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Oza spoke to Bar & Bench’s Murali Krishnan on what he perceives to be arm-twisting of the judiciary by the Executive. He also called upon the Bar Associations across the country to throw their weight behind Senior Advocate Dushyant Dave, who had recently made some scathing allegations against listing of certain cases in Supreme Court.
Below are the edited excerpts from the conversation.
Murali Krishnan: News is doing rounds that the collegium has gone cold on the transfer of Justice MR Shah?
Yatin Oza: I will not comment on it because I have given an undertaking to the Supreme Court that I will not discuss this issue.
MK: What about the recent controversies surrounding the Collegium?
Yatin Oza: There are several people including me, who strongly believe that there should be a collegium system to select judges. And I believe that the Chief Justice of India is the best person to judge as to who is best fit to be a judge of the Supreme Court.
However, when the Collegium conducts itself like a government, it is painful. When a Prime Minister sits to form his cabinet, he has to keep in mind different things like giving representation to different States, religions, castes etc. But why is the Supreme Court Collegium doing all that? Why does the Collegium bring in the principle that every State has to have representation and every religion has to have representation in the Supreme Court?
MK: Are you talking about the elevation of Justice Nazeer superseding other Senior judges?
YO: At one point of time, there were four judges from Muslim community in Supreme Court – Justices Altamas Kabir, Aftab Alam, Kalifulla and MY Eqbal. There can be ten at a time too – it is perfectly fine. What I am trying to say, however, is that when someone who does not stand a chance as far as seniority is considered, has come straight to the Supreme Court based on his religion alone, then that is sad.
I have the highest respect for Justice Nazeer. Yes, one can claim that religion was not the reason for his appointment but people are not fools that they will not understand.
Likewise, why is it that there should be representation from different States? If that be the case, why is there no judge from Gujarat? Take the case of Justice Dilip Bhosale and Justice Shiavax Vazifdar from Bombay. They are two senior judges in the country today. Nobody can doubt their merits too. Justice Bhosale’s legal acumen and sharpness of mind to grasp the facts and read between lines is second to none. I have appeared before Justice Vazifdar and I lost my case, but I found great legal acumen in him.
But, they will never see Supreme Court only because there are already three judges from Bombay High Court in Supreme Court. But what is wrong in having more than three?
If seniority and merit requires a particular judge to be appointed, but he is not appointed only because there are three other judges from his High Court, it does not make any sense.
MK: Do you think the Collegium is compromising its independence in order to get the executive to clear its appointments so that there is no logjam?
YO: The Supreme Court Collegium says that deadlock cannot be continued and it will clear the deadlock or logjam. Very well!
But the person who creates the deadlock, who is not supposed to create such deadlock under the Constitution, stands to claim the benefit. The Supreme Court as a Constitutional body, which has a right to make recommendations, finds itself helpless on the ground that it wants to clear the deadlock.
I read somewhere about why Justice KM Joseph of the Uttarakhand High Court was not included in the recent list of Judges to be promoted to the Supreme Court.
Likewise, Justice Jayant Patel was transferred to Karnataka as ‘number four’ judge? What was his fault – that he passed a judgement directing CBI investigation into the ‘quadruple murder’.
What about Gopal Subramanium. What was his fault? It’s a well-known fact that he appeared against Amit Shah? Just because he has appeared against Amit Shah, is he going to be a bad judge?
Let me tell you that I have not met or communicated with Justice Jayant Patel after he left Gujarat. And if Justice KM Joseph comes before me, I may not even be able to recognise him.
Today a loud and clear message has gone – that you show faith and allegiance to the Constitution, and you go the way Justice KM Joseph and Justice Jayant Patel have gone. All these makes your blood boil.
MK: Why have you taken up this fight?
YO: Sometime back, I had a twin fracture on my leg. Every judge allowed me to argue sitting on a wheel-chair except Justice Jayant Patel, who refused. But should my opinion be guided by such considerations? No.
