‘Judges are neither gods nor lords. It’s just a job’

Civil Society News, New Delhi

IT is to the courts that citizens turn when all else fails. The standards of members of the judiciary therefore have a direct bearing on the quality of justice. How judges perform and the seriousness with which they take their role reaffirms the faith people have in democracy.

Increasingly, however, there have been serious concerns over the uprightness of judges and the influences they might be coming under. The very system of appointments has been called into question. A collegium of judges which selects judges has been criticized as being too much of a club behind closed doors and beyond public scrutiny.

How can the system be made more transparent while preserving the independence of the judiciary? What form of oversight would provide better accountability without becoming political interference?

We put some of these complex questions to Justice Sanjib Banerjee, who not too long ago retired as Chief Justice of the Meghalaya High Court and was earlier Chief Justice of the Madras High Court.

 

Q: The seizing of notes at a high court judge’s outhouse in Delhi has led to demands for looking afresh at the whole question of judicial appointments. What do you think has led to this kind of response? Is there a crisis of public confidence in the probity of judges?

There cannot be a short or simple answer to this. There is a question of probity, but to be fair to the judge we have to await the outcome of the investigation. I hope the committee that has been formed by the Chief Justice of India goes deep into the matter. The judge must be given a fair hearing because he has completely disowned the money.

There are certain other disturbing facts. Would you keep sacks of money in an outhouse that has no connection with your house? There was nothing wrong heard about this judge prior to this incident. He has to be given a fair hearing. 

As for the collegium system and the manner in which judges are appointed and elevated, there is a lot of doubt even in the minds of judges, leave alone the public. The system is opaque and sometimes unfair. And, even if I do not get personal about it, I would say that the system needs to be improved. But, at the same time, the primacy in the matter of appointments and elevation should always be with the judiciary. The system can be improved. The government of the day has to have a seat at the table, but the primacy must remain with the Chief Justice of India.

 

Q: In a democracy, how the judiciary is perceived matters so much. You’ve been a judge for the longest time and been known for being upright and frank. How difficult is it to manage perception?

The job is such that at the end of the day there may be more than one aggrieved party in a matter. And the party who loses, or their advocates, just to save their skin, would blame the judge or blame completely extraneous issues. So the judge has to be insulated from that. Over a period of time judges do acquire a reputation. Within the corridors, both among judges and the bar, reputation is very important. But there are a lot of rotten apples we need to get rid of. 

 

 

At the same time and, again, this is something that I’ve been repeating, there are disciplinary bodies in all professional organizations, including the Bar Council for lawyers. Most of these disciplinary bodies, including the chartered accountants body, the Medical Council, are so politicized that they have no credibility. They take no disciplinary action in almost every case where a judge is fixed. There are judges who get fixed and invariably there is a lawyer conduit. Who’s the fixer? You’ve got to look at that end of it, which the judiciary cannot control.

 

Q: We see the state as only growing in power. Does the judiciary need more protection to be able to perform independently? There is constitutional protection, but here we are looking at realities on the ground.

I don’t think so. We have sufficient physical protection. We are kind of insulated in a sense. And for several people like me, who during their career did not go out to social functions, sometimes there may even be a disconnect. Accountability is probably something that we need a lot more of.

 

Q: How much freedom have you enjoyed as a judge?

All these years complete freedom. I have never been approached by any government or any other person. So, it’s really up to the judge and the reputation that precedes him. That’s the wall around him, a wall that’s very difficult to break.

 

Q: How well do you think the collegium system has worked?

I think it worked at the time the collegium system was brought about by interpreting the Constitution in a rather imaginative way. It was absolutely necessary or the judiciary would have been completely destroyed. You would have had relatives of politicians manning the Supreme Court and the high courts. It was necessary.

But, in the course of time, it has degenerated and merit is not always the primary consideration. There is a lot of nepotism. There’s a lot of ‘you scratch my back, I scratch yours’ that goes on.

But again, you know, we do not have a perfect democratic set-up. What is democracy unless there is reasoned choice? With a lot of people uneducated or unaware, there is no reasoned choice. But I can’t say that you give up democracy because it’s not the perfect thing.

So, let’s get something better with the collegium system. But till then, let us not use this as an excuse to dismantle the equilibrium system. In fact, going by some reports, we don’t know whether this judge (Justice Yashwant Varma) has been framed and the entire thing has been kind of brought up to start a motivated debate on the collegium system and for the government of the day to take control of appointments altogether.

As it is, we’ve had two senior retired Supreme Court judges say that the collegium system has been turned on its head. Instead of the collegium naming judges for appointment or elevation, there is a backdoor clearance which is being obtained from the government and only the names of those cleared by the government are thereafter recommended.

Unfortunately, we’ve had very weak Chief Justices over the past few years. And I say weak rather charitably. It’s been worse than weak in some cases. And if the Chief Justice of India turns the collegium system on its head, there’s nobody to check that.

 

Q: How should judges be reforming the system which only they can protect?

