Abolish Two Judge Benches; Fali Nariman

From the Idea Exchange Programme conducted by the Indian Express;

In this Idea Exchange moderated by Editor (Legal Affairs) Maneesh Chhibber, constitutional expert Fali Nariman talks about why the idea of a Lokpal selection panel is “absurd”, calls the collegium system of appointing judges “hopeless” and says Manmohan Singh “has failed us”

Maneesh Chhibber: We are going to have a new Chief Justice of India (CJI) in less than a month. What are your views on this?

I think the present CJI has done remarkably well in the last nine months and has scored 90 runs already. He is very polite, very good. And he has taken a liberal view on most things. The next man (Justice R M Lodha), unfortunately, has very little time, though he is an excellent judge. This is the problem with our judiciary. We should have a minimum tenure for chief justices. The problem is they don’t know where to start. If you start now, number two will say you did this to exclude me. But perhaps giving them 67 or 68 as retirement age is the best thing. That’s the trend the world over.

Maneesh Chhibber: In recent times, we have seen the incumbent applying for government posts.
That is a disaster. I have noticed this for the past 15 years. Very few people pack their bags and leave. Everybody seems to hang on for some post or the other, which is demeaning. But that’s because the government doesn’t give them pension equal to their last pay drawn.

Coomi Kapoor: You had resigned as counsel for the Gujarat government on Narmada rehabilitation.
That was terrible. The previous chief minister of Gujarat, Keshubhai Patel, had come to me and I told him in Gujarati, ‘What is all this? Why are you burning Bibles in Gujarat?’ He said, ‘This is is not the correct story and all this will be rectified’. A couple of months later, they were burning Christians instead of Bibles.

Coomi Kapoor: So you wouldn’t take another case of the Gujarat government?
I have not accepted any and they haven’t offered either.

Maneesh Chhibber: What is your view on sitting judges applying for the post of Lokpal?

That’s another shocker.

Shekhar Gupta: There were 12 applicants? 

I declined (to join the Lokpal selection panel), it was not a resignation. I didn’t know this…it appeared to be cooked up because the search committee of which we were members — and we were supposed to be those who searched for people and brought them — was constrained because they said that they will only appoint those whose applications the government had received. So, we couldn’t go outside. The selection committee had the right to choose from outside, not the search committee. That, in retrospect, I think, was a bit of a trick and shouldn’t have been done. We don’t get the Lokpal until the new regime and the Lokpal can’t be chosen like this. The Lokpal can be selected by two or three important people — the PM, if necessary, the President, Leader of Opposition. You can’t do it through this selection process. With our castes and creeds and all sorts of problems, it has to be done in a slightly undemocratic manner. Everything can’t be done very democratically.

Coomi Kapoor: Are you saying there is no need for a search committee? 

Why do you want a panel? This is absurd. I don’t think there should be a panel. That’s why I said that everything can’t be democratic.

Dilip Bobb: Has judicial activism gone beyond a certain level? 

Yes and no, depends on your point of view. How much or how far you should go, how far you shouldn’t go — our Constitution has placed the highest court as the sole interpreter of the Constitution. Occasionally, they go beyond their reach, interfering in schools and colleges and things of that sort. Perhaps that could be avoided. But by and large, they can’t refuse to take a case. Every question becomes a legal question. There is no political question doctrine in India. Every question can be converted into a constitutional question or a statutory question or an administrative law question. But I don’t like the two-judge bench. I have opposed it, but nobody listens to me. The Supreme Court is very important and now that we have 32 judges, it’s possible to have a bench of at least three.

Utkarsh Anand: In the US, they have national courts of appeal and then the Supreme Court. 

I don’t like that either. There’s no point having national courts. We are not cut out for all these innovative ideas. The American Supreme Court has been existing for the last 200-odd years. But they take only 110 cases a year. Somehow, the feeling is that in the high courts, by and large, the people are from one group — not necessarily one religion, but one group of people who are only in that state. Whereas here, you get a mix. If you get a bench of two or three, one will be from one state and the other from another. There are no two states that you can say are entirely similar. People are different. Language is different. Everything is different.

Utkarsh Anand: Do you think the proposed Judicial Appointments Commission will work better than the existing collegium system for appointing judges in higher judiciary? 

I don’t know how that will work. This current system is hopeless.

Dilip Bobb: There have been allegations of sexual harassment and corruption against judges. Do you think the Supreme Court is losing its status? 

My lips are sealed, because I am the amicus curiae appointed by the court in this matter. Generally speaking, it is a matter of great concern to all women at the Bar. In the Anita Hill case, the questioning was very intense and the Senate had to go through 1,000 pages. But we don’t have a screening committee before an appointment. I suppose that won’t work here. From the ’50s to the ’70s, we had excellent judges in the Supreme Court. The government appointed judges — of course, recommended by the Chief Justice every time.

Ambreen Khan: What do you think will be the real impact of Narendra Modi on minorities? 

I am apprehensive.

Ambreen Khan: What do you think about Modi’s impact on the judiciary and the Constitution? 

I don’t know. That depends on the judges. We deserve the judges we get. We deserve the government we get. So you have to be careful. The judges are very conscious of this. They know who is rabid, who is not. You have to be an inclusive person. You have to accommodate everybody. India is a pluralistic society with different views, different ways of living, different types of food, different cultures, different ways of looking at things. That is why we find khap panchayats at one place and not at another. They reflect the general mood of the people. That’s why the prime minister has to have an all-inclusive approach.

