Law and convention will both ensure Justice Gogoi is the next CJI, outgoing CJ’s recommendation is a formality, he says responding to Amit Shah
Eminent jurist and senior advocate Fali Nariman spoke to ThePrint’s Editor-in-Chief and Chairman Shekhar Gupta on NDTV’s weekly show Walk The Talk, about the issues plaguing India’s judiciary.
Nariman said it could have been avoided since the chief justice and the judges need to act as one team. Nariman also talked about his new book, God Save The Honorable Supreme Court.
Here is the detailed transcript, edited for clarity:
SG: What are you trying to say by calling your latest book— God save this honorable Supreme Court?
Nariman: See, I felt very distressed when all these things happen, particularly after that interview to the press and everybody saying all sorts of things. Lawyers taking sides. In my 67 years of practice in the high court and the Supreme Court, I have never come across something so demeaning as this. I felt very sad.
SG: Do you think the judges should not have held the press conference?
Nariman: Of course not, for the simple reason that they should not have held it outside, but within the four walls. There are certain things that can’t be done.
SG: But their views were, they have tried to figure the problem inside the walls but it was not happening there.
Nariman: That makes no difference. If it was not working and if you don’t like it, then you lump it. You either wait till the chief justice retires or you go away, that is all.
You either wait till the chief justice retires or you go away
SG: You resign and go away?
Nariman: Whatever. I will give you an instance which I have stated in my book also. When justice (S.H.) Kapadia became the chief justice, he was there for two years. The day he took over as the chief justice, he stopped any mentioning in any court by any counsel including his own court. Now it is a very important thing for a counsel to mention something. If something is going wrong, I want to mention and put the matter. He said no it can’t be done, go to the office to do it. Everybody complained, judges complained, lawyers complained but still, it went on. It lasted for two years. The moment his successor came in, he restored the position.
Gupta: So these four erred in going public?
Nariman: Of course they did.
SG: They did it out of frustration That you could see?
Nariman: That is their way. We are not concerned with their frustration. We are concerned with the Supreme Court. We are concerned with the institution. If you read the US chief justice John Robert’s latest judgment supporting Donald Trump’s immigration, he meets the question over why does this president make all sorts of tweets every single day and demeans himself. His answer is that we don’t deal with individual presidents in this court, we deal with the office of the president.
You see that is a very important thing. You have to deal with the office of the judge in the Supreme Court. You are somebody, that does not matter when you are an appointed judge of the Supreme Court whether you deserve it or not. You, therefore, have to have a certain ethos, a certain set of principles which are different from everybody else.
SG: So who brought more disrepute to the court? These four judges or…
Nariman: I don’t care, that is a long question, I will not answer that. Nobody want disrepute, I don’t want the court to be disreputed. You see, the important thing is that we must reserve the dignity and the honour of the court not for any other reason. Not for the judges. We have had 240 judges in the past. Who bothers about them and who remembers them?
SG: Hardly four or five?
Nariman: Yes barring them, top people.
SG: Couple of them for not very good reasons.
Nariman: Does not matter. See we are not concerned with all these origins. After 100 years, you can write the history of the Supreme Court but once it is functioning it is the sole and final interpreter of the Constitution. Please remember that. Everybody’s life and liberty depend upon the highest court. Therefore, whether they realise it or don’t realise it, but they must — all the judges are together.
SG: Justice Sikri responding to Shanti Bhushan in his case said that the biggest damage to the court is done if the people below start doubting the courts.
Nariman: You see, I don’t understand how these senior counsels are all not pulled up. When they say please tell me, how did you come to be constituted in this bench — it is ridiculous.
SG: Which is not their business.
Nariman: It is not only not their business but it is the business of the chief justice of every court. So there is no question of asking how are you constituted. If a man today sits in court number six, I will go up to him and ask him for his Warrant of Appointment. Should he carry it in his pocket? It is ridiculous. I am very sorry, the whole thing is wrong.
SG: Is the chief justice right in the way he has run the roster?
Nariman: I don’t know about the roster and all, I am not interested in that. See, of a roster, he is the master.
SG: The chief justice is the master?
Nariman: Yes, he is the master but he must reach out also. Every judge in the court must reach out. That is why I spoke about collegiality. You must have collegiality, otherwise you cannot sit in a whole team. You have some function as a team. You will find from the rules that one judge means nothing. Even under the Arbitration Act, of the one judge appointed as an arbitrator, even his decisions. Even if he says something, it is not binding. You need a team of at least two.
SG: Could the chief justice have handled this better by talking to his colleagues?
Nariman: Of course, he could and vice-versa. That is important. Now, who knows what happened? We don’t know. I don’t know. You don’t know. One can only say this happened or that happened.
