Former Supreme Court judge V Ramasubramanian on accountability for a judge, the role of the Supreme Court in maintaining checks and balances and the changing work culture within the judiciary. The session was moderated by Apurva Vishwanath, Senior Assistant Editor, The Indian Express. Apurva Vishwanath: Over the last few years, judicial evasion or delay in hearing crucial cases has been a point of conversation. A landmark ruling you delivered, striking down the RBI circular on cryptocurrencies, was an exception. How do you see that? I don’t think it is actually a part of judicial evasion. In certain cases that are listed, pleadings get completed on time, lawyers are ready, they actually press for early hearing and the subject matter provokes an interest as well as a sense of urgency in the mind of the judge. For instance, in the case in which a challenge to the RBI circular was made, the notice had been ordered even before I joined the bench of the Supreme Court; I found the subject matter quite interesting. The bench was headed by Justice Rohinton Fali Nariman. As it was a highly technical matter, Justice Nariman would, in normal circumstances, have authored the judgment. But looking at the interest I was showing in the subject, he encouraged me to write the judgment. How a case gets listed before a bench and to what extent the lawyers on both sides cooperate for an early hearing determines whether it falls under the category of judicial evasion or judicial invasion. Apurva Vishwanath: It is the Chief Justice who assigns and lists cases. As individual judges, are you conscious of the inordinate delay that we see in so many of them? We are conscious of this. But there is no deliberate delay. I was Chief Justice of a very small High Court (Himachal Pradesh); I managed the roster there. I found that a huge batch of 250 writ petitions challenging a policy of the government had been heard by a Bench before I assumed charge. But the Bench could not deliver judgment because one of the judges had retired. I started hearing this batch and the hearing had advanced considerably, just a week before the Supreme Court Collegium recommended my name for elevation to the Supreme Court. Now, my dilemma was whether I should or should not complete the hearings and pass judgments expeditiously before the warrant was issued. There can be two reactions. One reaction: Why was he in a hurry to finish? Some can say that it’s justice hurried and buried. The petitioners can say, “What is our fault. Someone gets retired, another one gets elevated, the next man hears it and he gets elevated, so where do we stand?” How a case gets listed, how it gets out of the list, or how it gets decided is very complicated. In a democratic country, it is quite natural that if you don’t get elected, you will speak the language of democracy. If you get elected, you will speak the language of power. sometimes, hate speech gets away under the banner of free speech Apurva Vishwanath: You were on the Bench which disposed of the sexual harassment inquiry (into charges against CJI Ranjan Gogoi). Were there full-court conversations later? People should know that the endeavour of every inquiry is to find the truth. But I think we have become more focused on procedure than on actually seeking what is the truth. Today, if a person can create a false narrative and can take care of procedure, he can enthrone falsehood. If a person does not take care of procedural safeguards, the truth itself will become the casualty. In the case of Chief Justice Ranjan Gogoi, I will boldly say that he was not at fault. Nobody knows what is true. Truth is stranger than fiction. I know the truth. He is innocent. The Englishman taught us that justice should not only be done but should also appear to be done. So, now, our focus has shifted from doing justice to making it appear that we are doing justice. For a person who is not able to make it appear that justice was done, we mistake him to be a person who has done injustice. Raj Kamal Jha: The complainant is not here to defend herself. What are we concerned about? There are certain areas where you will say we will not enter, like privacy. Where do you draw a line? A seeker of truth will have the insight to shift the focus from mere procedure. Unfortunately, we are focused mostly on procedure. Therefore, people who are clever and create a narrative, escape the guillotine and an innocent man is crucified. Apurva Vishwanath: What then is the level of accountability for a judge, both in his private life and in court? It depends upon his conscience. The problem today is we don’t have a national judicial accountability commission. I don’t know if it will really improve things even if it is there, because judges need independence. At the same time, we also want them to be accountable. Suppose, somebody is able to dispose of thousands of cases without delivering any quality judgment, how do you compare him on any scale with a person who has taken up complicated cases and decided on a few of them? What is the scale on which you measure performance? We have had judges who have disposed of a huge volume of cases like playing IPL matches and we have had judges who have concentrated on laying down the law. They will pick up complicated cases, take