"This 20-day Chief Justice is just for the purpose of having a ‘former chief justice’ tag attached and beyond that there is no good - Santosh Hegde J
"This 20-day Chief Justice is just for the purpose of having a ‘former chief justice’ tag attached and beyond that there is no good - Santosh Hegde J

Will the selections of the Judicial Appointments Commission be perfect? – In Conversation with Justice Santosh Hegde

Pallavi Saluja

Only the fourth direct elevation to the Supreme Court in five decades, Justice Santosh Hegde was the Advocate General of Karnataka, an Additional Solicitor General as well as a Solicitor General. Post-retirement, he was appointed the Lokayukta for Karnatka.

In this interview with Bar & Bench, he talks about his initial years, his time as the law officer, decision to join the Bench, the collegium system and the recent revelations made by Justice Katju.

“Law was a part-time profession”

Son of Supreme Court Judge KS Hegde, Justice Santosh Hegde says that initially his professional ambitions lay elsewhere. Growing up, he wanted to be a professional hockey player, and even went on to represent Mysore University and Mysore state. For him,

“Law was a part time profession and that suited my desire to pursue hockey. I took up law for that purpose, hoping someday that either the Tatas or ITC will give me a job with them.”

“My father was not very keen. So, when I finished law, he asked me to give the profession a try.”  I thought, “Let me give it a try.” The rest, as the proverb goes, is history.

He enrolled as an advocate in January 1966 and joined a senior lawyer in the Karnataka High Court. Three years later; Hegde’s senior became a High Court judge. This meant that Hegde “inherited” his senior’s office, an event he describes as the “stepping-stone” in the legal profession.

Ten years later, there would be another such stepping-stone.

“In 1976, Emergency was declared, and I was sitting in court when the Chief Justice got a letter, which he opened and read, “Few members of Parliament were detained in Karnataka”. They had written a letter to the Chief Justice in the form of a Habeas Corpus petition, seeking the court’s examination of the detention. So, the Chief Justice looked at me and said “Mr. Hegde, why don’t you appear as an amicus?” So, I said “Ok.”

Allowed to visit the detainees, Hegde spent the next eighteen months in constant interactions with the parliamentarians. Who were these ? None other than, Atal Bihari Vajpayee, LK Advani and SN Mishra. Another detainee was Ramakrishna Hegde, a man who would become Karnataka’s Chief Minister. And it was Ramakrishna Hegde who made him the state’s Advocate General.

“Holding a constitutional post is a matter of pride”

Law Officer

Hegde was a law officer for many years, first as an Advocate General for Karnataka, then as Additional Solicitor General, and finally becoming the Solicitor General for India.

“It was a wonderful experience! You get to handle matters, which otherwise you may not get, professionally. Holding a position of Advocate General, is also a matter of pride.”

“These pressures do not really work”

Mohan Parasaran, who was a law officer in the previous Government, once said that law officers faced a lot of pressure from the government. It is a statement that Hegde does not completely agree with. In fact, one could say that it is a statement that Hegde is deeply critical of.

“You do get some people coming and making recommendation to handle this case or that, help this person in the matter. But, if you have a conscious and if you are not afraid of demitting the office, these pressures do not really work. But if people succumb to it and claim, “I had pressure from this client or authority”, they don’t deserve to hold such post. If you are so amenable to be pressurized, I don’t think you should expect a public office.”

“I was reluctant to join the Bench”

Only the fourth direct elevation to the Supreme Court in five decades, Hegde says that, as was typical of the rest of his life, it was a completely unplanned move. It also involved just a tiny amount of emotional blackmail.

I never aspired to become a judge because it had a lot of social restrictions. Later, the offer came from then CJI to become a judge. So I kept thinking, “Should I or should I not?”

“I was reluctant to join the bench. When this offer came, my widowed mother came to know that I might not accept it. So, she telephoned and told me “If your father were alive, he would be very happy.” My only concern was that my salary was Rs. 50,000. The perks were very good, but [nothing] compared to what I was earning outside. Then I thought we have no children, so I said ok. I have no regrets. Absolutely, no regrets!”

