collegiums, all this autonomy about appointments ultimately came as a result of that?
Fali S Nariman: Only as a result of that.
Shekhar Gupta: The judiciary got empowered by the emergency just as the media got empowered.
Fali S Nariman: Absolutely. I think the media today is fulfilling a tremendous role. Post emergency, it is a very very important role and I don’t care if sometimes someone is maligned, someone says something about nasty about Mr X, Y or Z. that you have to take because, I mean, if you don’t like the heat of the kitchen, as Truman said, then you must get out of it.
Shekhar Gupta: And that applies to the judiciary as well.
Fali S Nariman: That must apply to the judiciary as well.
Shekhar Gupta: Have you got a sense lately that the judiciary has shied away from facing the heat?
Fali S Nariman: Yes and no. But I must tell you that the contempt jurisdiction which we used to exercise, the judiciary used to exercise quite frequently before, is now diluted. I was very sorry to find those Madras advocates on the question of whether the former Chief Justice should have retired and had reached a superannuation age, and that poor man was sent to jail. I don’t like that sort of thing and I think that has set the tone now. They are much more considerate of criticism now than they were before.
Shekhar Gupta: Yes, but when I say shying away from the heat, the heat today is on declaration of assets, the heat today is on the antecedents of certain judges. Is the judiciary engaging or is the judiciary shying away?
Fali S Nariman: it is not engaging, unfortunately. I must tell you that I admire some of our younger judges, judges in the High Court for instance, who have had the courage to say, “No, we must declare our assets”. One of the judges of the Delhi High Court has said so. And, I mean, he could have very well taken the moral high ground that oh, we are superior to everybody, we don’t have to do anything.
Shekhar Gupta: So, he deserves to be saluted?
Fali S Nariman: Absolutely. A large number of judges in this High Court, I find, are extraordinarily good.
Shekhar Gupta: And Karnataka High Court, Punjab High Court…
Fali S Nariman: Even Karnataka High Court, Punjab High Court and the Bombay High Court, I think, all the younger people are extraordinarily good…
Shekhar Gupta: All these people who dared to say something different, who dared to break from the pack on declaration of assets.
Fali S Nariman: Absolutely, and I don’t see why there was that criticism of that particular judge, I forgot his name, of Karnataka, who said…
Shekhar Gupta: Shailendra Kumar.
Fali S Nariman: Shailendra Kumar, yes, who said I will declare my assets. Well, good enough. Doesn’t matter if he wanted to steal the limelight a bit but that was the breaking point, if you ask me, that was when every body said, oh! My God, now we are really breaking down so, lets gather forces and move with the tide. And that was a good thing. Sometimes, out of lla this comes out a lot of good.
Shekhar Gupta: What is with the younger judges, you know, you are a veteran but a very young veteran, do you think there is a revival now? The new crop of judges…
Fali S Nariman: I have great faith in the young people of this country, particularly if you ask me, the younger students…
Shekhar Gupta: Law students, particularly?
Fali S Nariman: Law students. Whenever I go to these colleges and lecture and so on and so forth, I find the response is so magnificent…and I find they know much more than some of us know, lawyers of 10 year, 15 year experience don’t know. When we go we have to be really prepared. And I am told that even in medicine it is the younger doctors, younger people who are extraordinarily good.
Shekhar Gupta: You have talking at these new colleges now…
Fali S Nariman: Yes, I have been talking at these new colleges now. I went to Jhodpur recently and we found in that law faculty the students were extraordinarily receptive, they knew much more than many of us knew and they kept themselves son the ball, use the internet, something I don’t use…
Shekhar Gupta: And you don’t have to. You have got internet in your head.
Fali S Nariman: No, no, I should use it much more but I leave it to secretaries to do that.
Shekhar Gupta: Because Fali, in old days at law faculties were…you could hide once you had finished college for a few more years if you didn’t have anywhere to go and you do a little in campus. But it is tough to get into law colleges.
