Interview: Justice BR Gavai on Governor’s verdict, Delhi crackers, Justice Sreedharan transfer, dissents and Collegium
Justice BR Gavai, the second Dalit Chief Justice of India (CJI), recently demitted office after completing over six years at the Supreme Court and a judicial career that stretched over two decades.
Justice Gavai was appointed as an additional judge of the Bombay High Court on November 14, 2003 and became a permanent judge in 2005. He was elevated to the Supreme Court on May 24, 2019.
His tenure was marked by some judgments that were lauded and others that were criticised. His observations in court in a case - and the reaction that followed - are perhaps what he will be most remembered for by the common man.
The Collegium he headed made a number of appointments and transfers of judges, including the controversial elevation of Justice Vipul Pancholi to the top court in supersession of more senior candidates.
In this interview with Bar & Bench's Pallavi Saluja, CJI Gavai reveals that the chance of a judge to be the CJI in future is a factor that is considered by the Collegium while appointing judges.
Justice Gavai also defends his actions, both on the judicial as well as on the administrative side, and speaks about "Swadeshi Jurisprudence", dissenting judgments, the Collegium system, transfers of judges and much more.
Edited excerpts follow.
You have started this conversation about "Swadeshi" interpretation. What do you mean by it?
We enacted, adopted and gave ourselves our Constitution in 1950. It is now almost 76 years. So over these 76 years, our Constitution has been interpreted and reinterpreted on many occasions. I don't think that for the interpretation of the Constitution, we need to go to other judgments, because the law is very well-settled. It’s not as if we are totally averse to foreign judgments, but if and when there is no necessity, when the law in our country has evolved and the interpretation of the provisions has been clearly laid down by earlier judgments, when our own judgments are sufficient to interpret the provisions, we need not borrow principles from other jurisdictions.
Do you think the other judges will follow it?
I think this is the verdict of five of us, so all five of us have said it in one voice. I was reading somewhere, this is what Justice Surya Kant had said.
In the Supreme Court, I have authored around 335 to 340 judgments. There are hardly any judgments in which I have referred to other jurisdictions. No doubt there are some where it was necessary, where there was a gap in our judgments, but largely, I don’t think that over the 75 years of the Constitution, it has not been well interpreted. At least insofar as the interpretation of the Constitution is concerned, we did not go to other jurisdictions.
In the Vanashakti review case in which you delivered the majority judgment, Justice Bhuvan delivered a sharp dissent, warning of regression in environmental law. You stood by your judgment and chose not to write a rejoinder. How do you see the etiquette between the majority and the dissent when disagreements are as sharp as this?
I personally always believe that a judgment has to be written to support your view. In the judiciary, every judge is equal and every judge is entitled to take one’s own view. I had given my reasons as to why the review was necessitated.
No doubt a judge is entitled to take a view. But criticising the other judgment, according to me, is not in conformity with judicial discipline, judicial decency and judicial decorum. If I had done the same thing, then I would have fallen into the same trap, which I think was not proper.
Do you think your judgment is regressive by sanctioning retrospective ECs?
Absolutely not.
We have given the reasons. The three judgments on which Vanashakti relied were Common Cause v. Union of India, Alembic Pharmaceuticals Limited v. Rohit Prajapati and Others and Electrosteel Steels Limited v. Union of India. In all those judgments, though certain observations were made, if you read the ultimate analysis and the ultimate conclusion, they all moved towards a balanced approach.
Even in Common Cause, the Court held that till they get the ECs, their mining activities shall stand stopped and for the earlier period when mining was conducted, they would have to pay penalties. They could restart activities once they got ECs. Even in Electrosteel, the industries were saved; the Court directed huge penalties to be paid by all three industries.
So, the consistent view has been to balance development with the ecology. And the notification stated that the activities would be regularised only if they were permissible. Impermissible activities, in any case, would have to go. So the effect was that even permissible activity was not permitted to be regularised. First demolish it, then apply for EC and then request it. And ultimately, we also have to balance the economy of the country. ₹20,000 crore is not a small amount for a developing country like India.
So we still hold that our view was correct.
Your order allowing the bursting of green crackers during Diwali drew a lot of criticism due to the rising AQI. How much did public sentiment and religious freedom weigh with the Court while coming to the decision to allow green crackers?
The judgment should not be dictated by what people feel about it. But at the same time, ground realities have to be taken into consideration. People's sentiments have to be taken into consideration. What we did was nothing new; we only followed what was done by the Supreme Court in 2018–19 in those two detailed orders.
The relaxation was only for a short window. We also observed that this would be a test case. After we get the comparative reports, the Court will take a call on that.
