‘If foreign investors have to come, they must have confidence. Disputes must not be pending for years’

Y. K. Sabharwal; Former CJI
January 23, The Hindu

• Will you give the credit — of not feeling pressure, subtle or unsubtle — to the political class?
Yes, but I’ll also tell you: If you succumb to pressure, there will be more and more pressure.
• Because the political class says, ‘Look, our record has been very good. We have not interfered except in the phase of the Emergency. We’ve let the courts be.’
They have not interfered at all.
• I’ll tell you a little anecdote. Nawaz Sharif, when he was Pakistan PM, with a two-thirds majority, once asked me, “Does the judiciary interfere in your government matters as much as it does here? Every time I take a decision, somebody goes to court, and they call me for questioning.” I said that is the job of the judiciary. He said he would pack the bench with his own people. And I said if a general takes over tomorrow, you will not know where to go to because they will cross over to the other side. He dismissed me then. He told me a couple of months ago, “You were so right. If I had solid judges whom I had allowed to question me, they would’ve questioned the general also”.
I can tell you, as far as the Indian Constitution is concerned, and in most democracies, there are a few rights, which — notwithstanding two-thirds or three-fourths majority, or even unanimity — cannot be tinkered with. The majority may say something, it may even be a hundred per cent majority, and there is legislation which may be passed unanimously, but if it is against the Constitution, majority is immaterial.
• But then the political class has to accept the principle of the Constitution, that beyond this, the majority doesn’t matter.
They do accept. They may have a political compulsion to assume a different public posture, they may be addressing different constituencies. But in one-to-one talk, they all...
• But they like to pass the buck to the judiciary. There are so many difficult decisions.
That may again be part of their compulsions.
• They are cleverer than the judges, isn’t it? They can pass on difficult issues to you — from Ayodhya to privatisation.
Many of the political issues have been coming up before the court in recent times. Today there’s hardly any state in the country where there’s no dispute on water. All the disputes are before the court. We have repeatedly said that these are matters that should be decided, every attempt should be made to decide them, at the government level. And you must accept the position of the prime minister. And then you must have the political stature to go and tell the people.
• But there is a tendency to pass it on to the Supreme Court.
Probably their compulsion may be that if the court has ruled one way or the other, it’s all right — but if a political person has ruled, they may find it difficult to accept. In the courts there are provisions that these types of disputes should be tried by tribunals.
• But politicians have that fleet-footedness that they first send the problem to you. If there’s a solution, they can fire the gun from your shoulder. If they can’t, they again pass a law and put it in the orbit.
No law permits them to nullify a judgment by removing the basis of the judgment by passing the law.
• You know politicians have a lot of flexibility. All of them in public showed sympathy for those whose properties were being sealed. Did you feel frustrated?
One does feel frustration because you do feel the problem that people are likely to face, and they include some of your very dear friends, some very close family members.
• Was this the toughest case you handled?
Toughest, but not from the legal point of view. Cases, whether this one or those that have direct impact on somebody’s earnings, are tough. Another case that comes to mind is that of the petrol pumps and gas agencies when I was a high court judge. Then it is your duty, your oath, that you have to implement.
• Both were Indian Express stories, if I may say so.
So many people came to court. When these cases come to you, they are all difficult cases because of the human aspect. Some 4-5 years ago, an air-hostess came to me and said, “Sir you were responsible for my sister-in-law’s cancellation of petrol pump. She was a war widow.” I said, “You tell me how did your sister-in-law get it? You took the application, went to the minister and got the order?” She said, yes. I said, “Please tell me one thing. Do you know how many such war widows are there in the country? Simply because you had access to the particular minister — he granted it. But think of the others.’’ These are difficult cases.
• Sir, on the sealing case, were there times when you thought this had gone out of hand — when there was violence, bitterness in Delhi?
Not just me but also my predecessors have said in judgments in the past that rampant corruption is one of the main reasons why these types of transactions take place. Otherwise, how can such blatant illegalities go on? Either don’t have the law. If the law is implemented, have proper regulation in place. Implement the law and have a level playing field for everybody.
• In the last few weeks in your tenure one of the things that stood out was this continuous confrontation with the government on the forest bench. Now the government says, how can the SC tell us whom to appoint on a committee.
That is sub-judice.
• But is there something that turned unpleasant?
There is nothing personal about it, and out of court, one forgets about it. And we don’t say that wisdom lies only with the judiciary. Wisdom is everywhere — judiciary, lawyers, government, executive, and with the media also sometimes. I have always said, except in some areas, media has done a great service. That’s the reason we have emphasised the freedom of the press.
• We are grateful to the judiciary. In fact, if we look at the Indian law and Constitution, there are specific laws granting us freedom. But our freedom is guaranteed by the way SC has interpreted our Constitution.
I have seen what happens, the price one has to pay if freedom is not there, as during the Emergency. Therefore, in fact, losers are those who pose these type of restrictions. They don’t know the ground reality.
