February 22, 2020
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“Judges Should Not Take Up Any Post For Two Years After Demitting Office”

The outgoing CJI takes stock of his brief tenure of five months

“Judges Should Not Take Up Any Post For Two Years After Demitting Office”
Narendra Bisht
“Judges Should Not Take Up Any Post For Two Years After Demitting Office”

The brief tenure of Rajendra Mal Lodha as Supreme Court chief justice was an eventful one. He has been called an activist judge, a badge he’s not quite comfortable with. “We interpret the law. When it affects people, our orders are called activism,” he says. He gave us that memorable quote, calling the CBI a “caged parrot”. Some of his proposals, like getting the courts to work 365 days a year, met with stiff resistance and are yet to bear fruit. Above all else were ominous signs of an executive-judiciary turf war, via the Judicial Appointments Bill. In an interview to Anuradha Raman, Justice Lodha takes stock of his work.

You were the CJI for five months. As you demit office do you leave the judiciary strong or has it been weakened?

I feel I am leaving it better than when what I got when I stepped in. That has been my endeavour and that has been my effort. But it is for the people to actually judge and see.

You said, you leave it slightly better than when you stepped in. In what way?

I have tried to ensure that the role of the judiciary in the administration of democracy continues to be as the constitution makers thought it to be. And, that is a matter of satisfaction, I believe. 

There are reasons to believe the executive is trying to hobble the judiciary with legislations—the judicial accountability bill and the judicial appointments bill. What do you have to say about this?

What is important is to ensure...Look, obviously, judges have to be and, in fact, are accountable to the constitution. I am not going to comment on the legislation, but surely there should not be any worry about something that does not actually affect the institutional independence and institutional  integrity of the judiciary. What is most important is that institutional independence of the judiciary should not be tinkered in any manner. 

Are there reasons to believe that judicial integrity and independence may be imperilled?

No, No. I don’t think so. Look, I can tell you India has matured as a strong democracy and I always believe that for a strong democracy all three wings of the state, namely legislature, executive and judiciary must be strong because it is only when these three wings are strong, the ultimate result is you have a strong democracy. And I think we should be proud of the fact that a county as big as India having such a strong democracy is a very good sign. Institutions which we have built over a period of time, besides the judiciary, like the Election Commission and other constitutional institutions, they all are sign of mature democracy. Look, as long as you work within the parameters and the limits, I don’t find, any reason for any clash.. 

Is there a reason to believe the executive is encroaching...?

"All three wings of the state have inherent strengths. But the judiciary is the final arbiter. Frankly, I don’t see any clash.”

All these three wings are strong. Judiciary has inherent strength. Legislature has its inherent strength and the executive has its inherent strength. I don’t think any wing should have apprehension from other wings. I don’t, frankly speaking, have any doubt.

For a strong rule of law, a strong judiciary is a must. But at the same time when the other two organs are strong, ultimately you are achieving the objective of a strong rule of law. And when I say, strong rule of law, obviously it means a strong democracy. Because if your rule of law is slippery, your democracy is bound to be slippery.

Are you worried, about the dangers of a majoritarian government? After all, since 1984, this is the first time a strong majority government is in place?

What is the danger?

A danger of authoritarianism?

It just can’t be. Because, look, the legislature is also guided by the constitution. The executive is also guided by the constitution and the judiciary is also guided by the constitution . And the judiciary is the final arbiter of the interpretation of laws. I don’t see, frankly speaking, any clash. Look, it is majority, majority is good for governance. But it is not going to affect the the judiciary. After six decades and more, of our independence and constitution, such apprehension is misconstrued.

Yet, when you took over, you angrily responded to the Gopal Subramaniam episode

Not angrily. But yes, look, we have certain procedures, so long as it is within the domain of the executive to send a name back, that’s not a problem. Because that’s how the consultative process is made effective. But I think, as per the existing procedures, since his was not the lone name, it was clubbed with others, segregation was something that was not in accordance with the procedure and I objected to that. And after Gopal Subramaniam withdrew his name, nothing further could have been done, actually. I persuaded him and called him. The place where you (pointing to me) are sitting is where Gopal sat for 75 minutes and I did my best and he told me that he would return the next day. But unfortunately, then he sent me a six-line letter, that he was withdrawing his consent. 

Yet, he also expressed dissatisfaction at the judiciary letting him down. Didn’t he?

