RETIREMENT doesn't sit well on Justice Kuldip Singh. "I'm still a young man of 65. Supreme Court justices should retire at 72, if at all," he says. Controversial, colourful and innovative, Singh maintained a rigid silence outside court during his eight-year term, despite reported differences with Chief Justice A.M. Ahmadi. But now, he has plenty to say.
The tall, hefty, grizzled Justice—dubbed 'lion' because of his characteristic roar—feels his most important jurisprudential contribution was in giving teeth to public interest litigation (PIL). Not content with passing orders, he insisted on closely monitoring their implementation and put the executive in the dock if it did not comply. "That is judicial activism," he says.
He broke new legal ground in environmental law (earning the sobriquet 'green' judge) and gave a fresh dimension to human rights litigation while dealing with alleged police atrocities in Punjab (for which his detractors termed him 'Khalistani' judge). Post-retirement, his crusading zeal has not dimmed and he is teeming with ideas for judicial reform. "The system of judicial appointments should be more transparent," says the former judge, who wants a national debate on the issue. He points out that the chief justice controls the high courts and lower courts by virtue of his power to appoint and transfer judges. The exercise of this power must be transparent.
Singh, who was party to the 1993 nine-judge Supreme Court bench ruling which gave the judiciary primacy over the executive in the appointment of judges, disagreed with his colleagues' view that the chief justice should be appointed on the basis of seniority, rather than selection.
Ironically, he lost the post of chief justice to Ahmadi, when the Government ruled the latter was senior to him. "I was perturbed because I had been given the impression that being a direct appointee from the bench and older by two-and-a-half months, I was senior. But friends like S.S. Ray persuaded me," he recalled. Senior lawyers say there have been frequent deadlocks between Ahmadi and Singh over appointments (the chief justice is supposed to consult his two seniormost colleagues).
He doesn't regret having given up a lucrative practice and the post of additional solicitor-general to become a justice: "It was a rare honour, given to only two before me". But in the last two years, he says, four senior barristers have refused elevation to the Supreme Court. He attributes this to the fact that "after retirement, a judge is rendered a zero" and advocates drastic changes in the service conditions of the judges, not only to attract talent but to promote independence of the judiciary. He also favours more appointments from the bar.
Strong on judicial accountability, he feels "Justices (and their families) should declare their assets at the time of taking oath and every year thereafter". Chief Justice-designate J.S. Verma had drafted rules of conduct but Ahmadi was reportedly not enthusiastic. "I am sure Verma will take it up," says Singh.
The judge dismisses politicians' increasing fear of judicial activism and their threats to curb it. "Parliament is supreme. If they make a law, the judiciary has to accept it. But if the law is unconstitutional, the Supreme Court will strike it down...the power of judicial review cannot be taken away from the court." He disapproves of the lower courts' tendency to make "extrajudicial comments" about politicians. At the same time, he says, they should not get special treatment. He feels that the Supreme Court order, setting up a special court for former prime minister P.V. Narasimha Rao, was flawed: "I would never have passed such an order. You cannot treat people differently." Some of the legislative initiatives he would like to see from Parliament include electoral reforms to curb the use of black money in elections (by demanding income tax returns from political parties, the Supreme Court has done what it can within existing laws), a uniform civil code and an amendment to Article 136 to prevent frivolous litigation.
Allegations that the judiciary is poaching on executive turf annoy the usually good-humoured judge: "We have only made sure it did its job. Often we have used government agencies like NEERI for the purpose. In the last few years, what we have done is to devise new tools to deliver justice to the doorstep of the people." It was Singh who coined the "polluter pays" and "precautionary principle" in environment law, which put the onus of environmental protection squarely on the industrial sector. "He was remarkably bold in protecting the right to life," says environment lawyer M.C. Mehta.
The doctrine of public trust was also coined by Singh. In the Span Motels case involving dubious leases granted by former environment minister Kamal Nath, he ruled that the Government was merely the custodian of natural resources and no functionary had any business using them as private property. Likewise, former petroleum and housing ministers Satish Sharma and Sheila Kaul were made to pay exemplary damages of Rs 50 lakh and Rs 60 lakh respectively for distributing Government largesse.
His boldness and innovative use of law provoked critics to accuse him of passing off-the-cuff orders. But there was a method in the apparent madness, says Mehta. Whether it was putting the lid on pollution around the Taj Mahal or ejecting hazardous factories from Delhi, he was pragmatic. For months, he coaxed, bullied and threatened the Gas Authority of India (GAIL) into giving pollution-free natural gas to the industries around the Taj.
BUREAUCRATS were often hauled up and threatened with jail for tardy implementation of orders. Lazy lawyers who did not prepare their briefs—"I had to work 22 hours a day doing their work for them"—also got the rough edge of his tongue. But he went out of his way to put the common man at ease, speaking in Hindi or Punjabi if necessary. In family matters, he was at his gentlest, persuading husbands not to divorce their wives with a soothing "lai ja, lai ja (take her back)". One infuriated husband struck back with "Taunu pasand hai, tusi lai jao (you like her, you take her)".
At his crusading best while dealing with human rights violations—he handed out unprecedented compensations of Rs 10 lakh to victims and their families—he denies having played into the hands of pro-militant ersatz human rights groups. "All the orders I passed were based on CBI reports," he says. Rising to his defence, lawyer R.S. Sodhi says: "People say he demoralised the Punjab police, fine. What about the fact that they demoralised the citizens of India?" The former judge believes PILs will play an important role in safeguarding the rights of citizens in future. "I do not believe it is being misused. It is the Supreme Court judge who decides whether to act on a PIL or not, so where is the question of arbitrariness?" If nothing else, Singh certainly livened up the social lives of his fellow judges. "Before me, Supreme Court justices used to live in glass houses. It was an unwritten rule that they should not socialise. I broke out of it completely." Soon after he took oath, Singh popped into the Supreme Court Bar Association for a celebratory laddoo. The press frowned. "I will do it again," he told his critics. And he did. Fond of scotch and convivial company, the former judge now plans to spend time reading, writing books, lecturing and setting up an NGO along the lines of Greenpeace. Given his fondness for a chhota peg, it seems odd that he should have chosen to quit Delhi for a kothi in 'dry' Har-yana's posh Panchkula. Alas, he says, it's the only house I've got. But he can easily hop over to Chandigarh for a quick few. Asked about the Punjab chief minister's threat to impose prohibition, he snaps: "It wouldn't work. There would be a bhatti (still) in every house". Law must, after all, be pragmatic.