“To complete those 80 files per day, you have to sit till late in the evening through the weekend”

Justice Hegde didn’t find it difficult to adapt himself to the system though the workload was much more than that of a lawyer, however successful a lawyer he may be.

“To be frank, on a Monday we used to handle 80 cases. To complete those 80 files per day, on Friday evening you have to sit till late in the evening, whole of Saturday and whole of Sunday. Lawyers did crib “What is this, you don’t give us chance to argue.” But the difficulty is if we allow them to argue, they will go on for the whole day. This is the major problem of profession.”

Nonetheless, it was an experience that Hegde clearly derived great satisfaction from.

“I enjoyed being a judge. To be brief, it was altogether a different thing. Even when you read the case, you had to read it in a balanced manner, because there is another party, also seeking justice. I found that I could adopt myself to that, though I had no experience in the judicial side.”

“By waiting, he would have shown some respect to the collegium”

Almost 15 years after Hegde’s elevation, the Supreme Court collegium led by Justice RM Lodha recommended the names of two Senior Advocates Gopal Subramanium and Rohinton Nariman, for elevation to the Bench. However, Subramanium’s name was segregated for reasons that remain unclear, and the accompanying furore eventually led Subramanium to withdraw his consent.

Hegde says that perhaps displaying a little patience would have been a better move.

“I wish Gopal would have waited for a while till the Chief Justice of India came back from Russia to India. I think that, in a way, would have been something that could have solved the problem. Most probably, the collegium would have met again and recommended his name, which even the Government would have had no choice to accept, as the law stands today.

He definitely had reasons to be upset with the Government. But still! As a mature person, a person who would have adorned the Bench, where you require a lot of patience, he should have waited. But, of course, if once the person feels that “No! I don’t want to be there.” it is his choice.”

“Collegium system should stay”

Justice Hegde supports the collegium system and is not in favour of a Judicial Appointments Commission. He says the collegium system should stay, with the process of appointment being made more transparent.

“It should be disclosed to the public that ‘These are the persons we are taking into consideration’. If there is an allegation against them, then we examine that part. And if it is found true, we don’t take them. Transparency is a major check on the people involved in the process of selection. I think that’s the only way out.”

He agrees that there have been mistakes in the past, but says that there is no systemic fault in the collegium system.

“Why do you have a collegium or the Judicial Appointment Commission – to select the best person suitable for the post ? Now, should not the members of that commission have first hand information about the person who would be occupying that post? What information can any prime minister or jurist have about lawyers who are going to be considered for a judge’s post?”

There is more.

 “Do you mean to say that the next lot selected by  the Commission will be perfect? Will there be no fault? Earlier, for nearly for 3 decades the system was that the Chief Justice would recommend a name and ultimately, everything was left to the Executive. Things were not okay then. That’s why the Supreme Court was compelled to judicially explain the powers in the Constitution and they came to the collegium system. I know there have been mistakes but they are all human errors. There is no systemic fault.”

“The principles of Vishaka will apply to judges also”

It is clear that Justice Hegde feels strongly about the recent allegations of sexual harassment against the higher judiciary.

“If these things are not investigated and truth doesn’t come out, it will be extremely difficult. In the three cases, the victims have come out with the allegations long after the incident took place. There may be couple of reasons for the delay like trying to forget it all or at that point of time they didn’t want to make a complaint about it. Whatever it is, there must be a mechanism by which these allegations are seriously considered. For that, I say, you have an outside body. It need not be judicial body at all. The principles of Vishaka will apply to judges also. They cannot say it is not applicable to us.”

Justice Katju – Guardian of the country’s administration?

Justice Katju, who has recently courted much controversy, has been frequently targeting the judiciary with allegations of impropriety, accusing former Chief Justices of shielding corrupt judges.

“I had given a statement wherein I said that the allegation that he came out with the facts belatedly might not matter much. But, some drawbacks in the system have been pointed out by Justice Katju which we should address those shortcomings rather than question Katju “Why are you coming out of the 10-15 years?”

But later on I find out that he is coming out everyday with one statement after another either on Twitter or Facebook or other social media, as if he is the guardian of the administration in the country. Somehow, I don’t appreciate a retired judge coming out that much. At least, I have come out in the media because my work as a Lokayukta was entirely different from my work as a judge. I think Mr Katju should hold on.”

