Judges should strike down executive actions that are unconstitutional, says Justice Deepak Gupta

Justice Deepak Gupta retired from the Supreme Court on Wednesday and became the first judge to have a farewell via videoconferencing due to the Covid-19 lockdown. An articulate judge, Justice Gupta has in the past spoken about why dissent is essential for a society to function well. In this interview to Scroll.in, he talks about several controversies that rocked the court over the last two years, including the sexual harassment complaint against former Chief Justice Ranjan Gogoi. He also said the report of Justice AK Patnaik committee that investigated the alleged fixing of Supreme Court benches should be placed before the relevant bench.

Excerpts from the interview:

You have said appointments to higher judiciary should solely be on merit. But there is criticism that the higher judiciary including the Supreme Court, is dominated by upper castes. There was a nine-year gap in appointing a Dalit judge to the bench.
When I say merit, I refer to the different categories that have to be represented. We are a big country. If we go strictly by merit, we will have judges only from a few High Courts. The big matters are argued in four or five High Courts. It is not that merit doesn’t exist in smaller courts. We need more women judges. We need to ensure representation to Scheduled Caste, Scheduled Tribe and Other Backward Classes to make it truly the Supreme Court of the entire country.

Has the time come for reservations in the higher judiciary?
I am personally against reservations at the very high level, whether it is judiciary or other places. I am not in favour of it.

There is also a feeling that there is nepotism in the higher judiciary. That members of certain families, invariably upper caste, in the legal profession get preference on the bench and in the bar. And that the court has not done much to break this stranglehold.
I don’t think nepotism is the right word. I don’t think nepotism in the sense we refer to the term exists. But what happens is, the legal profession is a patriarchal form of profession. The children, more often than not, join the father’s profession. When they do, they have a head start over others.

I joined the profession in 1978, nine years after my father died. But I still had some advantage that those who have no connection to the profession do not. Those who have the connection get referred at a very young age and so find more cases. That reflects in the bench as well as they do more cases. Though I don’t call it nepotism, I do agree that the system is not much in favour of first generation lawyers. But having said this, I should say the Supreme Court has a number of first generation lawyers as judges.

Have the judges discussed remedies to neutralise these privileges?
We have not discussed it nor decided it either way, that is to promote it or discourage it. Personally, I can tell you that when I was chief justice of a High Court, I turned down one or two proposals for elevation as there were already judges in the family, though the candidates may have been deserving.

The Supreme Court collegium has faced a lot of criticism for being opaque. Recent case is the transfer of Justice Muralidhar to Punjab from Delhi. Other transfers in the last two years have also attracted a lot of criticism. The court dismissed the National Judicial Appointments Commission but the memorandum of procedure for judicial appointment is still stuck in limbo. Why is there no urge to reform the collegium system?
As far as Justice Muralidhar’s case is concerned, I had asked one of the judges in the collegium and I was told that he is being sent to the Punjab and Haryana High Court as the second senior-most judge and could become a chief justice at some point. But I agree there are certain issues. As per the NJAC judgement, there has to be a good secretariat attached to the Supreme Court. In case of the High Courts, at least six months before the vacancy arises, the process of finding a replacement should start.

In my opinion, the most important reform should be objective evaluation of the candidates. What are the judgements the person has delivered if a judge is being considered, what are the cases they have argued, if a lawyer is considered, the nature of arguments and such things. We should not wait for the government to make a recommendation. The collegium should be ready with options through such objective evaluation. The level of vacancies at the moment is ridiculous. It is ridiculous to expect the High Court to function with such a level of vacancies.

This brings me to the Intelligence Bureau reports placed before the collegium. The IB is a wing of the government and has vested interests. The reports are a powerful tool to degrade the reputation of a candidate if such a course of action is found to be in the executive’s interest. Has the time come for the court to do away with these IB reports?
The government does rely on IB reports. But sometimes the reports are not correct, sometimes they are also correct. I don’t want to denigrate the entire IB by saying they do only as they are told by the executive. Chief justices do ask some dependable police officials to verify personally and report on the candidates before we send the recommendation to the Supreme Court collegium.
You see, we don’t independently have a mechanism to ascertain the antecedents outside the court. Something like whether the person has indulged in some immoral or illegal activities or has undisclosed properties is something which the court can’t ascertain. Many times, IB reports make vague allegations. So without specific evidence, we do not bank on them. But we have to rely on the IB to a certain extent for integrity assessment.

