Courts face pushback from majority governments, but cannot play role of opposition: Justice Sanjay Kishan Kaul [Part 1]

After a tenure of over six years as a judge of the Supreme Court, Justice Sanjay Kishan Kaul demitted office earlier this week..Justice Kaul was a part of many important judgments passed by the apex court this year, including the Article 370 verdict, the same-sex marriage case and the case in which the Court took a relook at the Prevention of Money Laundering Act..[Watch the video interview].In this interview with Bar & Bench's Debayan Roy, Justice Kaul opines that it is not the Court’s job to support or oppose the government, while admitting that courts face a stronger pushback from majoritarian regimes.He also opens up about the recent controversy surrounding the listing of cases at the Supreme Court and the Chief Justice of India's master of roster powers. "There is a system but I think we have to trust the Chief Justice," he says..Below are edited excerpts of the interview..Debayan Roy (DR): Three of your classmates from Campus Law Centre ended up becoming Supreme Court judges like yourself. Did any of you see that happening over thirty years later?.Justice Sanjay Kishan Kaul: The Chief Justice of India [DY Chandrachud] came from a judicial background; I did not come from a judicial background in that sense. I did not even think I was going to go into law till I was convinced to think of it as an option by Justice [BN] Kirpal (former CJI). Hrishikesh (Justice Hrishikesh Roy) wanted to practice, Justice Bhat (Justice Ravindra S Bhat) also wanted to practice, but where we will all be was very difficult to imagine in those days. You did not look that far actually.To me, once I joined the bar, it was an option. It came to me at the right time, just after my designation. I had spent a year after becoming a senior, I was offered it at a good stage. Offered and persuaded in the right way, so I joined..DR: What were those days at the Campus Law Centre like?.Justice Kaul: I was very particular about attending classes. I thought it made your task much simpler because we used to have an internal system of assessment.We had a number of people who joined law. Parag Tripathi [Senior Advocate], Dhananjay, Hrishikesh, Ravindra Bhat - we were all students who believed in studying and knew that we had not just come there to pass time..I felt that regular classes helped in absorbing what the teacher tried to teach, and since it was more of an internal sort of examination, it helped us understand the expectations from us. I was quite active in other things, so I continued my theatre which was unusual in law, as we did not have any theatre society. I chose the plays, I directed and acted in the plays; I did makeup, everything (smiles). And a lot of us did it together, so it was a very satisfying experiment. It was something which was my hobby right from school to college. I played squash at that time, I was fitter. I was the college captain. I got involved in the local political setup of the Law Faculty, not very successfully. I realised it was not meant for me, because it required a different thought process to it. I used to stay near the University, so I was not bound by goings on…And a lot of my friends were staying in the hostels, so I had the advantage of spending time with them. Those were not the days when TV and other media existed. So the real social interaction was the time spent with classmates and peers. And that is something I did right through college life and law. I have very good friends from my residence and law college, the hostel people..DR: Tell us about your early days at the Bar. Which lawyers had the most impact on you?.Justice Kaul: I started working with a law firm - Khaitan’s, for about a year, under the tutelage of Mr Patra. He was extremely precise and to the point. He taught me how to ensure a draft does not go here and there.I am a left hander and a slow writer, so right through college and school education, I knew that if I have to complete a paper, I must do it and learn to express myself more briefly. So I have never used an extra sheet in my life, and my answers even in law would never cross five pages..I joined the chambers of Mr Arun Kumar, who later became a judge of both the High Court and the Supreme Court. I worked for four years with him, it was a great experience to my mind. He gave me a lot of opportunities from day one. He had a large volume of work, so a junior had to attend his cases at times. I used to appear from the very beginning, though in smaller matters. And I also believe judges also give a bit of indulgence when you are comparatively new in the profession. I always want the juniors to continue to take such opportunities when it is presented to them, because I benefited. Later, he (Kumar) would ask me where I needed to appear, so it was a great exposure. You learn to handle a number of matters from a very young age, which held me in very good stead when I went on my own.The senior always remained a senior to us, and we would always go to him. The 80s were not the times when people were possessive about their briefs so much. If you needed help from a senior, you could go there and ask him to solve your problem in the most cooperative sense. The Delhi High Court became my home. You are working there till 8:30 - 9 (PM), and you start in the morning, so most of the time is spend there..DR: It has been 22 years for you as a judge of the High Courts of Delhi, Madras, Punjab & Haryana, and finally the Supreme Court. Which place do you hold closest to your heart?.Justice Kaul: So Delhi is my parent court. But I have great love and affection for Punjab, the fourteen months I spent. It is a very affectionate [place], both the Bar and Bench there. I did not have a problem, or a strike. The Bar used to come and discuss. I made it clear that if I could do something I would; if not, I could tell them on their face. At the Delhi High Court, I was involved in the administrative setup since inception. The senior judges felt I should be brought on board specially for infrastructure projects, since I had a long tenure. So early on in my tenure, I became a part of such committees. That is