• That’s our Nawaz Sharif principle. If he had an independent judiciary, they would have protected him. He corrupted his judiciary and they crossed to the other side.
Ultimately, it is in everyone’s interest. That is why the Constitution and our founding fathers have laid so much emphasis on the independence of the judiciary.
• You said one should keep cool, not get emotional. Give me a couple of examples when you got angry or emotional on the bench.
Sealing was one. I said I’m sorry, number one, these are all commercial considerations. It’s all right now, you put forth your employees’ cases, everyone will be out of job. But when establishments are set up, they are not set up because of the employees. At the very start itself, the initiative is based on illegalities. You get a land plan for a residential house. While construction is on you go and see it being constructed as a commercial building. Then when I and many other members of the judiciary feel that such rampant illegality exists, the reaction comes in. And then it is projected as the suffering of the people. Then you call it judicial excess.
• Last year you said the time has now come for the judiciary to shed its aloofness and to strike alliances with civil society groups, to reach out to the poor. Justice J.S. Verma said that activism is like a surgical scalpel, it should not be employed like a rampuri knife which could kill people. Justice Anand said sometime back that the judiciary’s main job is to interpret the law. It should not get into a confrontationist mindset vis a vis the executive. So how does your view level with theirs?
I would not like to comment on anybody’s statement except in general. Justice Anand is right. There is no question of any confrontation; we have to interpret law.
But going back to your main question. That is a statement I must have made in connection with access to justice. When you talk of justice it is also included in the various schemes, which have been formulated, some by the Centre, some by the states, some jointly.
• The question of access is important for a lot of citizens.
Yes, they must be made aware of their rights.
• Often, the process becomes the punishment.
This is a problem for the real sufferers — the downtrodden who cannot raise their voice because of financial problems. They are afraid to speak to the district headquarters, what to talk of the state courts or the SC. Students after their classes, magistrates and judges after court hours, lawyers after and before court, must interact with villagers and tell them about their rights.
• Sir, the criticism from the other side is that the judiciary wants to reform everything, but not themselves. You had a few brushes with controversy on appointments, for example. Tell us a little about what really happened with Justice Jain and Justice Bhalla.
I have already spoken about them. Justice Jain has been a judge for 14-15 years. The marriage of the granddaughter of Hariram took place in the lawns of the official residence of Justice Jain — this was year 2001. The same Hariram’s case was decided by Justice Jain in 2004. This was the charge. Unfortunately, I think the media knew, and they also ought to have put it out, that this Hariram was father-in-law of one of the colleagues of Justice Jain, Justice Arun Kumar. It is customary in Delhi High Court, when your colleague requests — look my father-in-law or granddaughter...
• ... to let out the lawns of your house.
Yes. So Justice Arun Kumar — who later became Chief Justice of Rajasthan — became a judge of SC, and on his asking, the lawn was lent, and the marriage took place. It seems there was some property dispute between Hariram and his brother that landed in the court of Justice Jain. Three years later, he decided the case. Now to expect that he should have read “Hariram, whose same granddaughter got married in my house’s lawns, the same Hariram who is father-in-law of Justice Arun Kumar, and therefore, I should not hear the case” — I think it’s an impossible task. Nobody can do that.
• So you were convinced that he had no way of knowing.
Obviously, nobody can know. And the complaint of that person had been rejected — I rejected it. And that was a long time back, when Justice Lahoti was Chief Justice.
• So would you say that somebody was misguided in this case — in Rashtrapati Bhawan or in the government — because of which it took so long, became an unsavoury controversy.
I don’t know about that because I am not in Rashtrapati Bhawan. I’ve put it all on record.
• But there was no tension between you and the president?
No, there was no such tension.
• And there were some suggestions of some collegium having been changed or expanded for this to happen. The reason I am asking you this is because many of us — the citizens — think that we all have a right to know how the judiciary works.
This is all because of lack of proper information. Now, if a Chief Justice instead of just consulting one and two also considers or consults three and four, I should have thought it’s a welcome gesture. But anybody can have his or her own opinion. So, there is no changed collegium, but everybody is entitled to their views. And differences of opinion should be welcomed but ultimately when a decision is taken it’s examined and then implemented.
• But you are generally satisfied that the system of appointment of the judges is sound?
I feel so, but please bear in mind that no perfect system has been found so far in the world. Every system makes improvements. I had to lead the strike in 1986 because Justice Chawla was not being appointed in Delhi because he was too independent, too fearless, too honest.
• Some of these tensions are part of the maturing of the system, isn’t it? For example, the other aspect of appointments is just, I believe, the lack of good judges. We aren’t getting good talent onto the bench.
Unfortunately we find it difficult to convince many of the good youngsters to come over and serve the judiciary. Frankly speaking, many whom we want, they politely refuse and many whom we may not want, they go on pestering.
• And what are these talented young people afraid of? Is it they don’t want to lose their lawyer’ incomes or they don’t accept this sort of cloistered life of a judge?
