New Delhi: In an exclusive interview with Indian Express, retired Supreme Court Justice Sanjay Kaul shares his views on a range of topics, from post-retirement plans to the judiciary’s role in a changing India. Here are the excerpts:
Q: What are your post-retirement plans?
Justice Kaul: “Number 1 is to relax. I plan to spend a lot of time in Kashmir. One of my properties is being done up for tourist purposes and I’m planning to rebuild my home which was burnt down. It was a 90-year-old cottage and I’ve got permission to rebuild it. It’s a heritage property by the lake and the idea is to do it up like it was when the family was there. By God’s grace I’m not in need of money, so I will work only to keep my mind occupied. If there are arbitrations or opinions that come my way, I will do that at a pace that I can control but, otherwise, I want to spend time with my grandchildren.”
Q: What is your view on post-retirement roles offered to judges by the government?
Justice Kaul: “Why should a tribunal interest me? I have done this for almost 40 years as a lawyer and a judge. Then there is Governorship and, the way I see it, it compromises my standing. That means I did things because I wanted something from the government.”
Q: Would a Rajya Sabha nomination also fall under this category?
Justice Kaul: “All political posts. I am not meant for this as I do not want patronage. But different people have different perspectives. If somebody were to ask me, yes, I’d say I have a special interest in Kashmir. I would like to see peace in that area. Other than that nothing interests me. I believe in what I wrote in the Article 370 judgement. I know there is some criticism, but I’m not bothered by it. The creation of Kashmir, it’s coming into India and the manner it came in – it is a case by itself. I’ve always felt that it was meant to, ultimately, (be) completely merged in a phased manner.”
Q: But some of the critique is how the judiciary gives the benefit of the doubt to the government which has a strong majority in Parliament…
Justice Kaul: “I may not agree with all judgements. I was a party to the Rafale verdict and my own thinking is that we are not to sit in judgement over contracts. This has been my judicial view in all contractual matters and I was looking after tender matters in the High Court for a very long time. There are very limited parameters on which you examine these issues. Otherwise, commercial activity will be affected. My view was with their buying a plane, if there is a criminal issue, then go and prosecute; you cannot come before us (citing) Article 32 of the Constitution for breach of fundamental rights. My views on bail are perceived to be fairly liberal and very different to that of the government. Even on judicial appointments, I’ve held a different view.”
Q: There is a charge of judicial evasion against the Supreme Court…that important issues concerning the government have not been heard before they have become fait accompli.
Justice Kaul: “There are some cases which are purely legal cases. But over the last few years, not necessarily under this government… the number of what I would call politico-legal cases has increased. They are basically political decisions, which have legal ramifications. So the court, of course, has to deal with the legal ramifications. But they get hyped to different levels because of the political consequences. And with very, very divergent politics, has meant there is inability to have a dialogue. I have always been a votary of dialogue but we have reached a place where, you know, as if there is no other opinion possible. It is all right to disagree.”
Q: What are some of the things that you would change?
Justice Kaul: “First, to say for some offences for which sentence is up to 7 or 10 years… Those who undergo anything from one 3rd to half of the sentence and are not repeat offenders, take a bond and release them. Plea bargaining and sentence bargaining must be implemented. America has succeeded in this. California, for example, tries 3% of all its cases and the rest are settled. We want to take the smallest to the largest cases from the lowest to the highest court.”
Q: How should the judiciary look at these aspects when challenged in court, especially regarding legislation passed without debate?
Justice Kaul: “The judiciary’s task is different from their task. How much pre-consultation should there be is the Parliament’s task. Now, this government has a system by which apparently – consultation takes place in a different manner… not so much in the public domain but behind closed doors. My view is that before a law is brought into force, there should be a legal impact study… Nicely drafted legislation prevents unnecessary litigation.”
Q: Do such political stakes weigh in on a judge’s mind?
Justice Kaul: “We are all humans. It must weigh but our training is to keep personal beliefs, other factors aside and as much as possible, take a dispassionate view of things. I personally take a call after thinking and come to the conclusion that I believe what I’m doing is right, it is very subjective. We also change our views but at the time of the decision, we do what is right then. The test I have applied is to see whether my heart and mind say that what I’m doing is the correct thing. As long as it is so, it does not bother me even when there has been some tussle with establishments.”
Q: What did you mean when you said judges are not fund collectors for the government?
