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LIVE DISCUSSION WITH SAURAV DAS
On 12th December, 2024, LawChakra hosted a compelling debate talk with the Investigative Journalist Saurav Das, aimed at bringing forth to the audience a Live Debate on Judicial Process Under Current CJI and Former CJI at the Supreme Court. The session was truly extensive , and dealt with various matters discussed at length such as the implementation of Uniform Civil Code, criminalisation of Marital Rape in India, the recent lacunae in the judicial system , corruption in judiciary, the tenure of our former CJI and much more. In this 1-1 discussion , Saurav shared his thoughts from the perspective of a journalist. Belonging to the fourth pillar of democracy , he brought together the various setbacks one can see in the Indian Legal and Judicial system.
DISCUSSION ON JUDICIARY IN QUESTION-SUPREME COURT DECISION
“We need judges with a spine , there should be integrity. And there should be a systemic reform , firstly , and it is a learning from the past ten years that, if we have to make our High Court judges independent and with a spine, we should increase the retirement age from 62 years to 65 years because , when you are 60-61 years , you start thinking about the future and there is nothing wrong because , it is a normal human tendency that you will think about the future and then the judge will keep thinking that we should not pass such an order or keep adjourning the matter . So, these considerations, when they are at play ‘Justice does not happen in court’“
The discussion began with Das expressing his views on the controversial remarks made by Justice Shekhar Yadav at a VHP event and the potential impact of such statements on public perception and societal mindset. Das emphasized that anyone designated as a judicial officer in India is bound by certain constraints that relate to their office and the integrity of the judiciary. He stated:
“We do have freedom of speech in our country, but it is subject to reasonable restrictions, and it is not like in the USA.”
Das addressed the issue of both retired and sitting judges attending events and making speeches in public forums, especially on politically sensitive topics. He questioned whether sitting judges should be making remarks on issues like the Uniform Civil Code, which are politically charged. He stressed that judges must be very careful when making comments on such significant matters. He strongly condemned Justice Yadav’s remarks, stating:
“We in India are a democracy, and it is totally mind-boggling for a constitutional court judge to make such remarks, because we follow constitutional supremacy, not majoritarianism. Giving such comments in a public forum is very damaging for the institution because people lose faith.”
Das highlighted that Justice Yadav has often been in the limelight for his controversial statements, whether related to the cow as a religious symbol or other contentious remarks.
The discussion then shifted to the question of whether India needs a law like the Uniform Civil Code (UCC), akin to criminal laws that are applicable to everyone, and whether there is any alternative to it. Saurav responded by taking a stance in support of the judiciary, arguing that this issue cannot be resolved by judges alone, as they are not elected representatives. He expressed that the answer to this question requires a debate and discussion, as it has a political solution. He said:
“India is a pluralistic democracy with many customs that have been in practice for centuries, and these are not new. There are customs belonging to the Hindu religion, and hundreds of customs belonging to the Muslim community. We would never know about them unless there is a discussion on it.”
The next topic discussed was the controversial issue of Marital rape. Das was asked whether the laws regarding marital rape should be enacted by the legislature or whether judicial proceedings should continue on this matter. He shared his views on the subject, emphasizing the importance of encouraging both parties to provide their opinions. He stated that when the issue was pending before the Hon’ble former Chief Justice of India (CJI), it was emphasized that both sides should be heard, allowing the court to serve as a platform for debate and discussion. He noted:
“The former CJI was of the view that both of the parties should be encouraged to give their views, and then there will be discussions on it. The court as a platform for debate and discussion is fine, and it is good.”
The discussion also touched on the misuse of women-centric laws in India. Das acknowledged that the laws in India are largely focused on protecting women, which is necessary in a developing country like India. However, he pointed out that these laws are sometimes misused. He suggested that the misuse of laws, such as rape and dowry laws, should not be the sole reason to change them. He used the example of a phone to make his point:
“for instance the phone, i can throw it at a person and then it is being used as a weapon that does mean we ban the phone similarly, we don’t change the laws just because one party is misusing them. The solution is to improve the implementation, and the judges should apply their minds to make the laws better.”
On the issue of corruption in the judiciary, Das was asked about his thoughts on the matter and the role of the collegium system in improving the situation. Das responded by acknowledging that corruption is an issue that has existed since the beginning of mankind. He quoted former CJI Ranjan Gogoi, who had remarked that “corruption is a way of life.” Das further elaborated on this by saying:
“Corruption in our country is deeply rooted, and it comes with advancement. Our society is not fully mature, and corruption is still somewhat acceptable. The judges, who come from society, are a reflection of that. If society itself is accepting of corruption, it will inevitably make its way into the judiciary.”
