Social Justice Has Been Placed On The Back-Burner By The Supreme Court In The Last Few Years: Justice Madan Lokur
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The launch of "In pursuit of Justice: An autobiography" by late Justice Rajinder Sachar on Tuesday evening witnessed an interesting panel discussion on "Personal Freedom and Judiciary"The following are the excerpts from the discussion, moderated by renowned journalist Rajdeep Sardesai, among former Supreme Court judge Justice Madan B. Lokur and senior advocates Kapil Sibal and Mukul...
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The launch of "In pursuit of Justice: An autobiography" by late Justice Rajinder Sachar on Tuesday evening witnessed an interesting panel discussion on "Personal Freedom and Judiciary"
The following are the excerpts from the discussion, moderated by renowned journalist Rajdeep Sardesai, among former Supreme Court judge Justice Madan B. Lokur and senior advocates Kapil Sibal and Mukul Rohatgi.
On whether social justice has come to be placed on the back burner by the Supreme Court in the last few years
Justice Lokur agreed that the Supreme Court has lost its way in so far is social justice is concerned. He said that about 6 to 7 years ago, when the social justice bench of the Supreme Court was inaugurated, the first case that it had heard was about the rehabilitation of the Sardar Sarovar Dam oustees, filed by social activist Medha Patkar.
"Then we dealt with a variety of issues. But in the last two years or so, Social justice has been placed on the back-burner. Because of the pandemic, the Supreme Court should have been far, far more proactive – there was the issue of the migrant labourers, there were thousands of people who were thrown out of their jobs. The Supreme Court could have done better than what it did. So I agree that in the last couple of years, social justice has been placed on the backburner. But unfortunately, we must live with it", he said.
Agreeing with Justice Lokur, Mr Rohatgi also stated that that the prime place in the Constitution of India and in the Supreme Court, which he called the "conscience keeper of the nation", is accorded to the infraction of liberty, which has been pushed back in the last few years.
"Even habeas corpus petitions have been taking six months to a year to decide. However, initially, these petitions were taken up with utmost priority and decided within two weeks...now other things have taken over", he said.
However, he added as a word of caution that while it is very well to blame the court, the Supreme Court has "taken on too much" and that the role of the traditional court has been lost-
"So when you take on too much work, the priorities may differ and inconsistencies may come in. However, the Supreme Court must shrug off this inaction and take up vigorously those cases which need to be"
In his turn, Mr. Sibal expressed the view that both Justice Lokur and Mr Rohatgi are right.
"The Supreme Court has lost its way, not just two years but several years ago. Today, the highly political issues are being taken up. Issues of liberty have been brushed under the carpet. As regards habeas corpus petitions, the case of people being detained in the Kashmir issue for more than a year, which was not under some preventive detention order, but for breach of peace under section 144 of the Cr. P. C. where the detention can only be for a few months but it was extended from time to time, the Supreme Court took no notice. The issue of communication between people, which is the heart of liberty, had not been dealt with. As regards migrant labourers, one law officer came to the Supreme Court and said that there are no people walking on the highways. This is what was said in the court when social media and TV channels showed thousands of people walking on the roads because they had no other means of getting home. There were people who were not supplied with food and it was incumbent on the government under the Disaster Management Act to deal with it, particularly by the National Disaster Management Authority which is headed by the Prime Minister. Businesses, small and medium enterprises had lost out-the court had to reach out to them and ask them how they are doing. But the matters have been lingering for months. We have been too soft on the Supreme Court. What we see is corporate matters coming up and being heard for days at an end. But the more important issues of electoral bonds, CAA are not on the roster of the court at all", he advanced.
On how, amid the highly polarised and politicised society, should the judges remain aloof and deliver equitable justice in accordance with the law above all
Justice Lokur was of the view that there are two "mantras" which Justice Sachar has also mentioned in his autobiography – one, it is the Constitution of India which is above everything, and too, judges must be people oriented.