Justice Kaul: “We cannot have the jurisprudence of the 1970s and ‘80s because this country was in a different frame at that time. In revenue matters, a government lawyer makes the argument that these are the mistakes for the state…Rs 500 crore or Rs 5000 crore… What difference does it make? When I say fund collector in such matters, it is not your job to always see the state’s view. If there is limitation, then government limitation must be waived off? You cannot import a 1980s land acquisition decision and simply apply it today. It is not fair to the average citizen. This balance between the citizen and the state has to be maintained. If he is a crook, throw him out, but it is not as if that the government is always right.”
Q: How does the Supreme Court fare on bail?
Justice Kaul: “I think the Supreme Court is sending mixed signals on this. Maybe there has to be a uniformity and a pattern in what is done. See, unlike many countries, we don’t have one single Supreme Court. Each bench of the Supreme Court is a Supreme Court so a litigant also takes a chance because there are different perceptions which may arise in each bench. One solution is: say, on a regular hearing day (Tuesday to Thursday), possibly three judge-benches across the board would be a better idea instead of two. If something is worth admitting in the Supreme Court, it may be worth spending three judges on it.”
Q: Isn’t that the role of the Chief Justice?
Justice Kaul: “To some extent, yes. In the High Court, the Chief Justice checks up on how many cases are there and who is deciding them. A High Court Chief Justiceship is one of the most challenging tasks. In the Supreme Court, the difference is that it is a very registry-oriented court. Whatever happens is really between the Chief Justice and the registry. The high courts are, principally, judge-committee administered courts. So the participation of judges is much more which is not there in support.”
Q: What about the institutional response on how the SC handled the sexual harassment allegation against CJI Ranjan Gogoi?
Justice Kaul: “The institution does get troubled. Well, no doubt, it is troubling. There are different perspectives on how that issue should have been tackled. Transparency doesn’t mean sitting in a glass house. Every institution has some aspects of transparency, some inner mechanism on how it works. Therefore, it is important that those boundaries are respected.”
Q: On judicial appointments, in your experience has the government proposed names to the collegium?
Justice Kaul: “Theoretically, no. It is a recent thing, where the Collegium has said no, and the government is sending it back (for reconsideration). (In) very few cases maybe we may have reconsidered but by and large we have reiterated recommendations where we said no and have so far stuck by it.”
Q: What is your prescription for the government then on appointment of judges?
Justice Kaul: “I may not be a votary of this method of appointment of judges, but still it is law, it must be followed just like it must be equally applied when it supports the government. The Parliament passed a law unanimously. And then the court quashed it. That is something which this government has not been able to (come to terms with). The collegium system is (a) judicial creation, it is not part of the Constitution. The exigency of that situation possibly required it and it worked well for many years. Maybe when the problem started, it was not worked well…I wouldn’t blame the system alone. The NJAC, I believe, was finished too suddenly and did not get a chance. One method could have been to keep the challenge (before the Supreme Court) pending, see how this would work and then maybe tweak it. In any case, the troublesome part of the NJAC was the presence of six people which would force a veto against the judiciary. You needed a 4:2 majority otherwise there would be a deadlock with 3:3. My own view is that the Chief Justice of India should have had a casting vote. It would have given a predominance to the judiciary. Once that is done, then the appointment must go through and there should not be a second look at it by the government. NJAC could have been balanced if the judiciary predominance was protected. I think politically also…it could have possibly been accepted if it had been tweaked rather than set aside. Judges who were part of the bench later on said that it should have been not so (set aside)… So, in my view, sitting across the table and dealing with it is preferable than any endeavour that would need side discussions. Because then you can tell the government why you feel something can’t be done or can be done. World over, governments have a say in judicial appointments and I don’t know of a country where there is no say. So India was, in some way, unique when it brought in the collegium system.”
Q: What about the institutional response on how the SC handled the sexual harassment allegation against CJI Ranjan Gogoi?
Justice Kaul: “The institution does get troubled. Well, no doubt, it is troubling. There are different perspectives on how that issue should have been tackled. Transparency doesn’t mean sitting in a glass house. Every institution has some aspects of transparency, some inner mechanism on how it works. Therefore, it is important that those boundaries are respected.”
Q: What about transparency in judicial appointments?
