New Delhi: Outgoing Chief Justice of India BR Gavai acknowledged on Sunday that no woman judge could be elevated to the Supreme Court because of a lack of consensus between members of the Collegium.
At an interaction with media persons on his last day in office, CJI Gavai disagreed with the suggestion that there were not enough meritorious women judges serving in High Courts who were suitable for appointment to the top court.
“That’s not true. Some names were discussed but there was no consensus between the Collegium members. Without a consensus, you cannot recommend anyone,” he said when asked why the Collegium led by him could not improve women’s representation in the apex court.
CJI Gavai explained that for elevating High Court judges to the top court, a five-member collegium holds deliberations, and at least four judges have to agree to a name. “Even if it’s 3:2 in favour of a judge, then also it (candidate’s name) can’t be cleared,” he said, adding some names were under consideration but there was no consensus.
CJI Gavai headed the SC Collegium for close to six months. He had Justices Surya Kant, Vikram Nath, JK Maheshwari and Abhay S Oka as his Collegium members. Following Justice Oka’s retirement in May, Justice BV Nagarathna—who is the sole woman judge in SC—joined the Collegium.
In the last one year, two women judges have retired—Justice Hima Kohli demitted office last September, while Justice Bela Trivedi did so in June this year.
Also Read: 16 women among 91 judges: Gender, caste & minority representation in HC appointments under CJI Gavai
On Justice Nagarathna’s dissent
CJI Gavai also shared his views on Justice Nagarathna’s dissent to Justice Vipul Pancholi’s elevation and brushed aside the concern that the SC Collegium had for the first time cleared a name despite one of its members dissenting.
“It’s not that judges have not been appointed despite lack of consensus in the Collegium. If four judges are on one side, the appointment takes place,” he said, defending the appointment.
Asked if the dissent note had merit, CJI Gavai responded: “If it would have had any merit, the four judges would not have agreed on that name.”
He also dismissed as baseless the perception that nepotism persists in the judiciary. “I don’t think more than 10 or 20 percent of judges appointed may be related to former judges. Also, just because they are related to the judges doesn’t mean they are non-meritorious. If they have merit, should they be denied appointment? Yes, if a name of a former judge’s relative comes for consideration, we apply stringent standards for ensuring that the meritorious persons come.”
Spate of HC transfers
The CJI also defended a spate of transfers of HC judges during his tenure as the head of judiciary. “We felt that some HCs did not have senior judges. Like in a particular HC there were judges of 2017-18 batch quite senior as against other HCs where concentration of judges was a lot. So, the Collegium felt that in the better administration senior judges should be in HCs where they were not available,” he said, accepting that some of the transfers were on complaints related to the judges’ conduct.
Even these transfers were made after seeking views of consultee judges serving in the Supreme Court, who had served in those HCs from where the judges were being transferred.
Justice Gavai defended the collegium system and its latest move to roll back an earlier practice where deliberations of the Collegium on an appointment were made public. The practice to disclose the reasons for appointing someone as a HC judge began when Justice DY Chandrachud headed the Collegium. It was abruptly stopped when CJI Sanjiv Khanna came in.
“Earlier, there was a system of giving details. But then you also have to take into consideration that most of the recommendations are from the Bar. If we give reasons (for not appointing) it would be inflicting a penalty on them without assigning any reason,” he said, suggesting that it can prejudice the practice of lawyers who do not make the cut.
He, however, backed the ongoing interview mechanism that commenced when CJI Khanna headed the Collegium. “We have continued with that system and found that it is a workable situation. We have other inputs also (from the Intelligence Bureau). I think it’s a good system.”
Independence of judiciary
For the outgoing CJI, independence of judiciary is non-negotiable and the collegium system will ensure the same. “For a judge, you do not decide based on whether it’s the government or private individuals. You decide as per the papers before you. But in some quarters, there is a notion that unless you decide everything against the government, you are not an independent judge. It is not a correct approach,” he said.
CJI Gavai spoke at length about two important judgments he delivered during his tenure. First, the one where he advised exclusion of the creamy layer from SC/ST reservation. “It’s for the government and Parliament to take a call. But if equality has to mean real equality, then the benefits of affirmative action should percolate to the really needy persons. In the last 75 years we have seen many SC (Scheduled Caste) families grow. We have seen that the reservation has gone to particular families. First generation has also got the benefit, then the second and also the third. So, are they (families) really needy,” he said.
The second case he touched upon was the judgement delivered to the Presidential Reference on timelines for Governors to act on Bills. “Our constitution rests on separation of powers. Though we have said that the judiciary cannot lay down timelines, but a limited judicial review is always there. There cannot be a strait-jacket formula to tackle non-decision by the Governor. It would depend on the facts and circumstances of each case. In some even a month would be sufficient,” he said.
Reiterating that he would not accept any post-retirement appointment from the government, CJI Gavai declined to comment on the Justice Yashwant Verma issue, noting the matter was now before a Lok Sabha inquiry committee.
(Edited by Gitanjali Das)
Also Read: CJI Gavai: The Ambedkarite judge who listened keenly & wrote simply