Justice MR Shah’s father was my father’s junior for fourteen long years from 1960 to ’74. If you ask anybody in Gujarat High Court about who inherited Mr. NR Oza’s practice, everybody would say without hesitation that MR. RN Shah, Justice MR Shah’s father, did.
My father passed away around 12 years ago. Still on every Diwali, family of Justice MR Shah comes and sees my mother. For every small function at his house or my house, they invite each other.
Why should I fight with my personal relations. I am fighting only and only because Collegium’s decision is being treated as waste paper. I am fighting to uphold the dignity and the finality of the Collegium.
I am not saying that I want Justice MR Shah transferred. What I am saying is that whether he should be transferred or not has to be the Collegium’s decision. Once Collegium has taken that decision, only the Collegium can stall it except, of course, the Central government having the right to send it back once. Otherwise, only the Collegium can stall the file, not the Central government.
MK: Similar submissions were made by you in Supreme Court in the Anil Kabotra case. Do you think the fate of that case will change?
YO: You can see for yourself what has happened in that matter. A detailed order was passed by the Bench presided by Justice TS Thakur seeking a status report. Since Mathews Nedumpara created a ruckus later, the matter was shunted down for six or eight weeks. The Supreme Court does not want to show respect to its own orders.
I have utmost respect for Chief Justice Khehar. He is the judge who struck down NJAC, and gave the verdict in Arunachal case. He is a very bold and independent judge. However, I personally feel, he and his Collegium must have felt helplessness, but that helplessness should not have resulted in doing this even at the cost of logjam or deadlock or stalemate.
If there is a logjam, let there be a logjam. Let the people of the country know that a person is responsible for stalling the functions of a body formed to discharge Constitutional functions.
However, if the Collegium accedes and says that if does not want a logjam and it accepts the government’s dictum, that day is not far away when the government will say – “you appoint two of ours, else we will stall other appointments”.
This barter system cannot be permitted. In fact this is not even barter, it is bullying.
MK: What is the general mood at the Bar in Gujarat?
YO: I was in Allahabad a few days ago. The President and few Senior members of a Bar Association there had the same impression, which I have. Only that they lack the guts to speak up.
Senior Advocate Dushyant Dave has also spoken up and I salute Dushyant Dave for his courage, boldness and above all truthfulness. With controversy looming large against CJI Khehar, it would have been better, if CJI Khehar would have stepped down rather than causing serious harm and damage to the institution.
I am not at all concerned about transfer proposals being sent back or accepted. I am more concerned about honest judges being penalised at the instance of Union Government through the Collegium. It is high time that all Bar Associations stand up in support of Dushyant Dave irrespective of personal differences with him. If lawyers do not stand up now, their dignity and reputation will also come under executive onslaught some day.
Before speaking to you, I read and re-read and spoke to several people on the effects of speaking against the Collegium.
Contempt of court lies if one says something against the judges regarding the discharge of their judicial duty. Collegium is not a court, so contempt of court proceedings cannot lie for criticising the Collegium.
However, if they want to issue contempt notice against me for this interview, I will agree for a conviction without entering into any defence. But let me also say that, if they hold the Collegium to be a Court, then its proceedings will have to be open to public.
MK: Similar give and take seems to be happening with the Memorandum of Procedure. So do you think the government is arm twisting the judiciary?
YO: What else would it be? The opposition I have for the gentleman residing at 7, Race Course is that he is trying to demolish the autonomy of four organisations – Supreme Court, CAG, Election Commission and RBI. If the government succeeds to do the same with the Supreme Court, then the others are softer targets.
I hope, trust and pray that judges throughout the country do not take a clue from this and start thinking, “Let us be in good books of the government so that the government will protect us, and we will be saved”. I sincerely hope that doesn’t happen.
This is my last interview on this subject. Hereafter, I will not give any interview to anybody on matters touching courts and its functioning.
Murali Krishnan is Associate Editor at Bar & Bench. He tweets at legaljournalist.