Justice Kaul: “The problem with today’s system is everybody has a view on everything without having studied how it is. So in actuality, a Chief Justice carries out some element of a search on who to appoint. He consults…at least, I consulted judges across the board in high court, got their opinion, consulted some and found out who are the lawyers who are meaningful and respected and get their opinions. I would seek an informal intelligence report. Then gender representation, community representations, subject representations… because Chief Justice only hears largely writ petitions and appeals and not criminal side cases. So you try to structure and get the right talent because the High Court is the base for the Supreme Court. So, after that the Collegium recommends, it goes to the ministry, IB input, government input, state input, then the consultee judges of the Supreme Court, then only a HC judge gets appointed.”
Q: What about Justice Sanjib Banerjee? A Chief Justice of a major High Court saying he only got an email about his transfer without any reasons.
Justice Kaul: “So I also got an email when I was transferred from Punjab and Haryana to Chennai. It ultimately was a very satisfying move but that’s a different matter. It’s not that somebody talked to me…I only got to know the reasons when I broached the topic later. You’re probably right, I would have thought that somebody should have called me and told me that look, we want you to take over the Court or something. I’m not averse to the thought process where there should be better counselling and attention to this. On Sanjib Banerjee, I personally have had a very high opinion of him and honestly, what happened should not have happened with him. I must say that though I was a former judge of Madras High Court, I was never consulted on his transfer.”
Q: In the case of Justice Victoria Gowri, the Collegium was caught off guard…
Justice Kaul: “But it went through the whole process…the people who woke up suddenly, why did they wake up suddenly? So there are agendas on both sides. That is the problem. But I don’t think there has been any complaint on her judicial performance so far.”
Q: Isn’t that alarming? That the name went through the whole system without her party membership being flagged?
Justice Kaul: “These kinds of things, it’s very difficult for the judiciary to find out. We are dependent on the government or government agencies to some extent for these inputs. That can be a problem. I think it is important to remember that a judge doesn’t only decide government cases. The government must look to see that good people are appointed to the bench.”
Q: There are many reasons for transfers. Sometimes doubts are cast about a judge and since impeachment is the only option, transfers are preferred.
Justice Kaul: “Second, is handling temperament issues. These are what I label as judgeship not resting easy on the shoulder. There are cases in which judges are persuaded to shift out also because some of the good judges may get a better exposure somewhere else… Maybe in bigger courts. This is the only check and balance really for a High Court judge and we have not developed any other system. If somebody says, well, there is some objectivity… Yes, I have known of cases where someone is wrongly transferred. In the collegium, I was part of, I can’t think of any chances that can be labelled wrong. There may be some differences in perspective, but sometimes there is a consensus even if you hold a different view.”
Q: On the issue of bail for economic offences, what’s your take, especially with the government arguing for a high bar?
Justice Kaul: “I do appreciate the difference between serious economic offences and other offences. So, therefore, the law is a little different for serious economic offences. But then with today’s technology, you cannot have prosecution continuing for years together which means you have to keep people in custody. To say that, well, the jurisprudence of bail for economic offences has to be totally different from the jurisprudence of bail otherwise does not gel with me. Sure, economic offences affect the society at large but crime against the body also affects society at large. Are they completely different things when these offences also carry life sentences?”
Q: Regarding the criminal justice system, you’ve mentioned it’s becoming an alternate system where the punishment is the period in custody. Could you elaborate on that?
Justice Kaul: “It is almost becoming an alternate criminal justice system where the punishment is the period in custody because you don’t know whether you will be able to convict or not. That is not how the criminal justice system should work. Bail hearings in these political cases are like final hearings. It is a complete waste of time to my mind. How much judicial time goes in this…… Especially when you’re not actually proceeding with the trial. I believe a serious thought should be given on how many cases have seen convictions and how much time it has taken for conviction. So the government can weigh which cases it should litigate.”
Q: There is concern that stringent laws meant for serious, economic offences or terrorism are, in a sense, used to stifle opposition.
Justice Kaul: “Yes, but the solution is to focus on a better prosecution system. When these cases are decided swiftly, that is a signal. How do you explain that we have so few forensic labs that you don’t get a report on time? In cases I have handled, I have (said) outsource it because it can’t be a reason to keep somebody in custody indefinitely. The problem is also that nobody is washed in milk (doodh ka dhula). The only solution to more balanced approaches is if trials proceed quickly. You’ll know whether he’s done something or not done something.”
Justice Kaul’s extensive and candid responses throughout this interview provide valuable insights into his judicial philosophy, the challenges within the Indian legal system, and the need for ongoing reform and dialogue. His reflections shed light on the complexities of judicial responsibility and the nuances of legal governance in India.