Basically there is too much of a gap because I understand that earnings are phenomenal as lawyers.
• It’s also the loss of social life. Someone as gregarious as you must have suffered coming to this sort of anonymity of the bench?
Yes, we do get used to it.
• You had an active social life?
I had. If you read M.C. Chagla’s Roses in December, he said that all important decisions of the mind were conveyed to him while playing bridge at the Wellington Club, Bombay. He was the Chief Justice of Bombay, but today a Chief Justice cannot think of going and playing bridge, even if he has time...
• Because half a dozen people will go around the city saying, you know — they won’t say Justice Sabharwal, they will say Billu Sabharwal — plays bridge with me.
So, because of these things...
• And I believe you had that doubt before you accepted the bench?
I had that doubt. In fact, I used to play bridge. Now I may again get the opportunity to play bridge.
• Sir, have you got the feeling over the past couple of years that on issues of economic reform the judiciary is way ahead of the political class? So many of your judgments have been so reformist and you have upheld many reformist decisions — from Bombay mills land, airports, PSU disinvestments...
I’ll not like to be a part of this exercise of comparing who is ahead or who is not, but there are a few cases which do deserve to be on the fast track. Any cases related to reform should be on the fast track.
• Infrastructure development, for example
I have said as the Chief Justice that if in the present economy, a foreigner or foreign investment has to come, he must have the confidence. Disputes are bound to arise, but those disputes must be resolved in a reasonable time. They must not be pending for years. The world has confidence in the independence and impartiality of our judicial system.
• Not so much in its speed though...
But even on speed, many of these decisions which have taken place right up to the Supreme Court were decided within a reasonable time. We have to keep pace with the changing time. Can we say, sorry, we cannot give any priority to these cases? The entire development process will come to a standstill.
• So issues like infrastructure, building a new India, economic reform must get precedence.
Steps are being taken. Alternate dispute resolution mechanisms are being created.
• And you have found sufficient unanimity within the bench on this?
It is there, but the lawyer class must... surprisingly they are coming around because none of these reforms can succeed — really, I am laying emphasis particularly on alternate dispute resolution mechanisms and more particularly on mediation — until and unless the lawyers come wholeheartedly on board.
• As long as lawyers make money on appearances and adjournments...
They have to think that it’s not a money-making machine. It is not a part of the duty of the lawyer to enter into arrangements to delay the case. He has a duty towards the client, a duty towards the court and a duty towards the society.
• But the speed with which some of the cases have moved — the Bombay Mill lands case, the airports case...
If they had not moved, what would have happened to the infrastructure?
• Do you wonder about how at the end of your tenure you may be remembered more for the sealing but not enough for these things? Who had seen the Indian judiciary move at this pace? These cases have gone through the High Court, the Supreme Court within a year, a year and a quarter.
How I will be remembered, doesn’t worry me much. I strongly believe that if you continue walking on the right path, everything will fall in line and whatever sufferings there may have been on account of sealing and other such orders are only temporary. Whenever we decide cases one party or the other is bound to be aggrieved. I have been receiving letters from those whose properties got sealed or those who are going to be affected. But let me tell you that I have also received thousands of letters from others. In fact many wanted to meet me saying that you have made life livable in Delhi. Both things don’t matter to me because I am not a politician. I have to decide the case in accordance with law, according to the Constitution. So, how does it matter whether or not you are remembered and if remembered, for what. At least you have the satisfaction that you were true to the oath you had taken.
• But at the same time you have the satisfaction that you will be leaving behind two legacies. I won’t say activism as much as an activist or liberal interpretation of the law. Pushing the envelope on the law.
Liberal interpretation ultimately is in the interest of the nation’s development and can be possible only when two interpretations are possible. There are cases when two interpretations cannot be possible. It is where discretion comes in that it must be used for the maintenance of the Constitution and its values, and for development, which is a changing thing.
• The other legacy is the way the judiciary has gone ahead on issues of economic reform and infrastructure development.
I addressed it, I have said publicly that these cases do deserve to be put on the fast track and in fact when I took over I sent a letter to all chief justices insisting that these are some of the cases...
• What kind of cases? Because we haven’t heard about that letter yet.
My main emphasis in that letter was the criminal justice delivery system. Also, cases of those who are poor and cases of corruption against the high and mighty — be it a politician or bureaucrat. And then civil cases of the nature you have mentioned. Arbitration cases, both international and national, and developmental cases. I have spoken about it, written about it, but I have also said that every chief justice should be left free to take up his priorities on his own.
• So, no hand-holding. We know you will be remembered for a very significant tenure on the bench. While you may or may not get to play a game of bridge now, people won’t let you be in peace because there will be no such thing as retirement now. There will be committees, commissions, arbitrations, and there will be speeches. So one is looking forward to seeing a lot more of you. Thank you and congratulations on a wonderful tenure.
Thank you very much.