Raj Kamal Jha: When you say you are worried about Narendra Modi, what are the things that worry you? 

This problem of trying to become too Hinduised. It is a Hindu society. Hinduism has been a very tolerant religion. But somehow, we have noticed that in the last 20 years, it is not as tolerant as it was. We really need a Gandhi today. I liked Atal Bihari Vajpayee despite the fact that he was a BJP leader. The brief time I spent in Parliament, I realised that he was an outstanding statesman. He wouldn’t sacrifice the interest of the country as a whole for one little problem that came his way. He had that authority which today no leader seems to have in any party.

Arun S: Recently, there was a public interest litigation saying that the Supreme Court should be converted into a constitutional court. 

These are all gimmicks.

Arun S: But due to the huge backlog of cases, the court hardly hears major constitutional matters. 

That is exactly the point —benches of two and three stray into the Constitution, if you like my saying so, and they welcome arguments on the Constitution which strictly speaking may not be valid under Article 145. No one can say that a bench of two interpreting a provision of the Constitution is unconstitutional or wrong; nobody has tried till now. That’s why I said I don’t like benches of two. There should be benches of three or more to decide a question.

Maneesh Chhibber: Modi waves this so-called judicial clean chit and says he hasn’t been held guilty by any court. What is your opinion? 

That may be true. I don’t say no, but if you ask my personal opinion, I get worried, that’s all. Of course, Parsis are alright. We are alright everywhere, there is no difficulty. In fact, he’s very fond of Parsis in Gujarat and Gujarat’s Parsis are very fond of him.

Maneesh Chhibber: If not Modi, who in the BJP would be acceptable to you? 

It’s difficult to say. If you ask me the same question about the Congress, I don’t know. Perhaps someone who is a little more flexible, with a little more oil in his system. Like L K Advani, for instance. Because he has the mantle of Vajpayee, only because of that.

Rakesh Sinha: What is your impression of Prime Minister Manmohan Singh? 

He has failed us, unfortunately. I say this with some regret because I know him, he is a good man. But we are not talking about his qualities as a human being. I am afraid that as the prime minister, he has failed us. In the council of ministers, he is expected to lay down not only policy but is responsible for all that goes on in the government which he heads. So he can’t say that because I have a coalition government, I can’t control these people. It makes no difference whether you can control or not, it is your duty to do it and for that reason, especially in the second term, he has failed us.

Rakesh Sinha: What do you suspect are his constraints? 

I don’t know. Sticking to his office, I suppose, and no other constraints.

Ambreen Khan: If Modi becomes the PM, what impact would it have on our foreign policy? 

Our foreign policy has been very inconsistent of late. I don’t know if anything will be better than the current scenario. Look at the Italian marines case. We have become a laughing stock of the world. Either you try them and acquit them or try them and convict them. Even on Sri Lanka, we are not quite sure whether we’ll do this or that.

Coomi Kapoor: You’ve been very close to the Express group, and there are times when you have bailed us out at critical points. Can you give us some idea of that? 

Ramnath Goenka was your showpiece. He was a tycoon. There were many legal cases like the one pertaining to this Express building. We had a very good judge, A P Sen. Arun Jaitley was my junior and he argued the matter initially. That was a great case and we won. Ramnathji was being harassed by the powers that be. They raked up all his old files and delayed filing all his statements. They launched 320 prosecutions all over India against him and none of the magistrates during the Emergency could give him exemption from court appearance. One day I told him, ‘Ramnathji, enough is enough, we don’t know how long this damn thing will go on, why don’t you compromise?’ ‘Compromise, Nariman? We will fight,’ he said.

Aneesha mathur: What is your take on the Central government trying to issue ordinances after the election has been announced? 

No, you can’t. There is no question. There are precedents of presidents rejecting ordinances during election time.

Aneesha Mathur: About the Naz Foundation case and LGBT rights, some political parties have said they will support these, but the government doesn’t. What should be done if we want such rights? 

Get rid of khap panchayats. That’s where it all starts, all these mad things. People behave so shabbily, women are treated very badly in this country. I read the other day that domestic violence takes away two-three lives a day around the world. I am also not sure if the amendment to the rape law was a good idea. Maybe there is no connection, but I find that after the new rape law, there have been innumerable new cases. I don’t know whether they were all being suppressed before and not reported or there is some sea change, I can’t understand it. Have you ever noticed so many cases of rape after the rape law came in? And now the definition of rape is not the traditional definition. I am not very sure whether the new law has helped very much in attitudes.

James Matthew: Do you think it is right for the Supreme Court to propose a chairman for the BCCI? 

I know there is a lot of criticism of that. But what was done is bona fide, I can assure you. Things had become such a farce that they were all sick and tired of the man who was holding the post.

Muzamil Jaleel: What is your view on the Armed Forces Special Powers Act, the Public Safety Act and national security laws? 

Some sort of national security law is necessary, otherwise terrorists will get the better of you.

Rakesh Sinha: Is the model code of conduct too restrictive? One has to turn to the Election Commission for every decision. 

You have to have a law. I don’t like the model code of conduct. There should be a firm law, otherwise everybody just plays ducks and drakes with everything.

Courtesy; Indian express

Transcribed by Shalini Narayan and Prawesh Lama 

Original Link here