You have remarked that the four judges who raised serious questions about the administrative functioning of the supreme court should be impeached. What made you ask for such an extreme action?

When I said that the four judges should be impeached, my opinion was based completely on judicial discipline. The damage they have caused to the functioning of the judiciary itself is such a great offence that they disentitled themselves to continue to be the judges of the court.

But they say they had raised the matter before the CJI two months ago but he did not address the concerns.

I don’t believe that the four of them had to do it together. This is not a trade union. You cannot make allegations and run away. You can meet once or twice in a month and address these issues. The issue of ‘bench fixing’ can be addressed by the full court. But when you air your grievances [in public], the CJI will be on hold and on notice. If you go to the press for a ‘janata ki adalat’, do you think the janata will rise and tell the CJI how to run the court? If they had genuine grievances, hundreds of things [options to air them] are on the judicial side. If everything else had failed, why not bring this to the notice of the president of the republic and the president would have brought reference to the court. I felt that this was most unbecoming of judges of the highest court. You don’t need to be ruffians.

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Will it have wider ramifications? Can it set a wrong precedent for other courts?

You know, I heard about a judicial coup for the first time when Punjab and Haryana high court judges went on strike. I thought that was the worst thing in the history of the judiciary. I had opposed it but that was within the brotherhood of judges. However, I later found that those who were leading the strike were ultimately made the judges of the supreme court. It was a greater shock to me to see the way the collegium system was working. However, I reconciled with it, like everything [else]. Here, I find the same thing being done by supreme court judges. They stage a revolt or mutiny against the chief justice and other judges. They mean to say that they are the only ones capable of hearing the cases of importance, or the cases of importance are safer in their hands than the rest of judges. My question is: Are the rest incompetent or is their integrity questionable? What is it that they [the four] can do and others can’t?

The four judges have said the cases are assigned to junior judges.

Alright, they also said the chief justice is first among equals. When you are all equal, how can you be senior among equals? The chief justice is the administrative head and he is of course higher [in hierarchy]. His salary is more. Otherwise, all of them have the same salary and same powers. So only administratively, one is senior and junior; [only in matters] like who will get the first new car and first choice of bungalow or who will head the bench. The next man with you can differ with you, so where is the question of senior and junior? So all judgments are judgments of the supreme court under the signature of the chief justice of India, not of A, B or C. That’s why I believe [the four judges’] premise was incorrect.

A new constitution bench has been formed and the four senior judges have not been included. Do you think it will solve the problem or will it further complicate the matter?

There can be no problem. Every judge has limited powers and that can be exercised individually or collectively. Judges are not gods. Tell me, is there any written law or any convention that a constitution bench can’t be formed without senior judges? Let me tell you that this is not even convention. So can you say that what the chief justice has done is wrong? So it is the discretionary power, though I understand it should not be arbitrary. Yes, some former chief justice has advised that at least one senior judge should be on the constitution bench. But who am I to say that he can’t form the bench this way or that way? Please ask these judges if, when they were exercising the power in high courts, they did not do the same thing? Don’t assume that you have been threatened or overlooked because somebody else has been given a particular work. The supreme court runs on committees to administer the whole thing. The collegium is also a type of committee of the first four judges [the four senior-most along with the CJI], but how are they better than the last four? So get it out of mind that someone is a junior or senior judge. To my mind, the chief justice is the only one who is senior by name, pay and authority.

But isn’t it unethical on part of the chief justice to hear or allocate a case in which he has been named?

I don’t think so. When this matter came to the chief justice he passed it to on to some another judge. Now those who are making allegations against the chief justice are imputing that the case is being transferred to a  judge of low integrity or calibre. This is being very mean to the person who is deciding the case. There should not be kite-flying without any substantial evidence. I can’t be party to it.

Does the episode underline the need for revamping the judiciary?

It has brought forth various flaws in the administrative functioning and also great flaws have come out to show the very intake of judges, the nature and quality of judges who are being appointed through the collegium system. I believe the judiciary must also be remodelled like any other institution.

Critics say the judiciary has insulated itself from other wings of the state with the collegium system.

I have always expressed my doubts about the working of the collegium system. I have maintained that the supreme court has reserved the powers and transgressed gravely into the constitutional authorities. This was not the message of the constitution and there has not been any amendment in the constitution as required by the law. Therefore, what is happening in the judiciary is the consequence of how things have been manipulated or moved.

Do you believe the chief justice should not have the discretionary power to allocate the cases? Should there be a committee of senior judges for allocation?

We have discussed earlier how the collegium system is bad. So if the collegium system is questioned, then how will a committee of judges always give right decisions? If you have to assume that anybody in the judiciary is beyond any question … if you don’t go by this premise then you permit yourself errors. When I say zero tolerance, then where is the question of appointing him or anybody else?

pankaj@governancenow.com

(The interview appears in the February 15, 2018 issue)