Fali S Nariman: I must tell you at the Government Law College in Bombay , which is 150 years old, there is a Latin maxim–because all maxims are Latin, there are no Hindi maxims or English maxims—which meant that ‘nothing defile the temple’. I like that, that nothing defile the temple of the law which I think is a very great vision. I don’t decry the present rung of judges but t6he older judges had much more vision of that particular aspect because after all especially in the highest court where you have the power of life and death over people, you have to be seen to be extraordinary in character, in integrity, in competence, everything.
Shekhar Gupta: That is why all these salutations and my lord and wigs and all that…
Fali S Nariman: But I must tell you something. You see, take a gentleman like Mr Venkatachala. H ow do we remember him today? Most people know him, of course, because he is one of our living legends. Because only because, Chief Justice Pathak, when he deliberately went to Karnataka to find out who would be a good choice for the Supreme Court and looked at No 1, No 2, No 3, No 4 and then found from the bar that the best choice would be No 5 who is Justice Venkatchala . That is how he was brought to the Supreme Court and became one of our most distinguished Chief Justices.
Shekhar Gupta: So he was head-hunted?
Fali S Nariman: He was head-hunted. You must head-hunt. In the final court, you must head-hunt. And perhaps that is one of the great things. Infact, when I was at the bar in 74-75, I had gone to Kerala and I can mention names today, I appeared before a man called Justice Irady, who later became a judge of the Supreme Court.
Shekhar Gupta: We know him as the man who headed that tribunal on river waters.
Fali S Nariman: And who never leaves. You are right. But at that time, his demeanour was so good, competence was good, I lost the case but I found him very good so, I came back and told Justice Ontwalia , whom we knew very well here in Delhi, that I was before a particular judge named so and so and do you know what Chief Justice Reddy told him that brother why don’t you go to Kerala this weekend, have a look, find out from the bar–the bar is the best judge of judges. The bar unanimously proclaimed that he was good and he was brought here and for a whole year after that, he kept saying that Nariman brought me to the Supreme Court. It is true. It is absolutely true. And this is what people should do. You have to travel in order to find out good material. You can’t do on paper work, you can’t do it in your room…
Shekhar Gupta: So, you have no anxieties about bar associations running these campaigns against judges.
Fali S Nariman: No, no anxieties. They will be all scotched up if they are not worthwhile, if they are not bona fide…
Shekhar Gupta: Because, you know, the other side would say that at this rate the bar has a veto on who gets appointed as judge.
Fali S Nariman: No bar has no veto, bar has no vote. But the bar has the right to warn, the right to caution as in the present circumstances we have been doing. You must caution, ultimately the decision is theirs but they must also realise that they are only passersby, they are only passengers in this big ship called the Supreme Court. They are not people who are permanently there. The permanent thing is the institution. Unless you have the image of the institution in your mind, there is no point being a judge of the Supreme Court.
Shekhar Gupta: I mean, let me make a sort of make a little disclosure. We haven’t chosen this old monument with any purpose. It is called Chor Minar , just happens to live in our neigbourhood or we seem to live in its neighbourhood.
Fali S Nariman: Quite appropriate to have a lawyer here.
Shekhar Gupta: So, Fali now many judicial appointments run into controversies, many sitting judges run into controversies on issues not of ideology, legal views, views on the constitution, quality of judgments but straightforward issues of personal integrity and professional integrity.
Fali S Nariman: This is one of the very disquietening things of today. In the older day there were problems as you said, not of integrity, never of integrity or hardly ever of integrity but only because you are a landlord judge and you are a tenet judge and things of that sort. Just the proclivity of a judge towards a particular view…
Shekhar Gupta: During the emergency it was said that the judges are pro-rich.
Fali S Nariman: Yes, yes, of course the progressive judges, the so-called progressive judges. That was a very bad time and that was a very bad occasion. I think over all, Mr Kumaramangalam was responsible for that.
Shekhar Gupta: He himself was very ideological.