something I followed in Chandigarh also.My movement to Chandigarh was not expected at that time. I was told that I would be there for sometime, because there were representatives from Delhi at the Supreme Court already. Which was fine by me, because I was about 54 and-a-half when I became Chief Justice (of the Punjab and Haryana High Court). The move to Chennai occurred suddenly, not palatably. I had two daughters yet to be married or settled, so I did not want to travel that far. But when I came there, it was a totally different kind of challenge..The move to Chennai occurred suddenly, not palatably. I had two daughters yet to be married or settled, so I did not want to travel that far..I think things had gone wrong in Chennai for a long time, When I tried to operate with the same parameters in Chennai as in Delhi and Punjab, it did not work. Therefore, I had to be tough at times, to deal with new scenarios.I cannot think of a strike where a lawyers’ procession is going through the corridors and trying to enter court; it was totally alien to me. It first occurred when Indian seamen were being taken into custody in Sri Lanka. It was not my jurisdiction. It was a sensitive issue, so we tried to help. When they came to my court, I cautioned them and requested them to move. And they shut the door and left. But it was a awakening incident for me, that can such a thing happen in court. And it kept escalating, because a culture of strike had taken over there..And I was particular about it. In Delhi, I was treasurer of the Bar for two terms, and I saw the futility of two of the longest strikes. One was of a different character, because it was meant for judge - Justice TPS Chawla was not being confirmed as Chief Justice for 25 days. We were led by Justice Y Sabharwal. Ultimately, negotiations took place and he was confirmed.The second time it escalated (for) two-and-a-half months. We young lawyers were without work, but for the patronage by senior members over lunch. So strikes are like a tiger for the younger members, it can eat you up. We are in a sense daily wagers, so I cannot understand how a lawyer cannot work..Chennai was one of the most difficult challenges. No single person could make an impact, though I tried. The judges there gave me a carte blanche to bring discipline, and the Bar also wanted to address this as they were not happy. I said it was none of their business which judge had the bail roster.After great effort, they got a bench at Madurai...We can assume concurrent jurisdiction and run the court here from Chennai. So they stopped. The most satisfying part of my tenure was (ultimately) Chennai..DR: The Chennai Bar fondly remembers your stint as Chief Justice of the Madras High Court. What were your takeaways from this "punishment posting"?.Justice Kaul: I did not consider it a punishment. I knew it would have problems. In their perspective, they needed someone with a strong hand to be in Chennai; so they zeroed down on me. The disturbance from Chandigarh to Chennai came suddenly, but it was satisfying, and for someone who went reluctantly, I fell in love with it. I consider all three places my home. .DR: Did you learn Tamil?.Justice Kaul: Not really. But I knew the importance of language there. So I learnt enough, and got coached to start and end something in Tamil. But beyond that, I could not, because of administrative work that kept me occupied throughout, day and night..DR: Do you think the Supreme Court should function strictly as a constitutional court? If yes, how do you envision the setup?.Justice Kaul: It ceased to be a constitutional court long time back, really. Anything and everything comes here. The question is - how much should come? It is the final court, yes, but it should have its own contours. Even sitting in High Courts I would say, if I cite any jurisdiction, the manner of dispensation of justice and the procedure is different. I used to call it the maryada of jurisdiction, and we must adhere to it, otherwise it will go here and there. .The Supreme Court ceased to be a constitutional court long time back. Anything and everything comes here. The question is - how much should come?Justice Sanjay Kishan Kaul.At the Supreme Court, what has happened over a period of time is that we have entertained anything and everything because it is the last court. I strongly believe that we must analyse as to how many tiers of scrutiny we will give a man. For say, revenue matters, there are six tiers of scrutiny. For tenancy, three. Two independent judicial scrutinies I believe are enough, unless it is a serious or constitutional issue involved, or an interpretative issue arises. If we start entertaining everything we perceive as errors, then it is a problem. We cannot sit as High Court judges in the Supreme Court. My view is that I may have taken a different view in the High Court, but that is not enough reason to interfere. So that is the difference in jurisdiction. I believe that if we informally agree to a norm in the Supreme Court rather than on an individual basis, that will help. The reason is we are not one single court that operates in unison. Every bench is the Supreme Court, and every bench is bound to have a different perception as to how legal work has to be carried out. Some discretion in that scenario would help. So I personally followed a practice, and lawyers knew. In a civil case, if there were three concurrent findings, then I do not touch it. If there are two appellate courts with thee same finding, I will not touch it. If a concurrent finding is reversed, then I will certainly look into it. If two forums are routinely finding so, why should we touch it?.There was discussion that are we making this (Supreme Court) into a bail court. We should. It is an issue of freedom of people.Justice Sanjay Kishan Kaul.The exception to this was bail. There was discussion that are we making this into a bail court. We should. It is an issue of freedom of people. And somewhere, the bail jurisprudence had taken a different turn from bail being the rule. So if you see, across the benches of the Supreme Court, almost one third bail matters are called for interference, including anticipatory bails. Which is a reflection