(Source: BloombergQuint)

Insulating Judiciary From Interference Is Currently A Challenge, Says Gopal Subramanium

Optics indicate an institution’s credibility, insulating the judiciary from interference is currently a challenge, allegations of Maoist links in the Bhima Koregaon case are a far cry, the judiciary must interrogate authority and the government must restore the Central Bureau of Investigation’s credibility. Senior Advocate Gopal Subramanium shared his views on the important developments and landmark verdicts of 2018 on BloombergQuint’s weekly law and policy show—The Fineprint.

Watch the conversation here:

Here are the edited excerpts from the interview:

On his last day at the Supreme Court, Justice Kurian Joseph, while referring to former Chief Justice of India Deepak Misra, said that the CJI was being remote controlled, the allocation of cases was done in an arbitrary fashion and sensitive cases were given to judges who had political biases. Was that your assessment too?

The judges who are within the system seem to have a better understanding of what’s going on. As professional lawyers, we just tend to see that the matter is listed before judges. We don’t take too much notice. For us, all the judges are more or less the same. It’s a job that you have to perform very well, whoever the judge is. There are some larger issues which are involved in this matter. In courts, there are many issues which are very subtle.

For instance, even the optics of how matters are allocated can sometimes indicate the credibility of an institution. So, the four judges were conscious that the institution of the Supreme Court and its credibility must not be impaired. This is not to directly suggest that anybody was in the wrong or right. But higher credibility requires higher care. It requires a lot more introspection of how you deal with matters. The retiring judge held enormous esteem. He was a man of saintliness, above reproach and for him to have said what he said, it is a matter of relevance which should not be lost sight of by the successive Chief Justices or by his companion judges. The Supreme Court has a reputation and integrity which transcends its individuals.

So you think there was a merit in the four judges going public.

There are two ways of looking at it. There is a traditionalist view which believes that judges don’t go to the press. It is a valid point. If I were a judge, I would not go to the press. But when you are the senior-most category of judges, your obligations are different as you are also a member of the collegium. You are responsible for the upkeep of judiciary.

It’s not that any of the four judges were unmindful of the tradition that judges don’t go to the press. I have not seen any of them go to the press until that day. So, there must have been a lot of consternation which was bottled up within them.

They felt that they have to breach the dam in order to be heard. They felt that they owe the duty to the public at large in terms of accountability. When you are the Chief Justice of India, you have to carry your colleagues. It requires a great interpersonal dynamics, which must be cultivated. It is very necessary for heads of institutions like the courts to be great leaders.

Given that it was a first and unprecedented, what have we learned from this incident to ensure that judges in the Supreme Court don’t need to talk to the media and they sort out the differences within the Supreme Court itself?

The Chief Justice is the master of the roster. It is entirely up to him to assigns cases. But we never had a crisis before. It was the first time when it was so perceptible, and it had to be addressed. I don’t think it can be brushed under the carpet. Now that it has been brought above the carpet, any Chief Justice or his successor has to make sure that even in the matters of allocation of cases, there is some degree of openness and transparency within the community of judges. It is a matter of roundtable discussion amongst judges and they can easily decide as to how this can be dealt with. Another factor which we must bear in mind is the other side of the picture. Suppose judges think that politically sensitive matters are coming simply on their lap. It places a lot of additional strain on those very judges. So, it is not that those judges are asking for cases. They are also in a state of discomfiture. The Chief Justice ought to have avoided these controversies by more reflection and discussion.

Do you think the apex court did enough in Judge Loya’s case?

I know there has been a lot of controversy about this case. I think if there are matters where members of the judiciary are involved, one who is dead and someone who is speaking about the circumstances in which death happened, it is imperative to have an independent inquiry. I respect the judge [who wrote the judgment] and his determination but there is a great degree of temptation which one has to avoid—protecting your own community—because here is a judge who is dead. That should have worried us. I’m sure it worried the court, but I think that fair inquiry would not have hurt any of the four judges [who were accompanying Judge Loya]. It would have only, according to me, strengthened the position of these four judges. It would have also strengthened the final outcome of the Supreme Court. I might have dealt with it in a different way to arrive at a fair conclusion.

And that is the least the judiciary owes to itself as it has to ensure that the judges who deal with difficult cases—and there is no shortage of the number of difficult cases—must be protected. They have to be insulated from interference of any kind and this is a very important challenge at the moment which I am confident that the present Chief Justice is alive to. I have very great hope in him that the insulation will happen institutionally, and it must be done institutionally.

Another case that has made headlines this year and continues to is the arrest of activists in the Bhima Koregaon case. The majority refused to use Article 32 to direct a Special Investigation Team probe and the minority judgment emphasised that Article 32 must be used to ensure liberty is not sacrificed at the altar of conjectures. Which opinion do you agree with?

I agree with the minority completely. We cannot silence the civil society, and this is what happened in 1974. I don’t understand why people don’t learn from history. We must have a civil society with organisations which have different points of view and there is nothing wrong in that. The fact that somebody is constantly picking up the battles of landless agricultural labourers doesn’t mean that he or she is a Maoist. It is completely a far cry. Someone who is working for civil liberties of bonded labourers or rights of those who were once upon a time called as scavengers—are we going to say that they are linked to Maoist organization? We have to have some common sense about it.