Fali S Nariman: He was very ideological. He said we must have people who look forward and forward looking, and the moment he said forward looking, everybody steeped up and said, “I am forward looking”. But it all arises because distinction in the age limits of the High Court and the Supreme Court. If they equal it out, if everyone retired at 65, High Court or Supreme Court, you require much persuasion to bring up a Justice Gupta or Justice Nariman from the High Court and say please will you come to the Supreme Court because you are best. Otherwise, it would be, “My lord I am very well qualified, I should come and so on…”
Shekhar Gupta: So, you mean people get compromised just to get five more years?
Fali S Nariman: Just to get five more years. And unfortunately, nowadays people are not like Justice Wanchoo. Whenever some judge went to call on him, send his card in, he would come out and say, yes Mr so and so. And that person would say I am Mr Nariman and shake hands, I am judge of such and such court. Yes, Mr Nariman. Thank you Mr Nariman for coming. Good Day. Finish. No conversation about how isd your court doing or what are the judges doing or who is a nasty fellow and who is not. You make your own assessment. You travel a bit. The trouble with our Supreme Court is, our judges, they don’t travel, they don’t see places except to deliver one or two speeches.
Shekhar Gupta: And what is the reason for it. They are overworked?
Fali S Nariman: They are fantastically overworked, I must tell you that. People must come and see how overworked they are. They have far too much work. So, unless this institution of a collegium is institutionalised, unless you have an office, a registrar, somebody like that to receive complaints, to find out in the zone of consideration, how many people are good, what is their qualification and so on, how will you choose them. Not on paper, not because I tell them or you tell them.
Shekhar Gupta: How do you reduce the workload on them?
Fali S Nariman: Very difficult. Because we entertain everything and I don’t blame them. Today the greatest problem with our courts, High Courts particularly, is the problem of caste. Because if you are such a such caste lawyer before such a such caste judge, you will either lose or win depending upon your caste.
Shekhar Gupta: Does it actually happen?
Fali S Nariman: It happens.
Shekhar Gupta: It is not just a perception.
Fali S Nariman: No. And therefore, in the Supreme Court all that is got rid off for the simple reason that there will be a bench of atleast two, one from one state and another from another state.
Shekhar Gupta: Maybe, it would be very tragic if you start now looking for caste balance in our Supreme Court benches.
Fali S Nariman: Oh! My God, that will be a disaster, no doubt about it. We have to be a little more liberal, we have to look forward…
Shekhar Gupta: But are you saying if we are not careful, we may get there?
Fali S Nariman: We may, we may. It is unfortunate but we may. Infact, you see, I don’t know, nowadays competence is just one thing but integrity is the most important factor. In our days, it used to be assumed that if you are going to be a judge, are you competent. Nobody said anything about your integrity.
Shekhar Gupta: Because integrity was taken for granted.
Fali S Nariman: Integrity was taken for granted. Members of the bar are also responsible for this lack of integrity.
Shekhar Gupta: Why do you say so?
Fali S Nariman: Because we are the people who negotiate in certain courts with certain judges, in High Courts etc, we have known that, there have been case4s about it recently. I mean they negotiate with them and find out how a particular judge is behaving or not behaving. Is he likely the person to accept some favours in return for something and so on? And that is what our bar has to…
Shekhar Gupta: But some of the campaigns in the past, there is committee on judicial accountability, it did look like, you know, an impression was growing that almost no judge can get in sort of unblemished. There were campaigns against two sitting CJI’s.
Fali S Nariman: There were, yes. Sometimes we overdo it. But it is better to overdo it than not to do it at all.
Shekhar Gupta: But do you think that the higher judiciary, the Supreme Court bench, the CJI, they have missed a trick. That they could have embraced this whole idea of declaration of assets more willingly.