SG: One thing that we know happened is that none of the constitution benches had one of these four senior-most judges.
Nariman: No, I am very sorry. If you read my first chapter, the very first chapter will tell you how many judges sat and in which matter. Very important judgments were delivered from the year January 2017 under two other chief justices as well as this chief-justice, right up to date. You see, it matters entirely for the court — who sits where what etc.
SG: Should all judges be treated the same?
Nariman: Yes, of course. The five are important only for one reason — the judgment of justice (J.S.) Verma in the second judges case where he said three which later became five. He said there should be more people than the chief justice and that was in the context of justice (A.N.) Ray not appointing proper judges in Indira Gandhi’s time.
Indira Gandhi started transferring judges despite the fact that they should not be transferred. Do you know why the transfer policy was stopped? Only because of one of the transferred judges who said my health is not good from Bombay and he died in Calcutta. So they said this is a very bad backlash against the political party. So it was not a judge but a politician who stopped it.
SG: Now, one of the four judges is gone — justice Chelameswar. And the other two will also go in the course of time, not too very long a time. How does the chief justice now bring back order in the court?
Nariman: He must bring it. That is his job. That is how it has to be. He is the leader. I did not appoint him a leader, you did not appoint him leader. He became a leader because of the constitutional convention that the senior-most judge should become chief justice. And that senior-most judge convention came only because the first chief justice Harilal Kania died within a few months of him assuming office.
And it was suggested that they should bring justice M.C. Chagla, the then chief justice of Bombay, as the chief justice of India. The four or five judges who were remaining in the Supreme Court said not at all. We cannot have that. In which case, justice Patanjali Shastri was appointed as the next successor. That is how the convention started.
SG: Still, you are the dean of the judiciary.
Nariman: No, no. I am not the dean of the judiciary, I am just a person who has practiced for 67 years. Far too long.
SG: That makes you the dean. Now you should have some prescription about how to bring calm back.
Nariman: There must be a reaching out by the chief justice, this chief justice, the successor chief justice which has to be justice (Ranjan) Gogoi. They can’t have a supersession again. We have had two supersession. Each was disastrous and it is bad for the institution.
The successor chief justice has to be justice Ranjan Gogoi
SG: Do you have any apprehension of any supersession coming up?
Nariman: No, I have no apprehension.
SG: Because, Mr Amit Shah says that the appointment will be decided on whom the outgoing Chief Justice recommends.
Nariman: No, that is a recommendation, not a convention. You must remember there are two things — recommendation of the chief justice is not a convention. He can recommend number seven but that does not mean the number seven will be appointed. The convention is that the senior-most judge should be the chief justice. And justice Kuldeep Singh, in the second judges case, had said that this constitutional convention is law.
SG: This is a benighted city, there is gossip etc. And now the dominant sort of gossip is about who will be the next chief justice because this government will not allow justice Gogoi as he attended the press conference.
Nariman: Not at all. Justice Gogoi has to be appointed being the senior-most judge. There is no doubt in my mind. There is no doubt in the mind of any right-thinking person.
SG: And if is done, will it be a wrong step?
Nariman: It will be a totally wrong step and also unconstitutional. You must remember a constitutional convention is as good as a constitutional provision.
SG: Particularly justice Kuldeep Singh has said that this is the law.
Nariman: Yeah, and it was a concurring judgment. Justice Singh’s judgment in the second judges case was a concurring judgment.
SG: So it effectively leaves the executive no room?
Nariman: No room, I don’t know whether they are inclined to do it, they should not be because we have to function as a Union of India. All of us is the Union of India — the judiciary, the executive, the parliament, the legislative assembly they all are part of the Union of India.
SG: You say God save the honourable Supreme Court, you have taken that from the American Supreme Court.
Nariman: Because every single day — American Supreme Court has lasted 220 years till now and every morning whenever the court is in session, there are nine judges who all sit together unlike us. They do not have benches. There is a regular ritual which says the God save the United States and this honourable Court.
SG: God save India and this honourable Supreme Court. So who should god save this honourable Supreme Court from?
Nariman: From everyone. From those who talk, from those who speak, from the judges also. After all, you see the Supreme Court is supreme not because of five judges or 15 judges, but because it consists of a total number of judges. That is the institution and the chief justice of the Supreme Court is the constitutional head of the court. Somebody has to do something which others cannot. That is why when this happened in the high court when Mukherjee was the chief justice and there was a problem among the four or five judges of the court, there was a complaint of 200 lawyers all signed. He said he will check up. After 8 or 9 days he decided that these charges are correct and stopped giving work to these 5 judges. Every morning they stopped coming to court. Why? Because the chief justice is the master.
