New Delhi: There is a need for a more robust appointment system for India’s high courts and the Supreme Court, and timelines must be fixed for the judiciary and the Centre to finalise and appoint the successful candidates, according to Justice Deepak Gupta, who demitted office as a Supreme Court judge Thursday.
Justice Gupta had a Supreme Court tenure of a little over three years, and was part of the special bench that ordered a slew of measures to curb pollution levels in Delhi and NCR.
Justice Gupta became the first SC judge to receive a virtual farewell amid the coronavirus lockdown that has forced the top court to function online.
In an interview to ThePrint, he said the judiciary needs to adopt and harness technology to improve the justice delivery system, and supported the live-streaming of hearings to counter the charge of lack of transparency in court proceedings.
Dissent and sedition in a democracy
BS: You have been vocal about your views on the law of sedition. Can you elaborate the role of dissent in a democratic set-up, especially in the Indian context where freedom of speech and expression is not absolute? Do you think our judges, especially at the subordinate judiciary level, are trained and experienced enough to adjudicate such cases, which in recent times have become more politically motivated?
DG: I have consistently held the view that dissent is one of the most important aspects of democracy. Differing with somebody else, including the government or other institutions exercising power, including the judiciary, is permissible under our laws. As long as a person does not incite violence or work against the sovereignty or integrity of the country or other exceptions laid down in Article 19, any citizen has a right to criticise and differ from what others say.
In my opinion, the district judiciary, especially in the recent past, has been issuing notices on complaints filed against individuals for committing offences of sedition etc., without verifying whether, even on the averments made in the complaints, any case is made out. In case the law laid down in the Kedar Nath Singh vs State of Bihar case and in the Balwant Singh and others vs State of Punjab case is strictly followed, in a large number of these cases, notices need not have been issued.
The district judiciary needs to be trained in this regard, and the high courts and their judicial academies need to ensure that this is done. Shockingly, even after the provisions of Section 66A of the Information Technology Act have been declared unconstitutional by the Supreme Court in the Shreya Singhal vs Union of India case, notices under the said section continued to be issued. This results in needless litigation and unnecessary harassment of the citizen.
BS: A non-transparent process is followed to appoint judges for which the judiciary has often come under criticism. What are your views on this? Do you think the National Judicial Appointments Commission should be implemented to bring about a balance in the procedure, or is there an alternative to make the appointment system more public?
DG: In my view, the process for appointment of judges to the high courts and the Supreme Court needs to be strengthened. At present, the collegium system is the law of the land, and is being followed. This system can become robust only if timelines are laid down, which must be followed both by the collegiums of the high courts and the Supreme Court, as well as the government.
In my view, the high court, in case of a vacancy arising therein, should start the process of identifying the person to be appointed at least six months before the vacancy is to arise, and within one month, should send its recommendations to all concerned. Along with the recommendations, the collegium should send a list of cases argued by the counsel and the importance thereof.
The law ministry, within one month thereafter, should get the antecedents of the candidates verified and send its report to the Supreme Court. As soon as the recommendations are received by the Supreme Court, it should assess the quality of the assistance rendered by the counsel in the cases referred to by the high court. The Supreme Court collegium can also take help from the members of the bar, and judges outside the collegium of the high court concerned.
This material can be collected even while the antecedents are being verified and awaiting the recommendation from the government. On receipt of the inputs of the government, the Supreme Court should, within one month, make its recommendation to the government, and the government within one month thereafter, must take a decision in the matter.
This entire process will take four months, and given a leeway in exceptional cases, the person to be appointed can take oath from the date the vacancy occurs.
At the level of both the Supreme Court and the high courts, there should be a secretariat attached to the collegium, where the help of retired judges can be taken to assess the judgments and the working qualities of the recommendees. A complete record should be kept. In my view, having a well-staffed and competent secretariat is the need of the hour.
The NJAC has been declared unconstitutional, so obviously, it cannot be implemented, at least at this stage. My personal view is that any system of appointment is only as good as the people in it. If the interest of the institution is kept foremost in mind, then there can be no difficulty in making the right kind of decisions.