Fali S Nariman: They missed it so badly, you are absolutely right. I don’t know, maybe perhaps it is because of too much work that they haven’t given that thought to it. Because of they had given that thought to it, confidence of the public in the higher judiciary is still so high and we can’t have it reduced now for God’s sake otherwise what are we going to renown as it is. People are not bothered about our politicians too much. In fact, it is because they say they suspected politicians that we got all these distinctions about declaring your assets and there were all the brave…..You see, now there is this passion for integrity which has to be so because in all walks of life we are not just bothered with how competent you are a person who is corrupt. It is a change in values; I think perhaps television is responsible for it. Maybe, I am not too sure but perhaps it is. Because, you know, the press was a very sturdy institution, in my opinion, but now it is all these media and there being no FCC like in the United States to control the media at all. I mean we don’t only go for news but gossip and wrong things and insinuation.
Shekhar Gupta: So what you are saying is that, you know, if you now say that the first qualification of a judge should be that he should be honest, then you are lowering the bar.
Fali S Nariman: You are lowering the bar. Man, the first thing should have been that is he worth the handle, is he competent enough to handle cases in the Supreme Court.
Shekhar Gupta: Because integrity is to be taken for granted.
Fali S Nariman: Integrity was always taken for granted.
Shekhar Gupta: When did it change? Was there a turning point?
Fali S Nariman: I don’t know. I think it is after the emergency. Emergency shook the institution like nothing else did. When Keshavan Bharti , you know, the great constitutional case of 13 judges where six judges signed the order and the other seven refused to sign or it was the other way round seven signed the order and six refused to sign. That marked the turning point of the breaking of the court, in my opinion, which was very unfortunate but that is how it was.
Shekhar Gupta: And it has never quite recovered from that.
Fali S Nariman: It has never quite recovered from that.
Shekhar Gupta: But in this particular case, assets declaration, you know, the Chief Justice and the higher judiciary, did they make it look like they were being sort of dragged, kicking and screaming.
Fali S Nariman: Yes. That is unfortunate. It should have come off their own bat and nobody would have said ‘yes, yes, these assets should be disclosed and should also be put on the website etc. But now the horse has bolted from the stable, you can’t go closing doors. Now the whole thing is there.
Shekhar Gupta: When you talked to them, did some of tem regret it that they lost an opportunity?
Fali S Nariman: Some of the judges do.
Shekhar Gupta: Because they gave the political class a handle.
Fali S Nariman: Yes, they said you wanted us to do it. Quite frankly the law minister looked, if I may say so without meaning nay disrespect, a bit foolish when he had to withdraw the bill about protecting judges. All parties across the board said ‘No,no. No exemption for anybody. Let them disclose then we will see how it is to be done’. Infact, I think we have today the need of a judicial ombudsman, a judicial ombudsman, above the Chief Justice. Yes, maybe, above the Chief Justice.
Shekhar Gupta: And how does that work?
Fali S Nariman: A judicial ombudsman to whom complaints could be made in private, never public. That gentleman or lady or group, who ever they are, will look into them. You, of course, have to have people of unimpeachable integrity, competence…
Shekhar Gupta: So, it is a presidium over the collegium.
Fali S Nariman: Yes, a presidium over the collegium. You have to. Look at what is happening today. You have to. Because either the collegium has no time because they are very good people, they are extraordinarily important people but they have no time to consider whether Shekhar Gupta is better than Fali Nariman or Fali Nariman is better than Shekhar Gupta from the High Court. Why do they not have? Because they don’t go and ask the bar there, they don’t go and ask the bench there, they don’t have any methodology. You see, once we decided it has to be done by the judges themselves, that is their recommendation, it should have been institutionalised. That is you must have an office, you must have a letter head saying “In the office of the collegium of the Supreme Court’. It is separate from the Supreme Court with a director, registrar who will gather information, find out…
Shekhar Gupta: And some transparency…
Fali S Nariman: …transparency, data will come in and then on that data you can perhaps discuss, otherwise, what is the use of my saying you should come in and you shouldn’t. one of the best judges in Bombay Justice Pangsia , I can name him, he is retired now, didn’t come to the Supreme Court only because some of the Bombay judges who were there a year in the Supreme Court said no we won’t have him where as Manoj Mukherjee, Judge of the Supreme Court, a very eminent judge told me once that Pangsia is our best judge in the High Court. So, I said go and tell your Chief Justice and he said I have already told him but they didn’t appoint him.
