[Exclusive Interview] "IB reports on appointment of judges not fool-proof", Justice Deepak Gupta

Whether it has been speaking out against the misuse of sedition law or highlighting problems in the judiciary while still holding office, Justice Deepak Gupta has never been one to shy away from making bold statements.Justice Gupta, who retired from the Supreme Court yesterday, spoke to Bar & Bench in a freewheeling telephonic interview, hours after his virtual farewell..We cannot be like an ostrich hiding our head and say nothing is wrong with the judiciary: Justice Deepak Gupta during online SCBA Farewell.Over the course of the interview, he touches upon the courts' move to hearing cases by video-conferencing during the COVID-19 lockdown, transparency in judicial appointments, and more..Debayan Roy: You are retiring from the Supreme Court at a time when it is going through a new phase of hearings via video conferencing. How do you see the Court adapting to this? Is there any room for improvement in the procedure surrounding these virtual hearings?Justice Deepak Gupta: See, this is not only with COVID-19. I have been involved with Justice Madan B Lokur in the e-Courts project. As Chief Justice of various high courts, I have always felt that we must take advantage of the tremendous scope to make justice cheaper and to make it more accessible to the people of the country.But we have to decide where we can do it. It cannot be done in every case. You cannot decide constitutional matters on video-conferencing. You cannot have a trial by video-conferencing, but remand cases can be heard via video conferencing. In trial courts, there are so many witnesses who are formal witnesses. The parties can agree that they can be examined by video conference or on affidavit. So many times, doctors are called to give evidence in medical cases and they are required more in hospitals than in courts. So for them, it can be done..For the Supreme Court, the Chief Justice of India has taken this new initiative, but we are currently facing a lot of glitches at the present moment. However, I have had about six hearings via video-conferencing and each has been better than the other, with the last one being absolutely glitch-free. We require tremendous bandwidth to make it completely glitch-free..I do not foresee in the near future that we will turn into virtual courts, but I do feel that two to three types of cases can indeed be handled in virtual courts.Justice Deepak Gupta.These transfer petitions like the ones that come up for transfer of matrimonial cases, no arguments are required in that. Some bail applications or chamber matters, all these can be handled via video conferencing.At the trial courts, if we handle remand cases via virtual hearing, then there is tremendous scope for this technology. There is also e-filing, which makes access to justice so much cheaper. Lawyers in say Shimla, Madras, etc can file the case by email and argue it over video-conferencing, which saves them from coming to the Supreme Court.If you do a statistical analysis, the states close to Delhi give the maximum number of cases to the Supreme Court. Someone from the North-East or extreme South cannot even afford to travel to Delhi, leave aside paying the counsel fees. We are facing some teething problems, but with time, we can overcome those.There is one issue raised that this process lacks transparency. This is an easily solvable issue because if you have live streaming of all these cases, then nobody will watch them. Nobody wants to hear cases unless they are very sensational. Even if you live stream cases I have mentioned earlier like the transfer or remand applications, you would not need extra bandwidth, as many will not watch these..DR: There have been calls to make the Supreme Court a purely Constitutional Court. Do you agree with this idea?.Justice Gupta: To be honest, I feel the Supreme Court is doing too many cases it has no business doing. We are entertaining many cases and we need to trust our high courts. See, a second appeal goes through three levels and gets decided there, and we just cannot start entertaining all of them. Unfortunately, because we do not sit en banc and we sit in different combinations, every judge has his own perception. There are some judges who feel that they are the final courts and must entertain matters, and some of us feel that finality should be given to the High Court judgments. Sometimes they [HC decisions] may be right and sometimes they may be wrong, but the Supreme Court cannot always correct every error..To be honest, I feel the Supreme Court is doing too many cases it has no business doing.Justice Deepak Gupta.DR: There has been a lot of debate recently on how cases get listed in the Supreme Court and how “urgency” is defined. Is there a way to allay all confusions?Justice Gupta: I have been the Chief Justice of two courts for four years, and I say that if human intervention is minimal and the listing of cases is completely computerised, then such confusions can be avoided. Obviously, the Chief Justice has to frame the roster since he is master of the roster, but once the roster is made, the case can go to any one of three benches. It's often about the perception that Deepak Gupta is a very tough judge so let us not get a case listed before him or ‘X’ judge is a liberal judge or vice versa. So it is nothing about contacts, etc. By the time a judge completes one or two years in the court, how he deals with cases is by and large known and thus if human intervention is minimal with the use of computers, then that will be the best..DR: When you were speaking yesterday at the SCBA farewell, you said that members of the judiciary cannot be like ostriches burying their heads thinking all is well. Can you elaborate for us?Justice Gupta: Here, when I talk of the judiciary, I speak of the lowest level also. There are all sorts of people in the system and some people we have to identify who should not be there. I want to clarify that this remark was