a little longer and decide on them. So today, litigants may want IPL matches in courts. Ultimately, they are interested in the last line of the judgement. But that is not the purpose for which a High Court judge or a Supreme Court judge is appointed. He is supposed to lay down the law. For instance, in the cryptocurrency judgment, it took about a month for me to completely understand a new subject and lay down the law. If I had not spent one month on that one statement, I could have disposed of another 100 run-of-the-mill cases. What is the scale on which you will measure performance? We have had judges who have disposed of a huge volume of cases like playing IPL matches and we have had judges who have concentrated on laying down the law Shyamlal Yadav: SC judges are required to disclose their financial assets but hardly any judges declare them publicly. Why is that? I gave mine to the CJI. Even today, I have no objection to my statement of assets going public. Because, on the date of retirement, I only had a liability in the form of a housing loan. The problem with the declaration in the public domain, according to one view point is why should my spouse’s and children’s assets be known in public. That is the principle on which there is opposition, which is why it gets stuck. Harish Damodaran: There is a tendency of the judiciary to get into highly technical matters, genetically modified crops for instance. Should they be entering into this? I would welcome it if the judiciary is not drawn into all that. But there is a difference between the judiciary entering into an unconnected field and the judiciary being dragged into an unconnected field. Here the problem is once you are dragged into an unconnected field by litigation, then you have to decide it. Monojit Majumdar: Would that also apply to judges deciding what the essential practices of Indian religions should be? You are not theologians. I subscribe to your view. But unfortunately, other than disputes which the courts normally should be called upon to decide, people drag the courts in all directions. The judiciary all over the world is today dragged into disputes which they are not actually competent to decide. Have you done a survey of cases of ordinary people, other than activists, who have been imprisoned under UAPA and if the courts have come to their rescue?. They are unsung heroes, so we don’t count them Shyamlal Yadav: There is a perception that the higher judiciary is run by a small club of the Collegium. How much are diversity and inclusiveness considered when deciding names for elevation? I really don’t have an answer to the question of inclusiveness when it comes to higher judiciary. But, from my experience in the Madras High Court, in the selection of judges for the district judiciary. I can boldly say that there is more inclusiveness. In fact, in a selection entrusted to me in 2011-12, only one person from the unreserved category was selected out of 174 vacancies which were notified. All the others were from the reserved categories. When such district judges and High Court judges get elevated over time, the inclusiveness that you are talking about would have been achieved. Manoj CG: Since 2014, has the judiciary, especially the Supreme Court, played the role of an institution that maintains checks and balances? At any point, was there any pressure, overt or subtle, to make a judgement? From my personal experience, I can tell you that there is absolutely no pressure. I have worked in the Supreme Court for three years and nine months, and I can say that there has never been any pressure. About the first part of the question, there are two issues with regard to checks and balances. There are certain areas where we accept checks and balances and certain areas where we don’t. Moreover, some people may have a particular view on a particular policy. There is a difference between a judge who is pro-establishment and a judge who is ‘pro-this government’ or that government. For instance, I hail from a lower-middle-class family. As a student and lawyer, I never enjoyed any comforts of life. So, I have a particular attitude. I was never a corporate lawyer. When a huge industry is pitted against Revenue like Customs, Income Tax, Central excise or GST, my DNA is such that it leans in favour of the state. It is not because this government is in power or that government is in power. Suppose there is a lawyer who has always been a corporate lawyer representing big clients, he may think every assessment order is a product of oppression. I don’t think there is anything wrong in being a pro-establishment person because when I deprive the government of some revenue, I don’t think I’m depriving the government, I think I am depriving the poor man. I am depriving myself of what is due to me. Manoj CG: During hearings in high-profile cases, we hear judges making candid observations. But it doesn’t reflect in the final verdict. How many of you, as journalists, have fully read any judgment which interested you? The problem is partly with you and partly with us. When I fire a salvo against the establishment, that becomes very attractive. One of the judges in the Madras High Court once made a remark, which made headlines. When he came to Delhi, he asked me, ‘Sir, did you read any of my judgements?’ I said, ‘I read some of the headlines you made, not your judgements, because that is what is getting reported. Your judgments are not getting reported.’ I told him that a judge’s job is to write judgments reportable in law journals. It is not his job to write headlines for newspapers. Apurva Vishwanath: We have seen the IPC being routinely weaponised to freeze free speech and anti-terror laws are being invoked against critics. How do you see this? How do you reconcile between free speech and hate speech? In a democratic country, it is quite natural that if you don’t get elected, you will speak the language of democracy. If you get elected, you will speak the language of power. No democratic country is an exception to this rule. In a country like ours, with so much diversity, free speech becomes hate speech many times, or hate speech gets away under the banner of free speech. Monojit Majumdar: Will Udhayanidhi Stalin’s Sanatana Dharma remark be considered hate speech or free speech? If I am a believer of Hindu faith, a Sanatani, I get hurt and consider it as hate speech. If I am a non-believer or belong to some other religion, I consider it’s free speech. This is the problem, we are guided by no clear-cut legal principles. We are guided by what we believe, which is the problem. People think if you’re somebody, say a minister, your speech should be restrained. If you’re an ordinary citizen, no restraint. Application of different yardsticks — depending upon who said it, against whom it was said and where does he belong — has created problems, because the statement gets tagged with the motive. Aakash Joshi: UAPA is a stringent non-bailable law that’s now applied widely. In constantly weighing in on national security versus rights, what are the challenges before a Bench? What are the types of cases where you think the judiciary has not lived up to its expectations? Maybe the high-profile cases of some prominent persons. Have you conducted a survey of cases of ordinary people other than activists who have been imprisoned under UAPA and whether or not the courts have come to the rescue? I have myself passed several orders, granting bails to many such people. Because they are unsung heroes, we don’t count them. Aakash Joshi: Senior judges, sometimes even Justices, seem to take positions which are Central appointees almost immediately after retirement. Do you think that questions their last few judgments because it seems like a quid pro quo? There are a lot of posts for which only retired Supreme Court judges are eligible. For posts which fall outside that, you may be right. Shahid Pervez: There has been a widespread perception among vulnerable communities that even the Supreme Court is not really dealing effectively with cases of discrimination. How do you see this? More than 60,000 cases are pending in the Supreme Court. All these cases belong to different categories. There are cases of civil disputes, matrimonial disputes and persons who have been imprisoned and convicted. For instance, I had the case of a person convicted of rape and murder of a six-year-old girl imposed with the death penalty. He had already spent about 14 years in jail for a case with no evidence. I delivered a judgment acquitting him after 14 years. Every litigant is interested in his own case. Do you want higher courts to focus selectively only on some types of cases and relegate all other cases to the background because these are the only cases which matter? P Vaidyanathan Iyer: Kiren Rijuju and Jagdeep Dhankhar have been talking about the basic structure of the Constitution and the Collegium system. How should the judiciary respond to this? In so far as the basic structure is concerned, my view is that it will stay. But I have a different take on the Collegium system. Today, the problem is, we take positions depending upon the position taken by other people. My view is that the Collegium system definitely needs a relook. I have seen how it operates. You can’t support it today after having opposed it earlier because somebody else opposed it today. Raj Kamal Jha: How prevalent is this view of yours in the larger court? Many judges think that it (the Collegium system) needs to be relooked. The problem is what view we have does not get reflected unless a particular case comes up before us. Apurva Vishwanath: What is the one thing that worries you about the judiciary and what gives you hope? The one thing which worries me is the work culture. All judges should be on time and be committed to work during court hours. After court hours, you have to spend time reading the papers, writing judgments, etc. Your work does not stop in court, it continues at home. Previously, judges would put in more than 80-90 hours. That kind of mindset is not there in some judges at different levels. What gives me hope is that we also get excellent judges who are very committed. Every time a new judge gets appointed, I (in a lighter vein) say, ‘Why does the bar give a good welcome to newly appointed judges?’ It’s because they follow what Tagore said: The birth of every child convinces me that God had not lost hope in man.
Justice Ramasubramanian at Idea Exchange: ‘We have become more focused on procedure than on actually seeking the truth’