It would have been much nicer if the court itself invite lawyers to become Senior Advocates

Recently, Karnataka High Court had designated about 15 lawyers as senior advocates, which has been challenged by way of two PILs and resulted in much resentment at the Bar. Hegde says that there should be guidelines for designating seniors.

“The rules require that you make an application to the full court saying, ‘I am desirous of being designated in a year.’ I don’t think it’s the right thing to do. You should be recommended by the court to become a senior. But then, unfortunately, that process is there. For example, when I was appointed as Advocate General, I was told that Advocate General should be a designated senior, so I had to apply for that. It would have been much nicer if the court itself invited the AG to become a senior.”

“This 20-day Chief Justice is just for the purpose of having a ‘former chief justice’ tag”

“Fixed tenure is good because of the fact that continuity will give some possibility of making certain changes for better. This 20-day Chief Justice is just for the purpose of having a ‘former chief justice’ tag attached and beyond that there is no good.”

“It’s a tricky one”

The Supreme Court has long established an informal system of regional representation. Although unwritten, it is understood that the Bench will have representatives from each High Court. It is a convention that Hegde has experienced first hand.

“It’s a tricky one. I always thought that, except merit, there should be no other consideration. But we are living in a society where aspirations of the people who claim that “We never had the same facilities like others had and also, how do we come up in life”, are not met. So it (regional representation) has become an accepted philosophy today in the society. That will be there even if the Judicial Appointments Commission is appointed. Take it from me. So might as well make it legitimate or legal.”

365  workdays  

Justice Hegde does not agree with the suggestion of CJI RM Lodha that the courts work 365 days. “I don’t think this is correct at all. 365 days, in shifts and batches, and some judges can take leave and go. The court doesn’t function like that.

The attitude that I alone can deliver justice and no one else can deliver justice should also change. Therefore, the influx of the cases of all type should stop. According to me, the High Court should be made the last appellate court. Like the American Supreme Court, make the Supreme Court a Constitutional Court or where there is conflict of decisions at various high courts to decide those conflicting issues. Don’t entertain matters of routine appeals.”

The “non-cooperation” of the State Government

Following his retirement from the Supreme Court, Hegde was appointed the Lokayukta of Karnatka. Although he describes it was a “wonderful experience”, he also came perilously close to resigning from the post. Justice Hegde says he resigned from the post due to the “non-cooperation” by the State Government in his crusade against corruption. It was only when senior BJP leader, LK Advani stepped in that Hegde changed his mind.

LK Advani telephoned me and said “Look Santosh! You are doing a good job. Why don’t you take back the resignation? I will see whatever your demanded with the Government and we will give it to you”.

“On that basis, I withdrew my resignation, which came under criticism that I am a BJP man. But, at that time, my mining report was almost ready, which was one of the reasons why the BJP Government failed in the state.”

Despite this, Hegde has nothing but praise for the institution that is the Lokayukta.

“I have never worked with an institution that is as holistic as the Karnataka Lokayukta is. It is an institution to oversee good governance including prevention of corruption, nepotism and arbitrariness in administration. Any average person would come to you with their complaints and at least 25 percent of such complaints were rectified and relief given over a telephone call. That’s an institution where I saw an utter, or shall I say total, lack of humanism in many a people who are in power.”

“You all come out as lawyers whereas we came out as law graduates”

The introduction of the five-year course in law, is without any doubt, a development that Hegde is quite taken with.

You all come out as lawyers whereas we came out as law graduates. We became lawyers after working in somebody else’s office whereas you come out as lawyers capable of addressing the court straightaway. Also, there may not be many people who will have gift of gab, they may not be good at arguing but they can become corporate advisors. Lot of scope in this thing too!”

His parting words, as is his character, are simple yet deep with meaning.

“My advice to all youth is to try and understand the meaning of contentment, satisfaction or what we call in vernacular as “tripti”. If you don’t have that, you will never ever be happy in life. That’s the most important thing, and if you can find satisfaction, with how much you legitimately earn, that’s the true satisfaction.”

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