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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.