of some sort of a problem, where the highest court is required to interfere in a case of bail. In most countries, I would not think of bail being an issue for the highest court. The result is on miscellaneous days of Mondays and Fridays, what is happening is we are spending two out of five days, which is 40 per cent of our time, dealing with whether a matter needs to be entertained or not. And 80 per cent face dismissal. So that is a thought process that needs a solution someday. There have been discussions of creating another, regional appellate court or benches. I am not too sure that is the solution, because I believe the solution is in how many levels of scrutiny you need. If there is a court above the Supreme Court, 50 per cent of court orders would get interfered with. Because it is another tier, another perspective. I believe two tiers are sufficient..The result is on miscellaneous days of Mondays and Fridays, what is happening is we are spending two out of five days, which is 40 per cent of our time, dealing with whether a matter needs to be entertained or not. And 80 per cent face dismissal. So that is a thought process that needs a solution someday.Justice Sanjay Kishan Kaul.DR: The Supreme Court has been criticised in the recent past for siding with the executive in important matters. Do you agree with this perception?.Justice Kaul: Let me put that question to myself. What is siding with the executive? When the matter comes to us, the government may or may not succeed. If the government does succeed in a couple of matters, does that mean we are supporting the government? I have said it before that it is not our job to support or be against the government, play the role of or criticise the opposition. We should not bring the political domain into court, but we are duty-bound to address the legal domains brought to court. One troublesome aspect has been that the perceptions have been so different in the political spectrum, that often the Supreme Court is being approached on the same issue again and again, which is also creating a problem and pressures in terms of time frames needed to address them..DR: - Circumventing orders by passing ordinances; impinging upon independence of institutions like the Election Commission, the CBI and a host of others; stalling the appointment of judges - these are some of the ways the executive has attempted to undermine constitutional principles in the recent past. Do you think the Court should take a sterner stand against such actions and inactions of a strong, majoritarian government?.Justice Kaul: It is a very wide question. The Constitution envisages democracy, which is the rule of the people reflected through the mandate that they give. I am conscious of the fact that we have a first past the post system. Very few times will a government have a majority of votes. But that is the method we chose. There are other methods in democracy like proportional representation, but this is the constitutional scheme. Here, the Court was envisaged as a check and balance by interpreting law. Now if the people give a mandate to a government, coalition or majority -Mrs Gandhi and Rajiv Gandhi led large majority governments, and the present government has an extremely large mandate - then that mandate cannot be checked or reduced by saying that look, the opposition wants something. They have a right to sit, debate it out. But that the courts should intervene - it is not their job to do so.....it is not the Court’s job to support or oppose the government. It cannot be a replacement for the government....Justice Sanjay Kishan Kaul.So it is not the Court’s job to support or oppose the government. It cannot be a replacement for the government. The agencies are supposed to act independently, but are ultimately a part of the government setup and structure. So to say the government will have no role, it will never occur. Similarly, the role of the courts is a little more. When there is a large majority government, to keep the check and balance. But it cannot play the role of the opposition. There are certain aspects that are in the political domain and space that have to debated.Yet, the responsibility is more. We are faced with a scenario where law is created to fill in a vacuum, and the government brings in a law. The law making power is with them, unless it is unconstitutional. At times, public or the opposition looks to the Court as a method through which it must say, I believe it is the right thing to do so the government must do it. That is not how it works. The government has the mandate, so where the mandate is more, the pushback is more.Maybe in coalition governments, there is greater political balance so the pushback on the judiciary is less. So the judiciary must learn not to push back, but when the space calls for it…Of course it becomes more challenging when there is a large majority government..DR: You were perhaps one of the few judges in the Supreme Court who held the mirror to the executive in the judges appointment case. Do you think you could do justice in the case?.Justice Kaul: The appointment process in our country went in a particular manner in 1950-1990. Then the judiciary in its wisdom, which I think rightly so in the context of that time, came up with the Collegium system. The political system was not happy with it, did not like it because they wanted a greater say. In that sense, the NJAC was unanimously passed, then it came to challenge.One of the intrinsic things in the case for challenge was, it was a six-member committee where a deadlock or blockage could be created. The Court took it upon itself to determine that and quashed it. There were many options I think available at that time, give it a chance. See what changes are required.In hindsight, if the law had been tweaked [with] primacy to the CJI, the 3:3 deadlock would not have occurred. What is important is there would have been a space for discussion with the executive, which space does not exist (today) in a sense, except through process of files coming over, and my concern is...that is delaying the process. Post NJAC, the Collegium has faced many more challenges.Because the political system has not been really willing to