Shekhar Gupta: Because of groupism?
Fali S Nariman: Because of groupism. So, it is not that this is happening for the first time, it has happened before.
Shekhar Gupta: So, this ombudsman is a wonderful idea, it is a fascinating idea. Has it been done elsewhere, overseas?
Fali S Nariman: No, I don’t think so. But a judicial ombudsman is the need of the our, in my opinion, having regard to our state of affairs.
Shekhar Gupta: Elaborate a bit more on how it will work? Does the CJI report to him in some way?
Fali S Nariman: No, he doesn’t do any such thing. Infact, people–because this is a participatory democracy—disgruntled people, people with good intentions, bad intentions will keep prying this gentleman, lady or group with all sorts of complaints. Now it is the job of the office of the ombudsman of the Supreme Court to inquire into the complaints against High Court judges, Supreme Court judges. Keep it to ownself, there is publicity. Then quietly again, consult the Chief Justice, ask him what he feels about it, take his views into account and then move in a particular manner saying that no, we think, that something should be done.
Shekhar Gupta: But then won’t every litigant lawyer who loses a case go to the ombudsman, making it a one more court of appeal.
Fali S Nariman: He may but it is better than to go to the press or media and say this judge is this and this judge is that. I am afraid, we have to institutionalise something.
Shekhar Gupta: So the time has come?
Fali S Nariman: Time has come I am afraid. Because, you see, with due respect, we don’t have the giants of the bar today, we don’t have the giants of the bench also.
Shekhar Gupta: There is one right here.
Fali S Nariman: No, no. I am not, I am not. Not at all
Shekhar Gupta: The giant of giants then?
Fali S Nariman: That is good of you but no. I don’t have that…
Shekhar Gupta: So, are you saying that this is the idea whose time has come and maybe the higher judiciary would do well to take the lead here instead of again looking like being dragged, kicking and screaming?
Fali S Nariman: You see, I am very angry with their saying that if government tells us to disclose we will disclose. Why? Why should they ask the government? Either you want to disclose it, disclose it or if you don’t want to disclose it, say it is wrong and strike down the law. You have powers, immense powers.
Shekhar Gupta: It was unusual for the Supreme Court to say ‘if the government wants’.
Fali S Nariman: I was very disappointed because that is exactly what the government wants. It wants to control the judges.
Shekhar Gupta: That is exactly what the political class wants to hear.
Fali S Nariman: Yes. And I am very regretful that that sort of a statement…
Shekhar Gupta: Did you pull the leg of some of the judges saying why have you done this? Admonish them?
Fali S Nariman: Let’s leave that for another occasion.
Shekhar Gupta: But Fali I know I don’t want to talk in detail about the Diakaran issue. But it is unusual for you to put yourself signature on a petition. You almost never do it.
Fali S Nariman: You are right. I never do it but I will tell you something. The reason I did it was, I mentioned it on television the other day, not because I know this gentleman, I don’t know him at all. I have never appeared before him. I have heard stray reports but that is nothing. That doesn’t mean I should put my signature. There were three or four senior advocates, whom I place great reliance, of Madras who told me certain things which shocked me about this particular gentleman. Now it may be wrong or it may be right, therefore, I only put my signature to a letter which said, ‘Please investigate, sir, before you appoint him’. Because as I told you, we (bar) have no power to veto, no power to appoint, we have only the ability because of our stature, because of what we are at the bar, to tell the judges please have a look and then if you want, do it. Besides, if there is such a clamour against him, then drop him. There are 500 other judges of the High Courts whom you can appoint.
Shekhar Gupta: Many would say clamour rises because of caste, because somebody is from the underclass….
Fali S Nariman: Maybe, maybe. You are quite right. Discount all that. Take that into account, I am not saying don’t. If you take that into account and say this is totally worthless but why should very senior advocates put their name and stake their reputation to these charges.