"Don't get into the technicalities of the law, procedure etc. Do what is called 'human justice'. Justice Sachar has cited a case of divorce by mutual consent which he had dealt with. The law requires a petition for mutual divorce to be filed before the district judge in the trial court, then there is a six month waiting period, post with a divorce is granted. However, the case before him had come in the High Court. The couple in question had not been living together for two years. And they wanted a divorce by mutual consent. One point of view could be how could you come to the High Court? How could the six months period be waived? But Justice Sachar did not let this technicality stand in the way and said 'if they want a divorce, they want to divorce, and and I should give them a divorce'. So judges must keep the Constitution and people in mind to deliver justice", he explained.
On UP Love-Jihad Ordinance
As regards the UP Ordinance barring marriages involving religious conversions, Justice Lokur was of the view that seen from the legal and constitutional perspective, the Ordinance contains so many defects-
"The judge doesn't have to go into the politics, he has to look at if the law is constitutionally valid or not. For example, the Constitution requires for an Ordinance to be brought only if very immediate action is required. In this case, was it important to bring in an Ordinance when the Vidhan Sabha was not in session? There was absolutely nothing to warrant for it. Is the Ordinance people oriented? What are the problems which interfaith couples would find- They would have to move an application before the District Magistrate. Even after the marriage, they have to report to somebody. Either from the point of view of the Constitution or from the point of view of the people, there is no way that the law can be sustained".
Mr. Rohatgi, however, did not agree that the balance of power has shifted from the Judiciary to the Executive-
"Our Constitution provides for the separation of powers. My view is that in the last 30 to 40 years, the balance has sharply shifted in favour of the judiciary. The judiciary has been infringing in the turf of the Legislature and the Executive by the process of judgements etc. The Executive in fact was not capable of defending its own turf. That is why it shifted to the right, the right being the Judiciary. If at all the power has now somewhat shifted back to the Centre, it is only that what was extreme right in one part of the chamber has now shifted back a little. But it would not be correct to say that the Supreme Court has helmed it. There is no question of helming it. The Constitution of India is the Holy Grail of the people vis-a-vis the government", he expressed.
Mr. Rohatgi continued to assert that it is only a perception that the judiciary is not independent.
"If the CAA or the Kashmir issue had been decided in six months, then the balance would have remained where it is? Some aberrations will always occur. Justice is delivered by an individual or a group of individuals called judges, not by a machine, where you put in the problem and out comes the answer. Perception may vary – what should be taken up first, what should not. History then sees whether it was right or not", he said.
As regards the Ordinance, he voiced his belief that forced marriages and conversions are happening galore. If a law has been brought in, it is ultimately the will of the Assembly or the Parliament which is supreme, they have to decide what the populace requires at a point of time. It is not for the court to decide whether a law should have been brought in or not, but the court can only see whether there has been any abuse or if the law is one which could not have framed by the legislature or if any constitutional guarantees have been infringed.
"The court must be dispassionate. It should not enter into whether there is love jihad or not, whether it is pernicious or not. It must keep aloof from the milieu and what is going on in the milieu", he said.
On whether judges, by their nature, should remain outside the political noise, and whether the delay of justice in human rights cases is an institutional or an individual problem
Mr. Sibal was of the opinion that without doubt, judges have nothing to do with the political thicket.
"If you look at the Fundamental Rights, the only term that is used is 'citizen'.It is stipulated that 'all citizens' must have these rights. Or that 'no citizen' must do so and so. Throughout the Chapter, the focus is on 'citizens'. The judiciary must look at the law from the context of the rights of the citizens of the country. Can they actually look at what caste they belong to or what religion they belong to? The Supreme Court has forgotten that 'citizen' has no relation to caste, creed, religion. Nobody should be dealt with other than in his capacity as a citizen", he pointed out.
"What happened during ADM Jabalpur. The judges did not rise to the occasion. This resulted in a great judicial disaster. Now we see several similar instances. The problem cannot be institutional because some judges of the Supreme Court are passionately dealing with the issues of liberty but some are not. Ultimately, it is dependent on the man sitting there and deciding the matter. If judges are not made of sterner stuff, you will have the kind of judgements that you do. Of course, Justice Lokur was dealing with social justice issues every day. The Constitution is in his blood. We don't have men like him anymore", continued Mr. Sibal.