accept that they have no say in it, and they keep repeating it...and that has created this ping pong battle which has gone on.But simultaneously my view is, till it (Collegium) is the law, it must be followed. In its letter and spirit. If you do not like it, make another effort to bring a law which is more in conformity, with more of what you and the judiciary expect of it. Build a consensus around it, you know now why it was quashed. But you cannot say I do not like the law so I will not follow it. The law exists, that is the test where my difference of view is. .I feel that today, especially in metropolitan towns, to get somebody who is doing very well to accept judgeship, is a challenge in itself. I have faced this challenge myself. To get young lawyers on the bench. Because I believe it is the judiciary’s duty to endeavour to do so. Now if we put our neck on the block, what is the assurance that it will go through in a time-bound schedule?They do not want their life to go into uncertainty, that is why many withdraw and become reluctant to view it as a career option. That has troubled me. I believe that once the names go, there is a process to be followed. If there is a reservation, send it back.But now what is happening is the names do not come back. Today also, thirteen names are lying where we do not know the fate...Four names are those reiterated but not appointed, so there is a logjam. Why they are not appointing, we don't know. At least I do not know. Three Chief Justices were recommended quite some time back, they are still not appointed. Three (High) Courts are without Chiefs, another five posts have become vacant and the Collegium has not been able to take a call on them (by meeting). I am sure the next Collegium will. So this creates uncertainty, eight courts with vacancies. Some may not have long tenures as Chief Justice...I say this is injustice to the judicial system and the government must seriously look into it. When I was in the case with CJI Bobde and Justice Kant, we had laid down timelines. Then some appointments went through, some did not.Transfers for example, many are still pending. The Attorney [General of India] was coming and some attempts were being made to work it out. I do not think contempt was really the remedy. What are you going to do? You are going to issue a mandamus for an appointment? Ultimately, the President has to sign the warrant, they are advised by the government, it is a constitutional issue. You have the make the government conscious of our decision and make them aware of your views.We do take into consideration the government’s view, at least on paper it is reflected. On the file it comes and we go through the whole rigamarole of the High Court recommending (first)..More than 50 per cent of the names recommended by the High Courts actually fall by the way side by the time the Supreme Court clears names.Justice Sanjay Kishan Kaul.More than 50 per cent of the names recommended by the High Courts actually fall by the way side by the time the Supreme Court clears names. Earlier, I have seen even lower. A lot of segregation takes place before also, therefore the ones which get through, should be appointed. That is my concern..DR: You had expressed surprise in open court when the judges appointment case was taken away from your causelist. Would you like to say more on that episode?.Justice Kaul: I had given a date. It did not come up on that date, it was mentioned before me. And I would have possibly gone on with the hearing of that matter. Unfortunately, my tenure did not make me get a second effective hearing. Somebody has to now take the responsibility (of hearing the case). It did not appear on the date, but then the Chief Justice is master of the roster, where a matter goes and comes. So it was a surprise and I left it at that..DR: Questions have been raised regarding the listing of matters before the Supreme Court and the master of roster powers of the CJI. To set the record straight, does a matter necessarily follow the senior judge on the bench or the the judge whom the case has been assigned to?.Justice Kaul: So, in different kinds of ways, there are a lot of norms in the Supreme Court. If you ask me, I really have not fully appreciated how it works. I am sure the CJI and the Registry knows. It does normally follow a judge, that is a process. That matter followed me because I was the next senior-most after Justice Bobde. Then if you grant leave, there is another procedure, there are listing norms.The principle of master of the roster is well accepted and it is difficult to work otherwise. I have seen it in the High Courts, you have to trust your Chief Justice...the system requires them to do it, and (handle) the listing process. Now what happens is the Supreme Court is the final court and therefore the stakes are high. And we are all human beings and we will have different perspectives at times..The Bar gets concerned because they would want matters to go before a particular judge, based on perceptions of how they handle that kind of litigation. And when that system is disturbed, they feel a little agitated. There is a system, and I think we have to trust the Chief Justice..DR: What is your take on cases being shifted out of the roster of a particular judge without intimating the judge concerned? Do you think such processes for a constitutional post should be followed? What leads to such practices?.Justice Kaul: I think it is difficult to keep telling a judge that the matter will not come to you. It must not work that way, the procedure must be followed. The CJI and the Registry have said that there is a process in place, that has to be followed. I do not know how much of leeway is there in that process, I have not been privy to it, so I cannot say. But that is supposed to be followed, and normally a case will not be taken from a judge and taken somewhere else, de hors the process. That would (have to) be a rare instance for the CJI to exercise such a power.So let us not dwell too much on that issue, everyone is a judge of the Supreme Court and has their perception. In the larger context, where it gets more agitational at the Supreme Court is when there are high stakes involved.