Chief justice of the Supreme Court is the constitutional head of the court
SG: Some of that happened this time also because these 4 held the press conference?
Nariman: No, I don’t know about it, the press conference for me was all wrong.
SG: How can the chief justice show large heartednesses?
Nariman: Go and ask him, I am not the chief justice’s spokesman. I am the Supreme Court’s spokesman.
SG: Would you like to see the senior-most judges sit together?
Nariman: Yes, at some point of time, yes, but they sat together — all seven of them and sent that poor fellow to jail — that Madras high court judge (C.S.) Karnan. They were seven and the senior-most.
SG: But not lately? Number one and two are not sitting together?
Nariman: They should, at some point in time. Number one and three should sit
together. Number two and four should sit together.
SG: That is your advice?
Nariman: How can I advise, they can do whatever they like to do. One thing is absolutely certain in my mind is that the next chief justice has to be the second senior-most judge. That option is not there.
SG: So Fali, has the Supreme Court weakened now?
Nariman: Yes definitely, because people have lost faith. This incident has contributed to it. They say something is wrong, God knows what is wrong.
SG: So is the consequence of that weakening of the court that the government — executive — can sit on appointments now?
Nariman: Yes they can if they want to but I think it will be very foolish for the government to sit on appointments.
It will be very foolish for the government to sit on appointments
SG: The Justice Joseph case?
Nariman: See, it is not for me or you to say that justice (K.M.) Joseph should be appointed or not be appointed. That is where we are at fault because we are asking the wrong question trying to get the wrong answer. The whole country cannot say that appoint Joseph or don’t appoint Joseph.
SG: The collegium has recommended.
Nariman: Yes, therefore they have to say that you must pursue it and appoint it unless you try to withdraw that recommendation. I cannot say that they are wrong in that view.
SG: There are many other vacancies in the Supreme Court.
Nariman: And in the High Courts also.
SG: People are getting frustrated now because they see legal delays, procedures not changing and no reforms particularly at the high court level.
Nariman: Oh yes, absolutely. There seems to be a lot of heart burning among people and is the beginning of all the rumors which go around. So and so gets on with this gentlemen etc.
SG: So Fali, going ahead…
Nariman: Yes, going ahead is the most important that we can do. Leave all this. It is a bad dream, it happens in the life of an institution. The institution is far more important than the individuals which for the time being are within it from the way I see it. Some judges are this/that etc.
SG: The stature of judges rise over time or declines over time?
Nariman: I don’t think it either rises or declines over time. The statures of us who are appreciated rises.
SG: That is why there is so much weight on your shoulders. It seems that the top lawyers get paid enormously, more than you ever got paid because you were not greedy. I know that having stood behind you and hidden behind you. Are you disappointed they are not speaking out?
Nariman: They are all my colleagues so I cannot say anything about them. Each of them is entitled to say what they like. I told one of my colleagues if you want to impeach a judge, impeach him on proper grounds. You have to shoot to kill. If you shoot to hurt it will not hurt a man or woman but the institution.
SG: Even our editorial view was that it is one of the stupidest shots fired, because it was not going to go anywhere.
Nariman: That was very grave, Apart from V. Ramaswamy’s case which went there and one or two judgments from Calcutta etc. For different reasons it did not come out in this fashion because the Parliament is supreme, it can say despite the verdict of the committee they can reject it — it may be right or may be wrong. In fact, Shanti Bhushan himself told me, when he went to sign the impeachment of Ramaswamy to Vajpayee, he said — it is a minor thing. I actually miss Vajpayee, he had a remarkable sense of what is right.
SG: How would Vajpayee have handled it?
Nariman: I don’t know how he could have handled it but I could tell you how he handled a particular minister who belittled a sitting chief justice and said that he is probably 65 and should have retired long ago. Vajpayee did not ask him to resign but directly went to the President and asked for his sacking. You have to have statesmanship.
SG: You happy with the collegium system as it continues?
Nariman: I am not happy about it. It is stepping from the frying pan to the fire. I am not happy with the government appointing its own nominees.
SG: You are not happy with the NJAC idea?
Nariman: No I am not, but it is alright. In fact, I told the opposite side that I am willing to withdraw the petition against NJEC if the government agrees to adopt the Venkatachalam Formula. It was not collegium – commission, three senior-most judges, and two others. There needs to be some kind of majority of judges, you cannot put them in minority. He said I propose this in the context of the basic structure of the constitution.
SG: If that is done then the government executive should not stop it?
Nariman: Absolutely.
SG: That is it was all about, keep smiling and be happy, you don’t know how important you are.
Nariman: Thank you, good to see you
This interview was transcribed by Ratnadeep Choudhary and edited by Amit Upadhyaya.
Watch the full interview on NDTV here.