Justice Lokur opined that the problem is a mixture of both individual and institutional factors. He cited an example from Justice Sachar's autobiography, where the late judge had dealt with the case of the 1984 riots in Delhi.
"The case had spilled over to January next year and the Chief Justice assigned criminal cases to him, taking him out of the roster. Now whatever order he was going to pass was frustrated as he was not on that bench anymore. In a situation like this, the CJ represents the institution, not himself individually. We had this problem in the Supreme Court-the master of the roster is incharge. If you decide to shift the case from here to there, give precedence to some cases and not to others, it becomes an institutional problem", explained Justice Lokur.
"You also have individual problems – some judge may say that there is no urgency in habeas corpus petitions because these people are terrorist etc or that I don't want to hear a particular kind of case so I'll push it by 2-3 months because I am interested in our kind of cases. Other judges may have another point of view. If it is an individual problem, the judges must be made of sterner stuff. Justice Sachar has written in his own biography but he knew a lot of politicians and that, in fact, he had wanted to resign and contest elections. He was into politics but politicians didn't rule his judgements. He was made of sterner stuff. If you are not made of that stuff, you get judgements like ADM Jabalpur, or views like there is no hurry in deciding a certain category of cases but we don't mind sitting in vacation to hear that certain category of cases. That is when there is an individual problem", continued the judge.
"Like in these matters of habeas corpus and detentions, on the principles of the Constitution, Justice Sachar would have stepped in! You can't keep a person in preventive custody, without a trial! And it is not just adults but children in preventive detention! Justice Sachar would have fought for them!", asserted Justice Lokur.
As regards Justice Lokur's statement then judges should be made of sterner stuff, Mr. Rohatgi pointed out that judges are drawn essentially from the pool of lawyers. He pointed out that even an average lawyer is not willing to become a judge because of the remuneration that judges receive.
"Compared to an average lawyer, a judge only makes 1/5th. And compared to a good lawyer, the income of a judge is 1/20th. A good lawyer would say that he has young children, who will get them married, who will get them educated? The old notions have now gone", he said.
"In 1950, the salary of judges was Rs. 4000. My father became a judge in 1972 for 3,500. There was no driver, we had our own car. We used to get Rs. 100 for petrol. We survived. That has now come to 2.5 lakh today. What was the value of Rs. 4000 then? So people don't want to become judges. You will get third-rate lawyers becoming judges and going on to higher posts. How are you going to get sterner stuff? If you increase the salary, then the bureaucrats, the Cabinet Secretary, the ministers, the Army will say that they also want an increase. So it is a hornet's nest- if you open it up, many things will come out", remarked Mr. Rohatgi.
"As regards Stan Samy and 'X', 'Y' other people, there may be aberration. The journalist who got bail in the vacation, there may be different points of view. But I think it was rightly heard in the vacation. Freedom of speech is one of our most cherished freedoms. That bail is equal to 1000 regular bails. It is not possible to hear thousand regular bills in the vacation, so somewhere there has to be some prioritisation. In hindsight, you can always say that this is wrong or this is right. There are hundred problems in the Executive, there is the Babu making the law, there are problems of the judiciary. Some judges say they want to hear, some say they don't want o hear. 30 years ago, we had a judge before whom if you appeared for the landlord, you could never win the case. In the next court, if you were appearing for the tenant, you could never win the case. So the ideology of the judge varies, there is an individualistic streak also. You need sterner stuff, but it is difficult to get and to get-by", Mr. Rohatgi expressed.
As regards the Chief Justice of a court being an institutional problem, Mr. Sibal was of the view that it is institutional only because he happens to be the Chief Justice of that court, so to that extent it is an institutional problem. "But it is an individual problem. Not every Chief Justice would do what some have done, to pick and choose the bench. When the Chief Justice does not do this, it is not an institutional problem", he elaborated.
"Of course, the issues are complex. But if the issues are simple, then there would be no problem. That is why the judges are there to - deal with the complex issues. The number of cases have always been more than the number of judges, the situation has always been like this in the past 45 years. But now we the Chief justice of the Supreme Court sitting in judgement on his own case! Has it ever happened in the history of the court? We see Chidambaram not getting a date for hearing! It is fine if some people get a date before the vacation bench, but why should the other people not? The journalist in that Hathras matter (Siddique Kappan) has not been getting a hearing, he has been asked to go back to the trial court or to the High Court. The issue is the man sitting there!", he said.
