Judge need not always rule against government to prove his independence: CJI BR Gavai

Outgoing Chief Justice of India (CJI) BR Gavai said on Sunday judicial independence is non-negotiable but rejected the notion that a judge has to prove his independence by ruling against the government.

CJI Gavai said decision of a judge in a case must be based strictly on the papers before the court, and it is incorrect to state that the judiciary always has to rule against the government.

During an interaction with journalists at his residence, CJI Gavai also spoke about Justice BV Nagarathna's dissent within the Collegium with regard to the elevation of Justice Vipul Pancholi to the apex court, and that it was not accepted by other Collegium judges.

He said that Collegium system continues to maintain institutional autonomy, while also considering inputs from the Intelligence Bureau and Union Law Ministry.

Pertinently, he said that a separate law would be needed to tackle hate speech.

He also spoke about being the first Buddhist and the second Dalit Chief Justice of India and said his background and upbringing shaped his approach to the Constitution. He said the directive principles and the Constitution’s social and economic vision guided many of his judgments.

Excerpts from the interaction below.

Bar & Bench: As you demit office, what key changes you think are non-negotiable in the higher judiciary if it has to maintain public trust without inviting criticism?

CJI BR Gavai: Independence of judiciary has always been spoken about. So if you want the public to have complete trust in the judiciary, the independence has to be maintained. And I think, though there is a criticism that in the collegium system, judges appoint themselves, I think that helps in maintaining the independence of the judiciary. No doubt, we also take the views of individuals into account. We took into consideration the Intelligence Bureau (IB) reports, the views of the Ministry of Law and Justice. In some quarters, the notion is that unless you decide against the government, you are not an independent judge. That is not correct.

For a judge, you do not decide based on whether it's the government or private individuals. You decide as per the papers before you. But in some quarters, there is a notion that unless you decide everything against the government, you are not an independent judge. It is not a correct approach.

Bar & Bench: You are the first Buddhist and the second Dalit Chief Justice of India. How consciously or sub-consciously has your background shaped the judgments or the judging that you have done in the top court?

CJI Gavai: I said the other day in my farewell speech also, I have been influenced by my upbringing with my father who had the responsibility of the family, the ideas of the Constitution, the social and economic justice, and the importance of directive principles. I have always believed that directive principles and fundamental rights have to be given a proper balance during judicial decision making.

As all of us know, in the case of Maruti, Justice KK Mathew and the two other honourable judges opined that the judges are also 'State' within the meaning of Article 12, and therefore, they also want to do a test of the directive principle as well. I think many of the judgments are guided by these principles

Q. How do you look at all the controversies that emanated owing to judicial transfers in your tenure?

CJI Gavai: We only made transfers when it was needed or guidance of senior judges were needed in that High Court. Some transfers were because of complaints received (against judges) but they were processed only after verification from consultee judges.

Q. Why could you not appoint woman judges to the Supreme Court?

CJI Gavai: It was because there was no consensus among collegium. We considered some but there was no consensus among the members of the collegium.

Q. The Governors case judgment is being critiqued as putting burden on state now to approach court when governors sit on bills?

CJI Gavai: We cannot read something that is not there in the Constitution. We have allowed limited judicial review.

Q. Should the Creamy lawyer judgment be made into a law?

CJI Gavai: Whether to give a legislative effect to our judgment is an executive decision. But I had reasoned if son of a chief secretary can compare with son of an agricultural labourer, then it does is not equal treatment. The affirmative action reservation is to bring equality when the ones who were deprived could not be brought into the folds of equality. We have seen many Scheduled Caste (SC) families have grown up. We have seen how SC families have got reservations generations after generations.

Q. Did you ever face pressure from the executive?

CJI Gavai: I never faced any pressure. Genuinely never.

Q. How do you look at Justice BV Nagarathna's dissent in the collegium? Was there merit in her concerns?

CJI Gavai: No, it was not the first time. If the dissent had any merit, then the other four judges would not have agreed to the final decision.

Q. Was the issue relating to Allahabad High Court Justice SK Yadav taken to a logical end?

CJI Gavai: We tried but it could not happen. Let us see what happens in the new innings.

Q. Is there nepotism in judiciary?

CJI Gavai: Perception is wrong. I don't think not more than 10 or 20 percent are appointed as such. But if they are meritorious, should we discard them? But yes, if they are related to someone in the profession, we apply a little higher standard than the others.

Q. Are there any memorable case where you knew that wrong was done to the victim but you could not help?

CJI Gavai: No never. Many times when law did not permit, we moulded relief and granted relief. Like for example, in the ceremonial bench I had said when judges decide a case, it should not be judgment but an attempt to give justice.

Q. Would you have welcomed the Prime Minister to your home and would it be seen as impacting your independence?

CJI Gavai: No comments.

Q. Your satisfaction during your tenure?

CJI Gavai: One of the things close to my heart was the establishment of the Kolhapur bench of Bombay High Court and that gave me a lot of satisfaction. We also appointed so many judges to Bombay High Court.

Q. What are your views on rising incidents of hate speech and how to deal with it?

CJI Gavai: This is for the govt to take a call. But a law for hate speech is needed.

Q. Will you ever accept the role of a Governor since your father was also a reputed Governor?

CJI Gavai: No never. As per protocol, the post of CJI is higher than that of a Governor.