The ground realities also have to be taken into consideration. Do we have a mechanism to implement such orders? Because last year, I was also in Delhi, the ban was there. Still, there were crackers. In Lutyens zone also, you used to get sounds of crackers.
Implementation is hard. Therefore, we must have proactive rules. One of the reasons was that we don’t have sufficient machinery. The manpower in the pollution control boards was short. There is a huge vacancy problem. So we should address that. We directed all those posts to be filled by a particular date. This will help enforcement.
You promised more transparency in the Collegium. Yet concerns about opacity, seniority and gender diversity persisted, including for the elevation of Justice Vipul Pancholi, who superseded many other senior judges.
While making appointments, we take various factors into consideration. We also have to take into account the person who is likely to be heading the institution. So for that, the zone of consideration is very limited.
For the time being, there may be more representation from Gujarat but this has happened with Bombay at one point of time. There were five judges. From Delhi, there were four judges.
Has it become a criterion when you are appointing a Supreme Court judge? Do you look at when or if he/she will become a future Chief Justice of India?
That is also one of the factors to be taken into consideration. Because we must know who will head the Indian judiciary. Like now, we have the line of succession up to Justice (Joymalya) Bagchi. So, we also wanted to appoint a person who would head the institution after him.
You made a statement “I regret I could not elevate any woman judge to Supreme Court.” Why did that happen?
Regarding women, there was no consensus on the candidates to be considered. And though we don’t go strictly by what the government says, the government's views also have to be given due consideration. Though we are not bound by that. But the inputs from the Intelligence Bureau, the inputs from the Law and Justice Department also come in. We have to consider everything.
Why was Justice Nagarathna's dissent not considered and not published? Don’t you think the dissent should have been published in the interest of transparency?
I don’t think so. There has been no precedent to publish any dissent.
As a matter of fact, there was an earlier practice of giving reasons for recommending and rejecting names. If you are considering someone for appointment as a High Court judge, he is largely from the Bar and if you give reasons that are adverse to him or her, it becomes difficult for the concerned person. We don't even give an opportunity to hear from such a candidate. If something is published about him, it will prejudicially affect his practice. It is condemning someone unheard. Therefore, we stopped the practice of giving all these details.
We had given consideration to the dissent. The note would not have been sent to the government also. And then the opinions of the other consultee judges were also there.
The consultee judges had an opportunity to see the functioning of Justice Pancholi. I think we had taken the opinion of one of the judges who had seen him functioning as a judge of the Gujarat High Court and of another who had seen him functioning as a judge of the Patna High Court. Apart from that, one of the judges in the Collegium was also Chief Justice of Gujarat.
There is also a larger debate around the system of judicial appointments, which is often seen as a process involving negotiation or give-and-take between the judiciary and the executive, especially given how the executive delays or sits on Collegium recommendations. In that backdrop, what is the role of the head of the Collegium?
During my tenure, we were successful in getting [cleared] many of the names which were pending with the government for years. I don't think that there is any give-and-take situation like that. Only thing is that if there are concerns expressed by the executive, they have to be considered by the Collegium. And I think in most of the cases, we are in a position to impress upon the government that their concerns were not valid. And many of such appointments, which were pending for more than a year or two, have been cleared during my period.
Would you respond on Justice Atul Sreedharan’s transfer controversy? First he was in J&K, then he was sent back to his parent court in MP and then recommended to Chhattisgarh. But then that didn’t go through, and it became Allahabad.
That was purely on administrative grounds, for administrative efficiency. There has to be judicial discipline also.
There has been a spate of recent transfers between different High Courts, especially Delhi. And now in the Delhi High Court, at least the top six or seven judges are all from outside Delhi and only one is from Delhi. Does it not affect the functioning of the Court?
No, that I have said in the beginning. In some High Courts, we do not have judges who are that senior. Like in Delhi, the senior-most judge would have been appointed in 2017–18. And in some High Courts, we have a large number of judges who were appointed in 2013-14 or so.
So the appointments are to balance and to get the experience of those who have worked in other High Courts, to strengthen the High Courts where there are no senior judges. That was the only purpose.
Like in Bombay, so many judges were appointed. They were stagnating there. Allahabad also. Therefore, we thought that in order to take advantage of their experience, we would give it to the High Court where no senior judges are available. And of course, some transfers were made on other grounds as well. Those were made after due verification from the concerned various High Courts and other inputs.
There was also criticism regarding your nephew’s recommendation. In one of the conversations, Justice Oka mentioned that you should have recommended another senior judge to take your place on the Collegium. How did the process unfold?