If we do not have people who fight for civil liberties, India will be an utterly impoverished country. If you have seen some of the works done by Devika Jain, it will tell you about the field study which she undertook by going to different villages, interviewing women and then writing papers. Similarly, I don’t think Romila Thapar can ever be described as a person with Maoist links. She is an all-time great historian of the world. We must not lose our senseof perspective.

Did the Supreme Court then fail to confront political convenience and upheld it over dissent?

A judge is an instrument of interrogation of authority. That is his oath under the Constitution. When you say without fair and favour for a judge, it has a slightly different meaning. It means he will question authority. He is not going to defer to authority. This idea of deference to a legislative judgement is a very qualified sphere. It doesn’t apply at all to a political judgement or political authority. The executive is amenable to the rule of law. So, who will make them amenable to the rule of law, except courts? So, courts must question every premise. The history of Supreme Court is replete with any number of sustained interrogations by the court in the context of fundamental freedoms of the people. So, the court has been a bastion. It has history, great tradition and a certain culture that we have to live up to. I respect the minority view.

How are you viewing the infighting within the CBI that has reached the Supreme Court now? Has the constant government interference put the institutional integrity of CBI in danger and that’s what’s unravelling before the apex court now?

I have seen the CBI since CV Narasimhan. I have seen the CBI when Vijaya Rama Rao was the director. It is not the same CBI. And that should give you the answer.

How do we make it better?

Very simple. You have to make it a strictly professional organisation. The moment you make it professional, the moment you weed out people who have come in the organisation on account of certain other reasons—which has happened not during the present dispensation at all—it has to be dealt with. You must have an organisation with exceptional people. That is who the CBI was meant to be.

The appointment process of the Director seems fair—it has the leader of Opposition, the Chief Justice of India and the Prime Minister. But once the appointment is done, how do you ensure that the organisation is free from executive interference?

It is not the appointment of the Director alone that matters. There are appointments down the line which count. In all of them, the Director may not be able to do anything at all. What happens if there is a first-class Director but there are other people who are appointed and come in for various other reasons. No government, and I’m not saying with reference to any particular government, must attempt to capture law enforcement agencies. It is the worst thing you can do in a democracy. This is a good occasion for the government to step back and say wait—is this not a wonderful possibility to take? What I would believe as one of the greatest outstanding initiatives would be to put the organization in its peak order – it can be done.

But clearly, there is no willingness.

It is a matter of conversation. The positions are already crystallised and taken. Let me explain this as a lawyer. I pride myself in being a persuasive lawyer. In the discourse of law, whether it is a judge or a lawyer or legislator or executive or minister, they have to learn to communicate. We have to put a certain point of view as futuristic, in terms of institutional correction and why should we always believe negatively that positions have been hardened to such an extent that it can’t be done. I will always like it to be done. I am an eternal optimist.

But more often than not such corrections have come from the Supreme Court—what can the apex court do today?

I have no doubts that the Supreme Court would do what is right. It goes without saying that the institutional integrity of the CBI will always be protected by the Supreme Court. But I am on a different point. Do you need a verdict from the Supreme Court? When I was a law officer—as a Solicitor General—I always took the initiative that why do we invite courts to rule against or for you if you are clear that what is right can be done by you. I have succeeded on numerous occasions. It needed communication, conversations, opinion writing. I still succeeded.

Let me come to your personal journey as a lawyer. In the United Progressive Alliance regime, you resigned because an outside counsel was hired by the government to argue a particular matter. In the current regime, you withdrew via a letter your candidature for elevation to the Supreme Court. When you look back now, would you have done anything differently and have these two incidents soured your relationship with both the national parties?

In the first case, my resignation was on principle and not because I had any disrespect for the minister concerned who wanted a private lawyer to be engaged. There was a lack of communication also, but I acted out of my own sense of principle and not that I had any disrespect for him. We are very good friends. You can be good friends but act out of principle.

In the second case, I was really looking forward to becoming a judge. I had stopped practicing and was looking forward to it. It was a new phase of my life. I thought I will enjoy reading, writing and walking in big garden and look at the green—it is idyllic and romantic in your head when you want to be a judge.

I saw the first resistance in some of the stories which were planted in the press. I want to assure everybody that nothing was true. I had to take a call after I came to know that four people were recommended and three were suddenly segregated and cleared and one person’s name had to be sent back. I had two options. One was to let the recommendation go back to collegium and let the collegium decide to reiterate my name. Or the alternate was to decide to be in charge of my position because constitutionally the segregation was not proper. I went public and revoked my consent. If I wouldn’t have done it, I would’ve been a judge. Chief Justice Lodha was very supportive and I’m absolutely sure he would’ve supported the elevation.

You asked whether it soured my relationship with the government. This is an insight which you need to know. No. I realised that they had a point of view from their standpoint. They had some misgivings. They could have asked me directly and I could have cleared it up. But sometimes, such things don’t work on transparent parameters of communication.