not meant only for the Supreme Court, but it was meant for the judiciary in general. We should not be acting like there is nothing wrong. For the Supreme Court, we need to introspect and see how we should have some policy decisions to check how cases should be dealt with. It does not mean that the individual perception of the view of a judge has to be done away with, but I feel that there are certain cases in which normally the judges should not interfere. There should be a policy of the Court to look into this..DR: You have said on more than one occasion that criticism of the executive, the judiciary, or the armed forces cannot be termed ‘anti-national’. How do we ensure that this notion becomes a reality?Justice Gupta: It is not like that I [am the only one to] have said this, it has been said by the Supreme Court in so many cases. Now this has to be implemented both by the administration, and if the matters come to court, then by the court. What pains me a little bit is that magistrates at the drop of a hat start issuing notices on such frivolous complaints without bothering to see if it's in accordance with the law laid down by the Supreme Court or not. If they don't do this, then it would not be an issue.."Disturbing to note that dissent is being treated as anti-national", Justice Deepak Gupta speaks on Democracy and Dissent [LIVE UPDATES].DR: How much pressure does a judge face from the Executive? Is there a price to pay for ruling without fear or favour?Justice Gupta: I can say this with a matter of pride that in almost 16 years of the profession, I have never been approached. You make your reputation in the first year and everybody knows that you cannot be approached. I have reached this court from a small court like [High Court of] Himachal Pradesh and till now I have never paid any price. I think I have been rewarded for my honesty..DR: Just before the pandemic, there was a notion that the higher judiciary - particularly the Supreme Court - was dealing with important cases by simply adjourning them, and was increasingly siding with the Executive. What is your take on this?Justice Gupta: If the cases are important, they must be decided whether there is a calamity or not. We have to decide and we cannot shirk away our responsibility and not decide cases. But when cases are filed which are totally frivolous, then you sort of break up the system wherein the judges become reluctant to interfere in more important matters. If you ask so many reliefs in a petition, then this happens. If you choose one good relief, the court may be able to give it. But if you ask for 20 reliefs out of which 18 are frivolous, then the tendency of the judge may be to reject this..DR: On the topic of judicial appointments, do you think the reasons given by the Collegium for appointing/not appointing/transferring a judge should be made available in the public domain, in the interests of transparency?Justice Gupta: There are two issues about it. If you reject somebody and you give reasons, suppose it is a lawyer, then how does that man deal with it? This is like a judgment without a hearing, as we have not really dealt with it. There may be a reason like sometimes an IB report comes and that report may or may not be correct. This could ruin a person's reputation. A brief summary that we considered it and not found it fit may be okay. I am all for transparency, but how do you work out this transparency when appointments are being made at the highest level, because even when you reject a person, you may reject him for a reason.Let me be honest, sometimes we reject on the basis of some information that we have on our own. But we can never put it in writing because there is no perfect proof of it. It is a very difficult thing to do. But I do feel the Collegium must have a proper Secretariat like what was proposed in the judgment by the Supreme Court. The material on the judges and lawyers, whoever has to be appointed, there should be an analysis of the cases they have argued as lawyers, or their level of practice.For district judges, not just ACR and all, but also the judgments delivered [must be considered]. The Secretariat can do all of these; some eminent persons could look into the judgments. This is because we do not have a very transparent system of assessing the quality of the judges..DR: Do you think Intelligence Bureau reports, on the basis of which appointments and transfers are often made, are fool-proof ?Justice Gupta: I have personal knowledge that some of the reports are not correct. They are not fool-proof. I know a judge of the Delhi High Court who is a friend of mine and he was rejected because of a nickname he was referred to indicating he was addicted to liquor, whereas he was a teetotaller. I am not casting aspersions on the IB, but they also collect information. A IB man goes to the Bar and if he is very anti the person who is being considered, then a totally different report can be given. Thus, a different method of assessment should be looked at where judgments etc are looked at and also consider the integrity of the person..DR: Do you feel you have more to offer? From a larger perspective, do you think the retirement age of judges should be increased?Justice Gupta: In my view, the retirement age of judges should be much higher like 70 or 75, but with one condition which my friend Arun Jaitley used to say, that there would be no post-retirement job. For me, having a post-retirement job is an anathema. Especially government post-retirement posts, as government is one of the biggest litigants in the country..DR: Apart from law, what else interests you? Any favourite books that you are reading?Justice Gupta: Lots of books, I have just finished The Anarchy: The East India Company, Corporate Violence, and the Pillage of an Empire by William Dalrymple. I am also reading something on Dara Shikoh. I have a varied interest. I love my wildlife photography and I travel a lot. I am also missing out on my 8 km morning walk everyday, which I hope to resume.