What purpose would it serve? I had recused myself. Two judges unanimously recommended him. So even if the fourth judge would have been taken on board, even if he had opposed, what would have been the result? Firstly, he was not my direct nephew. He is distantly related to me. Apart from that, I personally hold that merely because the candidate is a judge’s relative, when there is merit, then what is [the problem]? Being born in a family of more lawyers or judges can’t be to their disadvantage. That can’t be a disqualification. The only thing is that when we consider, we should consider their candidature with a more stringent requirement of qualification. So if others have 50 marks, they should have at least 55 to 60.
And all 14 names were unanimously recommended by the Collegium of the Bombay High Court. Out of these 14, one was my chamber junior and another candidate was my senior's son in whose chamber I worked from 1985-87. This candidate is now 40 and so this boy must have been hardly 4-5 years old when I was working in that chamber. So is it not too far to say that I should have recused even in his case.
And in terms of interactions, only the two other senior judges in the Collegium interacted with the candidates.
The Vishnu idol remark, the shoe incident and the reaction that followed showed how sensitive the environment is. What did those weeks teach you about how judges should speak in religiously charged matters?
Firstly, I did not speak anything I think which would have hurt anybody's sentiments. But as I said earlier, social media blows things out of proportion. Sometimes, you get to listen to what you have not really said. But then my conscience was clear. I had never said anything to hurt anybody's sentiment. What I said was in the context of it being a site designated as a protected monument. And, therefore, if anything has to be done, one has to approach the accredited department. We can't go into the expert's matters, like I also said in the waqf matter.
After this shoe-throwing incident, a couple of other judges were similarly targeted. Do you think the judiciary should have taken this attack more seriously?
I did what I felt was right at that point of time. I thought that it was not necessary to give out-of-proportion importance to such a trivial subject.
In the Presidential reference on Governors, you held that the Constitution does not provide for timelines. But when Governors openly flout constitutional conventions by sitting on bills indefinitely, shouldn't the Supreme Court, as the vanguard of the Constitution, rise up to protect it?
We have clearly done that only. I have clearly stated that in the Constitution, no such timelines are provided. Because we can’t put something in the Constitution which is not there by an interpretive process.
But at the same time, we have said that though no timeline is provided, the Governor is expected to act within a reasonable period. As to what will be a reasonable period would depend on the facts of each case. In some cases, even a period of 15 days or one month would be a reasonable period. In certain cases, suppose there are situations like internal Emergency or external Emergency, a period of three months also may not be a reasonable period.
So every time they have to come back to court?
By a judicial verdict, the Court can’t say that in every case we have to decide it. And we have to reserve the right of judicial review. So, if in a case the court finds that the Governor has been sitting endlessly over a bill, without any justification, the court can always direct the Governor to decide it within a particular period.
PS: But another Bench led by you had read into Article 22 a timeline of 2 hours for supply of grounds of arrest, though the Constitution is silent on this.
It’s an issue of liberty of citizens. We have held that the grounds of arrest are necessary to be given so as to enable him (accused) to say before the magistrate as to why his demand of custody is not necessary.
So we are again trying to balance. In that earlier view, it was that if the grounds of arrest are not given, the arrest will be illegal. But take a situation where a broad daylight murder is taking place. Somebody shoots at a person in the presence of police officers who are present there. Should he first take out the paper, write on the paper the grounds of arrest and communicate them to him?
These are the ground realities, ground difficulties which we noticed. Therefore, we said that in such a case, immediately supplying the grounds of arrest may not be necessary. Then, in order to protect his rights, those grounds must be communicated to him at least two hours before his production before the magistrate.
This is only in order to enable him to argue his case, or enable his lawyer to argue before the court as to why his further custody or remand is not necessary.
Your two recent Constitution Bench judgments do not mention any author. Why is that?
We decided to follow the Ayodhya pattern. These are two very important issues. We thought that the Court should speak in one voice. No other reason.
In both the judgments, there has been complete agreement. There is no dissent. Had there been dissent, then of course there would have been a dissenting judgment.
What are your post-retirement plans?
For the present, I have not taken anything. One thing is very clear: I am not going to accept any assignment. That’s it. I would like to spend some time with the tribals in Amravati. I will certainly be doing some work; I can’t remain idle. But of course, opinions and consultations I will be doing.
Two of Justice Pardiwala’s judgments have been overruled. One is the matter on the stray dogs and the other is the Presidential reference. How do judges feel when that happens?
Justice Rohinton Nariman has written a book called Voice of Dissent, how they are becoming a majority. The law is evolving and growing. It can’t be static. Even the Constitution is an organic document. We have seen more than 100 amendments over the last 75 years. So if a view is not correct, if it is being overruled, nothing wrong in that. As a High Court judge, I have held my two reported judgments to be very inferior. So if a person is wrong, nothing wrong in admitting the wrong, or the other judges correcting it in a larger sense.