He further emphasized that corruption in the judiciary is an everyday reality that must be confronted, rather than ignored, even though acknowledging it may lead to a loss of public faith. He argued that tackling corruption requires systemic reforms and greater transparency at all levels of the judiciary. He stated:
“Corruption is an issue that has been there since the beginning of mankind. In our judiciary, corruption is an everyday reality. We need systemic reforms at all levels. We cannot sweep it under the rug just because people will lose faith in the judiciary.”
The group then shifted to discussing high-profile cases such as the Ayodhya judgment, the Places of Worship Act case, the Delhi liquor case, the 2020 riots, and Umar Khalid’s bail plea. Das was asked how the courts have handled these cases. He spoke about the case of Umar Khalid, pointing out that he had been in jail for four years as an undertrial.
He stressed that such prolonged detention is damaging to a person’s life. He pointed out that the police’s chargesheet should be based on facts, not assumptions. In the case of Umar Khalid, he noted that the police had relied on conjecture rather than concrete evidence. He said:
“We are continuously watching how the Supreme Court tackles matters each day, and if we take the case of Umar Khalid, it has been four years since he has been in jail. The point is, someone who is undertrial and is in jail for four years—it is damaging for that person’s life. The chargesheet should be based on facts, and the police should not be making conclusions based on assumptions. You cannot substitute evidence with conjectures. In political cases, the judiciary is under constant pressure.”
He emphasized that the judiciary needs judges with integrity and courage, and he also advocated for increasing the retirement age of judges to ensure continuity and experience within the system.
The discussion then turned to the tenure of the former CJI, Justice DY Chandrachud, and the high expectations placed on him when he took office, especially regarding the Ayodhya judgment. Das commented on this, saying:
“The point is that there is much to learn from Chief Justice Chandrachud’s tenure, and the lesson should be that there should be less talk and more work. If you look at the tenure of Chief Justice Chandrachud, there has been much talk, many lectures, and discussions about what the court has done. But 99 percent of the cases that come to court can be resolved by applying the law because they are ordinary matters. It is in the one percent of cases where judges are expected to rise to the occasion and deliver justice.”
He also criticized the judgment in the Judge Loya case, asserting that it disregarded important principles of criminal law and was contrary to the law of evidence. He pointed out that the judgment relied on a “Ring of Truth” around the statements of district officers, which he argued was not legally valid in India, as the truth in such cases is determined through cross-examination of witnesses. He remarked:
“The former CJI has thrown away the jurisprudence of the entire criminal law and has largely favored the executive. In the case of Judge Loya, there were several flaws in the judgment passed by Justice Chandrachud. The judgment used the ‘Ring of Truth’ around the statements of district officers, but in our country, the truth is determined through the oath and cross-examination of witnesses, not a discreet inquiry.”
Das also pointed out that Justice Chandrachud had transferred cases like the Umar Khalid bail plea to other courts, which ultimately led to the withdrawal of the bail plea.
Finally, Das was asked about the influence of media on the judiciary and its decisions. He reiterated that judges must remain neutral and immune to media influence. He referenced high-profile cases like the Jessica Lal and Aarushi Talwar murders, stating:
“A judge must be neutral. Media trials have happened before, but judges should follow the law of the land, not succumb to media pressure. If judges don’t, there is a problem with their judgeship.”
He also emphasized the importance of judicial appointments, saying that the judges must adhere to constitutional ideals and follow a code of conduct. He added that the bar must ensure that judges remain accountable and should not be afraid to challenge them when necessary. He stated:
“The judges must follow a code of conduct, and the bar must keep a check on the bench. The bar must not be fearful of addressing judges in public. The bar must rise to the occasion.”
In conclusion, Das addressed the role of the judiciary in filling the gaps left by the executive. He acknowledged that while the judiciary sometimes has to step in on issues like air quality or gender justice (as in the Vishakha guidelines), this reflects the failure of the political system. He remarked:
“The judiciary is supposed to focus on constitutional matters and develop jurisprudence. In political matters, such as air quality, the court sometimes has to step in, but the problem lies with broken politics. People must come forward, protest, and mobilize their opinions. It is the Centre’s responsibility to take the lead in such matters.”
On reforms in the judiciary, Das expressed that there are many areas in need of improvement. He noted that Justice Chandrachud had pushed for digital infrastructure improvements, but he stressed that larger systemic issues, such as transparency in appointments and judicial accountability, must also be addressed. He concluded:
“There are many nuts and bolts that need to be fixed. The judiciary can be more efficient, and there is a lot of scope for improvement. One good thing that Justice Chandrachud did was push for digital infrastructure. However, larger systemic issues like transparency, appointments, and accountability need to be fixed to improve the judiciary.”