First and foremost, I think there should be accountability in terms of personal integrity. There should be a basis of checking quality and performance. What happens when you become a high court judge is that there’s hardly anyone to control you. The chief justice is the first among equals of that high court. He is only the master of the roster.

Sometimes people are spoken to. Sometimes complaints are made to the Chief Justice of India or to the collegium for the purpose of having the judge transferred. But transfer is not a mode of punishment. In fact, our jurisprudence says transfer cannot be a mode of punishment. Yet, there have been transfers out of spite or out of punishment, or to teach the person a lesson. These things need to be addressed and we’ve got to be more honest.

 

Q: How should they be addressed? Is there scope for the entire judiciary to actually sit down and rethink what they’ve been doing with the collegium?

It is possible. We have some very good judges in the country. We have some very good minds, particularly recently retired judges. I think there should be a discussion. A permanent Advisory Board should be set up whose impartiality cannot be questioned, which can advise the Chief Justice of India or the collegium in the matter of appointments and elevation.

That body should have certain powers. For instance, the Advisory Board should get access to police reports, financial reports. The Advisory Board should have a three-year or five-year or six-year tenure without being disturbed. If there is anything which is probably not proper the Advisory Board can take care of it. Between the Advisory Board and the checks and balances that the executive would have, this kind of nepotism, favouritism or considerations other than merit would not come into play.

 

Q: So, a law on judicial appointments like the one that was struck down is a complete no for you?

No. A law on judicial appointments would be alright as long as the primacy was with the Chief Justice of India. There have been jokes about whether the ‘eminent’ person (as envisaged under the act) would be Amartya Sen or Akshay Kumar. You know, it depends on who the eminent person is.

If the eminent person votes one way and the law minister another and if there is a deadlock, there’s going to be a problem. So you have to give primacy to the Chief Justice of India heading the collegium because there are checks and balances within the collegium itself. The three senior-most judges in the country would form the collegium for appointments; as far as the high courts are concerned, the five senior-most judges would be elevated to the Supreme Court.

 

 

Between them they would be aware of what is happening, why it’s happening. The checks would be with the government of the day having a seat at the table and the Advisory Board to which both the government and the collegium must have access.

 

Q: What you say is that there is scope for revisiting the law.

Absolutely. Without a law this cannot happen.

 

Q: A law plus the collegium system or only the collegium system?

A law which will recognize the collegium system and the Advisory Board. Because there would be details and there should be mandatory disclosure of the financial status or financial position of a judge. It should be available to — not the public because sometimes they play havoc with it when it’s put up on the net — at least somebody who can check. We have fantastic intelligence in this country. We have a great police force. They can tell you what you’ve been doing every minute of the day. Unfortunately, the information is used for political purposes and not for the right ends. We have all the systems but when it comes to delivery, other considerations come in the way.

 

Q: The judges have recently said that they are going to declare their assets. It was seen almost as defensive and not as an institutional measure. I think the difference you’re making here is between creating an institution whereby there is greater transparency and this kind of almost emotional knee-jerk response.

Yes, it has to be institutional. It can’t be knee-jerk or ad hoc. The Bangalore Declaration had all these do’s and don’ts and what would be ethical — most of them are wonderful principles, but in due course declaration of assets became kind of optional. As Chief Justice, I could not insist. I tried to in some cases and of course there are favourites against whom if you complain, then you get banished.

 

Q: There is the whole question of the lower judiciary. And the district courts.

Let’s not call it the lower judiciary. It’s the district judiciary.

 

Q: Some concerns have involved about them not having enough decisional independence. People are denied bail because in certain cases they come under pressure. Do you agree with this?

Is the Supreme Court uniform in granting bail? Is the Supreme Court uniform in taking up matters out of turn? Fortunately, I come from a state where there is complete judicial independence in the district judiciary. There have been cases of interference in the odd matter, but the district judiciary does have complete independence. I’m talking about Bengal.

By and large, I had the same experience in the Madras High Court. There was, probably, a little bit more influence of the higher judiciary or some judges over the district judiciary. But in Uttar Pradesh, for instance, the district judges refuse to grant bail. Because if they grant bail, then there are strictures which are passed by the high court.

 

Q:  How should this change?

I think better men and women should be in the judiciary, particularly the higher judiciary. And it’s very important that we have quality control at the time of appointments. I must also say a whole lot of lawyers refuse to become judges.

 

Q: So, this has to change in practice?

It cannot change by law. I can tell you that in Calcutta, we looked down on judges. Only poor lawyers went on to become judges. And that has changed because some people enjoy the perks that come with the office. There used to be red lights during our time. I’ve never used the red light, but a lot of people got attracted to it. You would have a cop walking ahead of you if you went to a mall or you would have your orderly behind you in a different kind of livery.

Those were some of the perks that a lot of people enjoyed. But thankfully, we are rationalizing all that and getting rid of it. The sooner we get rid of lordship the better. Because judges are neither gods nor lords. Sometimes, by addressing them as lords, you make them much more elevated than they ought to be. It’s just another job and people should take it at that. It’s not a divine duty that you’re performing, either. Sometimes judges take themselves too seriously.