That was misconceived, unfounded and baseless because, look, judiciary does not react— I could not have reacted on press reports or any other report. I could have reacted only after receiving official papers. No sooner I received them, the very first day I returned from abroad, I called him. So where was the occasion for his conclusions and inferences ? I told him and then he apologized.

His 'segregation', was not discussed with you? This was done without your knowledge? Were reasons given to you?

No I will not divulge the reasons. Consultative process is fine but ultimately the final call would have to be taken by us. Unfortunately, that opportunity was taken away by Gopal Subraminam by withdrawing his consent, because we couldn’t take a decision.

The Judicial appointment bill seeks to ensure that the final call will not be taken by the judiciary. What do you think?

Once the law is in place, things would be different as a commission would have come into effect.. It has to be passed and ratified by 15 states, presidential assent will have to be given. 

As a citizen and not as the CJI, what are the concerns arising from the Judicial Appointments Bill? 

“I can’t comment on my predecessor—but it is a matter of satisfaction that people are alive to events. Debate shows maturity.”

I will not react to that. But you know, different countries have different procedures. Recently, at an event in London, I had a long discussion with chairman of the Judicial Appointment Commission of UK, Chris Stephens, and one of the members, Lord Tulson, who is the judge of the Supreme Court of UK, explained the procedure and the norms. But I can tell you with all that, yes they are very happy. They said, initially, good lawyers were not applying as they had a mindset one should not make any application. Later on, after two- three years things have improved. But still, his assessment was the best talent does not apply. T o my pointed question— Has it really improved the quality? Has the selection through the commission improved the quality of judges? —he said it is not so, but it has brought transparency and that has brought tremendous satisfaction to people. So, the transparency part has been achieved

So, the best are not getting in?

They are now getting used to it. The procedure is transparent according to them.

You had once questioned the legislature’s wisdom to not have an LOP (leader of opposition)? It led to a reaction that you were commenting on the legislature.

No. Absolutely not. I tell you, I have huge respect for democratic institutions. When I walk on the Krishna Menon Marg (his residence), one end opens at Vijay Chowk. As soon as you come out you see the Parliament. I go for a walk early in the morning and when I see that building and the flag, I just bow because this is a democratic institution. When I go to the Supreme Court, you cannot imagine how proud I feel because the Parliament , you know, this is democracy at work. There are certain statutes even today which require— in the selection of  CVC, Lok Pal— the involvement of LOP. So, it was in that context we wanted to know how this problem would be sorted out. The Attorney General has said said they will look into it. Either some amendment is brought in law or something is done because ultimately statutory procedure for selection has to be effective. 

You are known as a man who sends a subtle message instead of taking on a confrontational position. I am referring to your order on 13 MPs in Prime Minister Narendra Modi’s’ cabinet were facing serious cases. You had appealed to the PM’s commitment to the constitution?

We were interpreting constitutional position, article 74 and 75 and in that interpretation obviously, we could not have given any direction to the PM who to select or not to select. It is his prerogative. But the constitutional spirit imbibed in those articles was articulated by us.

Were you worried that these MPs were in power?

Ultimately, in democracy charges and framing is part of judicial process. You can’t tell a person he is a criminal. Ultimately we have jurisprudence—until the trial is over and the guilt is established the person is presumed to be innocent. But still, once a charge is framed, then there is judicial application of mind about the material which has surfaced and that stands on a different footing. That is a judicial process.

Were you guided by the Lily Thomas case on criminals contesting elections?

It is the law of the land and holds the key

Should judges accept gubernatorial posts?

“We were not consulted. One view is, since it does concern the judiciary, we could have been consulted. Ultimately, we look at law.”

My view is whether it is CJI of India or judges of the supreme court or chief justices of high courts, post retirement assignments must be avoided. But the problem is different . I have brought it to the notice of the people who matter. There are many laws in the statutes where commissions, tribunals are required to be either headed by CJIs or judges. That actually needs to be amended and needs to be done away with. As a matter of fact, I have given a suggestion, not in writing to anyone, that to avoid this I have said, before a judge retires, about three months before a judge retires, seek an option from the judge whether he wants to be a pensioner or he wants to continue to draw the existing salary. Once he opts for pension, then he is out and can do what he wants but not any engagement or post under the government. Once you have opted for full salary, that name should be put in a panel. When a vacancy arises, appoint the man in consultation with the CJI. There is absolutely no doubt choosing a person you like can be avoided. The government in consultation with CJI appoints the panel of judges. There is no allegation of appeasement, favouritism, allegations that somebody was trying for a post etc. The idea is if that happens, the credibility of the judiciary is lost. And that must be avoided.