The final word in the matter of appointments of judges should lie with the judiciary. However, personally, I am not against taking inputs from other members of society, whether informally or formally.
If an alternative to the NJAC is ever sought to be established, my suggestion would be that the eminent persons who may form part of such appointment committee should have some communication, direct or indirect, with the judiciary. They could be former judges of the Supreme Court or the high court, they could be eminent counsel, they could also be persons who have held top jobs in the executive and are, therefore, well-versed with the working of the judiciary. The final word should always lie with the chief justice and the judges.
I am also of the view that the recommendations once sent by the court should not be vetoed by the government normally, and if the recommendation is reiterated by the committee/collegium, then the government should be bound to make the appointment.
Technology in the judiciary
BS: The ongoing Covid-19 pandemic has exposed judiciary’s inability to adopt technology as part of the justice delivery system. It has come across as an institution reluctant to open up and, therefore, the verdict to introduce live proceedings of court hearings appears to have been pushed to cold storage.
Hearings are taking place but very little in number and the crisis will surely add up to the numbers in pendency figures. How do you view this problem and what is the right course for future?
JDG: I have always felt that we need to harness and adopt technology to improve the justice delivery system. The Covid-19 pandemic has actually brought on this need suddenly. We were not ready with the technology.
The Supreme Court of India has taken steps in the matter. Initially, there were a lot of glitches. Now, there are much fewer ones, but the system needs great improvement. This cannot be done overnight, and I do not think it would be fair to criticise the Supreme Court in this regard. Nobody expected this pandemic; none was prepared for it, including the Supreme Court. In fact, in my view, the Supreme Court has responded quite well in the given circumstances. But, now we need to ensure that the system is improved, which will require a massive increase in the bandwidth; a lot of new hardware and new software needs to be developed to suit the needs.
The legal fraternity, both lawyers and judges, are reluctant to change. This attitude needs to change, and both the bar and the bench must realise that post-Covid, social distancing is going to be the norm. In any case, overcrowding of courts must be reduced to the minimum, and therefore, we need to harness and use technology to reduce physical presence of parties and counsel in the court to the minimum.
It is true that very few hearings are taking place. But conversely, very few filings are also taking place, and very few decisions are being delivered by the trial courts, high courts or the superior courts. Obviously, this will have a cascading effect in the future, which we will have to deal with.
As far as live-streaming of court proceedings is concerned, I am strongly of the view that proceedings in all courts should be live-streamed, and if live-streaming of cases conducted through videoconferencing is done, then the charge of lack of transparency will become baseless.
In future, we must harness technology and identify cases which can be done through videoconferencing. To give examples, in the trial courts, all pre-evidence stages in civil matters and all pre-charge proceedings in criminal and remand matters can be done through videoconferencing, subject to certain exceptions. At the Supreme Court level, transfer petitions, bail applications and, in my view, even miscellaneous matters listed on Mondays and Fridays can easily be handled through videoconferencing.
Multiple opinions within Supreme Court
BS: The Supreme Court is usually not seen as an institution with one voice. There are several benches, giving several opinions, sometimes personal views too. This causes confusion among the courts below. How can this problem be resolved?
JDG: The Indian Supreme Court does not sit en-banc (the entire bench together), and therefore, there are bound to be different opinions. When there are 34 judges, on any Monday or Friday, there could be as many as 17 benches having different views. Therefore, it is but natural that it may seem that there are different voices in the Supreme Court.
In my view, there needs to be some sort of policy of the court to decide which matters should be entertained in the highest court and which should not, and broad guidelines can be laid down in a full court meeting. We must remember that the Supreme Court is not meant to correct the mistakes of the high court. The Supreme Court should normally only interfere when substantial questions of law are involved. In the absence of a court policy, all judges take their individual views, which leads to some confusion.
As judges we also must be self-disciplined, and merely disagreeing with the views expressed by an earlier bench should not itself be a ground to take a different view. Personal views of judges have no role in deciding matters, and as I have said earlier, a judge must identify his or her biases and thereafter decide the matter strictly in accordance with the law.