Shekhar Gupta: And some of the people who have done it are people who you trust in Madras ?
Fali S Nariman: Absolutely. And now we have Karnataka, the whole bar has passed some sort of a resolution this morning. Now…
Shekhar Gupta: Are there particular lawyers that you respect in that. Are there particular names that you think are eminent people and they don’t do this flippantly?
Fali S Nariman: You take a man like Mr Arvind Dattar , top class lawyer in the Supreme Court, Shri Ram Panchoo, a very good mediator, he has done a lot for Madras bar, and people like that. Now if these are people who are so eminent then you must trust them. And I was only a spokesman for them and the reason why I was their spokesman was not because Mr Justice X or Y is brought here, therefore, I oppose him. I don’t oppose anybody. I only oppose that you are really introducing something which you may regret later. So, please be careful.
Shekhar Gupta: And which may then weaken the institution?
Fali S Nariman: Totally weaken the institution.
Shekhar Gupta: Not just the Supreme Court but judiciary itself.
Fali S Nariman: Because we can’t get rid of a judge once we appoint him. I mean, almost you can not. The impeachment…..
Shekhar Gupta: and then maybe the political class may start thinking of easier ways of doing that.
Fali S Nariman: I don’t want this institution of ours where I have practiced continuously since 1972 to become some sort of a shop or bazaar, for God’s sake. I would rather stop practice. Because otherwise they would say look like you are also part of it. Why are you complaining? You won such and such case. You must have done something. And believe me, it is when you win something that you realise that something hanky panky has gone on. I will tell you something. A judge from Bombay High Court, one of the judges who were not given any work by Chief Justice Chetartosh Mukjerjee, I was asked to appear before him in a review. A decree had been passed for rejectment and this was a review. Anyway, we went there and the judge ate out of my hand. He said, yes, yes, you are right, it should be reviewed. Mr Rane, very brave member of the bar from appellate side was very angry and he told me outside that this judge is corrupt. He has taken money and I believed it because when the matter came to the Supreme Court, I was appearing for these clients, and the court immediately called upon me and said Mr Nariman what do you have to say. I said I have nothing to say and sat down. So, they admitted the appeal. This is the sort of thing that happens when you are in the driving seat, when you are the person who has won the matter that you realise why you have won a case you should have lost. And…
Shekhar Gupta: And then you figure something did something?
Fali S Nariman: You figure something did something. Then I said Chetartosh Mukjerjee, then Chief Justice of Bombay High Court was right who did not give these judges any work because of this scandal at the bar.
Shekhar Gupta: So, in terms of the history of Indian higher judiciary, this is a moment of crisis?
Fali S Nariman: This is a moment of crisis, I am afraid.
Shekhar Gupta: How big is it? Is it one of the biggest or is the biggest after the emergency?
Fali S Nariman: It the biggest after the emergency and it is unfortunate that it is brought on. It could have been avoided. This is a lack of preparation, lack of homework, if I may say so without meaning disrespect, to the five good judges of our Supreme Court, the first five…
Shekhar Gupta: The collegium?
Fali S Nariman: The collegium, yeah, that you must do much more homework when you recommend the name. Once the recommendation has gone out, it will be very difficult for them to withdraw it.
Shekhar Gupta: It will look one more loss of face.
Fali S Nariman: One more loss of face or you are giving in to the bar like that, which is not correct also.
Shekhar Gupta: And then this will embolden maybe in some cases bar with the wrong motive.
Fali S Nariman: Yes, quite right.
Shekhar Gupta: So, it is best not to expose your flank like this?
Fali S Nariman: You should not.
Shekhar Gupta: What is your advice now to these five wisest judges in India , among the five wisest in the world, the five busiest in the world on how to get out of the situation?