Your predecessor has accepted the government’s offer to be a governor? Is that right?

That is an individual choice. My view is that Chief justice of the HC or SC, or judge of SC and HC must avoid taking any position, constitutional or otherwise, and at least must not accept that position for two years after demitting his office. That’s my view. 

Your tenure saw important judges being at the centre of sexual harassment charges brought against them. You are currently examining them?

The law has come. Certain incidents have come to the fore. There are systems in place and they are working. Maybe some implementation needs to be worked out. In Madhya Pradesh case involving an administrative judge of the court, as soon as a complaint was received by me I asked the CJI to have the matter enquired into. He appointed a committee of two HC judges, one of them was a lady judge, but before the report could be received, a writ petition has been filed in the SC. Let's see.

Does it worry you that charges of corruption and sexual harassment have been brought on the highest court of the land?

Look, judiciary is an institution. Such things are not acceptable, whether sexual harassment or corruption. Even if a single incident takes place, it is a serious matter and has to be tackled and dealt with as per procedure of law.

What do you have to say about judicial activism? People say you are an activist judge.

People say. Like, in America they say, judges do interpret laws and while doing that orders are passed which directly or indirectly affect the people, so this is what is called activism. We actually try to protect the constitutional rights, we try to ensure that constitution is followed not only in letter and spirit. Obviously, everything is not written in the constitution. A lot has to be read. Activism is not the right word. You are only enforcing the constitutional scheme of law and when you do that, it is said judiciary has taken over the function of this and that.

You called the CBI a caged parrot?

(Laughs) I am still dealing with that. It is sub-judice. It is a statutory body. The orders I passed speak for themselves.

What do you have to say to the allegations that some judges have passed orders benefiting the powers that be. Take the case of your predecessor P. Sathasivam and my question is in the context of conversions and the Graham Staines case.

“Where you are sitting, Gopal sat there for 75 minutes. I did my best, but he withdrew consent. Nothing could be done.”

I can't comment on my predecessor. I don’t know what was in somebody's mind and nothing should be read into it. But look, it is is a mater of satisfaction that people are alive to the problems of democracy. People are alive to the events that unfold. People want the judiciary to function in accordance with constitutional norms. If anything is done, perhaps, people have their own reactions. these are matters which draw different reactions. Some would say this is legally wrong or ethically or morally wrong. Ultimately, draw your own conclusions. I have read articles expressing views. When they are being debated, it shows the maturity and concerns of the people.

With the Supreme court examining cases involving the BJP president Amit Shah, there are reasons to believe that steps in the shape of the Judicial Appointments Bill are the answer to control the judiciary?

These are pending matters and I cannot comment. Parliament’s role is to make laws. Parliament exercises power in making laws. It is Parliament’s prerogative to make laws. But when a challenge is made, the Supreme Court is the final arbiter. 

Are you saying this is a challenge?

No. No. Every law is amenable to be challenged in court and court looks into it in accordance with the constitution.

Were you consulted in the drafting process of the Judicial Appointments Bill?

We were not consulted. Yes, look, one view may be since it concerns judiciary, judiciary could have been consulted. Laws when they come— ultimately when the matter comes to court, we look into it. Look, I am happy with the way in which democratic institutions are functioning in the country. I don’t see anybody weakening the other institution.

What do you have to say to senior judges like Markandey Katju when they talk and write about appointment of corrupt judges?

It is a democracy. Everyone has his view. I believe that effective steps can be taken when you are in power and point out the problems. If I say, in this year in the Mumbai HC, the court had this problem. It is not going to help the cause. Ultimately, nothing should be swept under the carpet. You have to continue with the cleaning of the carpet everyday. If you do, you wont find dust under the carpet.

Has the government made any offer to you after you step down?

No, My position is very clear and I have already stated it to you

What could have been done to improve the collegium system?

We could have involved two lawyers, two more judges. Judges know the competence of others in the legal fraternity. Finally, the efficiency of the system depends on those who man it.

Cases go on for years and adjournments have become the norm.

You can't have criminal cases going on for years. Multiple factors exist. Inadequate judges, support staff, infrastructure. I felt the output would be better if we worked 365 days a year. Unfortunately, the Bar felt they would be overworked. My idea didn't have takers.

An edited, shorter version of this appears in print

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