"And judges of the Supreme Court are not third-rate lawyers. Some of them are very bright people sitting there. They were exceptionally good lawyers. A man without a large practice cannot be a good judge? The question is that sitting there, what have they done? People with moderate practises can be wonderful judges-we see it in the Delhi High Court. Ultimately, it is the attitude towards the Constitution, the people of India and the values you must uphold", he iterated.
"If you have your heart in the right place, you will never go wrong. That is the problem with the Indian judiciary", articulated Mr. Sibal
On whether the actions of the judges should also be judged
Justice Lokur asserted that it is necessary that judges should be scrutinised. "Recently, the Supreme Court deprecated the practice of one particular High Court to pass final orders without reasoned judgments. I had the occasion to say the same thing twice for the same High Court. It was a case where the demolition of a building was ordered and the judge said that the reasons will follow. The reason never came. In the SLP, we had no option but to stay. In Talwandi's case, the Supreme Court said that you have to give reasons in the order. The High Court had releases the person from the preventive detention. The Attorney General told the Supreme Court that he had no idea why the person had been released. The five-judge bench said that reasons have to be given. So this is one aspect of accountability", canvassed the judge.
"The other is the length of the judgement. Nobody reads 800-900 page judgements. So there are a lot of issues for introspection. The Supreme Court judges need to sit down and try to improve the situation...There was this one Chief Justice who had said in April that there will be monthly full court meetings. I asked in July when it was due. He said 'I am getting bad vibes'...", said Justice Lokur.
Mr. Rohatgi also expressed the wish that the situation changes, commenting that "it is not very sanguine". "And the change is needed, not just from the court, but from every quarter-the government, the law ministry, the archaic laws need to be changed, we have to reduce the number of appeals, there has to be accountability in the High Courts and the Supreme Court. The High Court scrutinises the work of the district judge, but there is nobody to do the same for the High Court judges. The Supreme Court does not have appellate power in that sense. And what about 800-page judgements from the Supreme Court? The same issue of giving reasons also happens here in the Supreme Court and it takes 8 to 10 months to deliver the judgement", said Mr. Rohatgi.
" The rules must apply to the gander! Accountability has to be there! And it is not difficult to achieve - There are 1000 High Court judges in the country and 30 Supreme Court judges. Why can't somebody judge the work of a judge? There are some judges of the High Court who deliver 300 to 500 judgements in a year and there are some others who deliver just 10. You blame that a bureaucrat has a stable tenure and cannot be removed except for the archaic procedure of enquiry. So, similarly, nobody can remove a judge, except by the procedure of impeachment, which has never happened in 50 years. If you become a judge and you don't want to pull the weight of the post that you hold and deliver only 10 judgements in a year, nobody can say anything. You may only get transferred from Madhya Pradesh to Chhattisgarh to Calcutta, which does not matter. A judge is a judge. Wherever he goes, he will have the same traits. If he is not working in Delhi, he won't work anywhere else", continued Mr. Rohatgi.
"A host of constitutional changes are required. In the US, when somebody becomes a judge, there are debates on National TV. Someone can ask him, 'Did you smoke a joint when you were 17' and he has to answer. In India, though the collegium system has been upheld, but half of the judges even today will tell you that the system is no good. There are no reasons accorded for who is appointed, how somebody is appointed and why he is appointed", voiced Mr. Rohatgi.
Mr. Sibal expressed his strong opinion that judges should not join politics after they have served the court, even with a 2-3 year gap upon the end of their tenure as judges. "Justice Rajinder Sachar was given the Padma award and he refused it! This is about integrity in the political system and in the judicial system", he said.
Finally, he proceeded to state that a solution is difficult to come by in these times as "these are very difficult times". "You can criticise the Parliament and the Executive, they are open. But it is not so for the Judiciary- a lot of what happens does not come out", he concluded.