Fali S Nariman: You see, in the first place as I said before, while the system is there, make it work properly. Each of you, or one of you atleast, whenever you want to fill a place from the High Court, please go there, find out from the bar what their impression are. You need not do it publicly, you just go there, find out from everybody concerned because you never know who will say what. Make an assessment yourself, because ultimately they are wise people, as you said the five wise men, they should really do it and perhaps a woman in addition would help.
Shekhar Gupta: That is one problem, Supreme Court not having a woman judge.
Fali S Nariman: We had one, an extremely competent one. But then we must have another. There is absolutely no doubt about that. All the world courts have women as judges.
Shekhar Gupta: So, even if it requires a little bit of affirmative action, we should do it now.
Fali S Nariman: Yeah, we should do it now. There is no doubt.
Shekhar Gupta: Because just the presence of a woman there would bring in a different kind of balance and sensitivity?
Fali S Nariman: I think so.
Shekhar Gupta: You forgot to mention something else. Something you said just a few minutes back.
Fali S Nariman: What?
Shekhar Gupta: Maybe time has now come for the collegium itself to push the idea of a judicial ombudsman and not to hide from it.
Fali S Nariman: I hope so.
Shekhar Gupta: And not to see it as a threat or as an encroachment?
Fali S Nariman: no, not to see it as a comedown or as a check on their power and so on. Because after all it was a court invented scheme of things—we didn’t trust the government that is why the collegium came in.
Shekhar Gupta: And because we still don’t trust the government we would rather have our own ombudsman.
Fali S Nariman: That would be better than a national commission even because National Commission would have the same problem. What do you do with the leader of opposition and the prime minister? What would they know? What would they bother? They will listen either to me or the Chief Justice and make their choices. But here is somebody (Ombudsman) who is concentrating only on the judiciary. He knows what it is, he asks for information, Intelligence Bureau reports…
Shekhar Gupta: And it isn’t only one person, it can be a presidium of three…
Fali S Nariman: It can be, like the Election Commission.
Shekhar Gupta: And that truly is a most original idea and I know this will be talked about now…
Fali S Nariman: It may be criticized and all but something is better than nothing. Because here they are caught on the wrong foot and it is a bit of loss of face. I mean, if I was a member of the presidium or collegium, I would also feel a loss of face. I had myself recommended Mr X and how can I withdraw that recommendation. So there has to be a very cogent reason.
Shekhar Gupta: And a little bit of an, if I may use the expression, fig leaf as well because then they don’t have to step back, the ombudsman can take that call.
Fali S Nariman: That is right. He can take that call and also communicate. There should be a channel of communication between the ombudsman not as a superior but as someone, I mean, who has that authority…
Shekhar Gupta: And that is much better than the law minister or the law secretary?
Fali S Nariman: Yes, of course, for better than what we ever had. Let’s hope something like that happens.
Shekhar Gupta: So, Fali, what I can say is that anytime one has a conversation with you, one learns something new and one goes back thinking. I think what you said today of this new idea of judicial ombudsman should get the country thinking, certainly should get the judiciary and the legal circles thinking. Before I conclude, tell me how do you keep your body and mind getting younger and younger as years pass…?
Fali S Nariman: Oh! My God, I am just coping. I will let you into a secret. I am taking less and less work, much less work than I used to because there is no point in showing that I am the greatest…
Shekhar Gupta: But you are taking a lot of burdens.
Fali S Nariman: You have to…
Shekhar Gupta: I mean you could just be sitting back and writing memoirs.
Fali S Nariman: Something like that, yeah. But you have to do something. If you are worth the candle, you have to do something.
Shekhar Gupta: And, when do you start writing your memoirs?
Fali S Nariman: That is an open secret.
Shekhar Gupta: Well, I mean when you do think of that, you remember you have a neighbour who can come and help you, reading the notes at least.
Fali S Nariman: Thank you.
Shekhar Gupta: Thank you very much, Fali.
Fali S Nariman: We will walk one more talk.
Shekhar Gupta: Absolutely. So wonderful of you to find time and so wonderful of you to actually stand up and be counted in this situation. We need more people like you. Thank you.
Fali S Nariman: Thank you.