Justice Sanjay Kishan Kaul, who retired as Supreme Court judge on December 25, said judges are protected by the Constitution and should be bold. Edited excerpts of the interview on telephone:
The judiciary should, of course, not be viewed as the government’s political Opposition. But has it subtly helped to strengthen the government’s position in choice cases, either by declining to intervene or readily agreeing to adjournments or not taking up the case or taking up certain cases during weekends, etc. Is this a viable apprehension?
There is a political space for the government and the Opposition to debate, whether it be in Parliament or outside. At times when any one government gets strong, the judiciary cannot play the role of the Opposition. The expectation sometimes, I feel, of the Opposition is, the government is getting very headstrong, you control it. That control happens in a political space.
When you are talking about cases — in what manner they should be taken up and what priority should be given — I do believe the judiciary must act with an equal hand. This perception should not gain ground that we are taking up cases to strengthen the government. It is not the judiciary’s job to either strengthen or weaken the government or the Opposition.
Petitions on crucial issues like Article 370, electoral bonds, demonetisation, etc., remained pending in the Supreme Court for long before they were effectively heard. By this time, a lot of water has flown under the bridge. Circumstances have changed. Is the time lapse affecting the way they are decided or is there a thought within the court that crucial issues should be decided in cold blood and not when temperatures are high?
The Article 370 matter had been taken up. It was going on from day to day. But a difference of perception among the arguing lawyers arose whether the case should go before a five-judge Bench or seven-judge Bench. In a sense, substantive hearing was taking place when it was diverted to this issue… Yes, there have been delays in some crucial cases, but ultimately, in the volume of cases filed, which case has to be given priority… this falls within the prerogative of the Chief Justice of India. Once you recognise he is the master of the roster, he is also master of the listing. He has to take a call on what case should be given prominence.
Should the listing system of cases in the Supreme Court be revised. There have been complaints/letters against part-heard cases being shifted from one Bench to another?
A lot of the listing system has been re-examined and considered. I don’t know how much of the blame rests with the Registry in this. Matters are listed with reasonable frequency, but what you are talking about is movement of matters from court to court. These stem from the working of the Supreme Court. The difference between the High Courts and the Supreme Court’s working is the High Courts are managed through a committee of judges more than just singularly the Chief Justice [of the High Court concerned]. The Chief Justice, of course, has primacy. The Supreme Court is a very Registry-centric operation with the Chief Justice of India (CJI) in command. So, here it is really between the CJI and the Registry. The other judges really do not have a role to play in this.
So cases would not be moved or deleted without the CJI knowing?
It cannot happen without it. The Registry reports to the CJI on everything. And the CJI controls everything. Working out how matters have to be listed, where to be listed, which matters should not be listed are really between the CJI and the Registry.
Does the ‘Master of Roster’ concept require a re-look?
This issue has been settled. I don’t think it should be raked up again and again. It is for the CJI to see how best the system can work. Ultimately somebody has to be trusted with the task.
Is the time ripe for a return of the National Judicial Appointments Commission (NJAC)?
In what form it can return is the issue. The judgment [Constitution Bench verdict of 2015] addressed certain concerns with the NJAC. It is my personal view that NJAC could have been tweaked to judicially correct the imbalance instead of quashing it wholesale. But now if the government wants to bring a law taking into concern the reservations expressed in the NJAC judgment, they will have to bring a fresh law. My emphasis is there should be better transparency in the dialogue between the judiciary and the government. I am not saying you must put it in the public domain, but there must be an understanding of how the appointment process should work. The balance has to weigh in favour of the judiciary.
Does the judiciary face a pushback when a majority government is in the saddle?
The problem is how to maintain the balance between the judiciary and the executive. Whenever majority governments have come, there has always been a little push against the judiciary. The role of the judiciary is to act as the check and balance. That is the constitutional scheme.
The pendency in the Supreme Court has crossed over 80,000. Judges are overworked. Is it time to have Regional Benches of the Supreme Court or final appellate courts?
There is reluctance within the Supreme Court to spread out the apex institution in different places which may affect the unitary character of this court. One of the reasons for regional apex court Benches was access to justice. Now with the virtual court system in place, that has ceased to be a problem. Some out-of-the box thinking is necessary, but I do not think appellate courts are the solution to the problem.
Will more judges help?
How many judges will you have in the Supreme Court? Mere increase of strength of judges would not be the solution. Important and contentious cases, say with political ramifications, get taken up. Pendency has increased also because a lot of old matters are still stuck in the system. We have criminal and civil appeals of 2008-2009 vintage. Focus has to come on how many of these appeals survive now. I feel a number of these matters need to be handled with orders rather than judgments. There were matters of the moment. When old civil matters especially come up, I have seen a bunch-disposal of these matters. The older cases will have to get some attention, and not just the cases we perceive as important.