There have been demands for benches of the Supreme Court in other parts of the country and also that the Supreme Court should only deal with Constitutional matters.
I don’t agree with the first demand. I don’t think circuit benches or permanent benches are the answer. Even in the High Courts, circuit benches do not function as expected of them. If you set up one bench of the Supreme Court, say in South India, other regions will also ask. I think the better option is to expand the use of technology, like how we are doing during the Covid-19 lockdown. We can have e-filing and e-arguments so that people can access the court from where they are.

But I agree that between the High Court and the Supreme Court, there could be a court of appeals with regard to things like criminal matters, service matters and such. If that is done, we could even reduce the strength of the Supreme Court to nine or 11 judges who hear only Constitutional matters.

You have been very vocal about the need for dissent in the society. There have been demands for reforming the contempt laws. As a journalist, I can tell you that the contempt laws hang over our heads like a sword. We are forced to be too cautious when commenting on the judiciary and this sometimes leads to self-censorship. There is a feeling the contempt laws are not used very objectively by the courts. What makes an Indian judge so special that we need a contempt law of this manner?
I don’t want to respond to this question because my last judgement was on contempt. I had convicted some lawyers. Since my judgment may be subject matter of review in future, I do not want to comment on it.

For the last two years, Attorney General KK Venugopal has been pointing out that the judiciary is overstepping its boundaries and going into the domain of the executive. In particular, he has spoken strongly about the use of Article 142 [which gives the Supreme Court powers to pass any order to achieve the ends of justice] and concepts such as constitutional morality.
I have great regard for the attorney general, who is a doyen of the bar. But I do not agree with him on all counts. You see he has also appreciated the court on issues such as child rights, food security and prison reforms. I am an activist judge. I am proud to say I am an activist judge. But I never tried to transgress the boundaries of law. We have been given the power of judicial review. We should not hesitate to set aside actions of the executive or legislature that are unconstitutional. The issue is with policy. The courts should not enter into the domain of policy unless there is a gap, like for example the Vishaka guidelines.

It is more about perceived misuse than use. For example, the Ayodhya matter was a title suit but the court used Article 142 to make the final settlement. Is the court filling gaps or using Article 142 to do what it wants to?
Let me be categorical in saying that Article 142 should be used very very sparingly. It cannot be used to do something in contrary to established law. I can give you the example of a case I dealt with, regarding food adulteration. In the case, the parties wanted us to do something we felt was against established law. We refused to. Article 142 is for those rare occasions when the field of law is vacant or when the court may not have the laws but not deciding it will cause harm to justice.

In your interview to the Indian Express, you said you were not privy to the merits of the matter regarding the sexual harassment complaint against former Chief Justice Ranjan Gogoi. First, the woman sent a letter detailing the charges to 22 judges, including you. Second, is it not problematic when sitting Supreme Court judges say they were not privy to a matter that was the most important development of that time?
The woman did send the letter to us, so I was aware of the allegations made by her. When I say I was not privy to it, I meant that I was not privy to what happened before the committee. Allegations were made. They were not accepted by the then chief justice or the committee.

But this was the problem, is it not? When something of this magnitude happened, the other judges were silent.
I am of the view that this is a matter that you cannot give to somebody else. You can argue that this is against the principle that judges should not decide on their own cause. The only other option is to take it to Parliament for impeachment. You cannot have others probing judges. The independence of the judiciary will otherwise come crashing down.

But it could be people within the judicial system. Like former judges of the court.
I would like to make it clear that all of the judges knew about the constitution of that committee, that there was a recusal [of Justice NV Ramana] and then a replacement. All of us were made aware of it.

The problem was the perception that the committee was not fair. The woman was not allowed representation despite her physical disability.
I don’t want to comment further on this. It was for the committee to follow procedures. If someone was aggrieved, they should have moved a petition challenging it. I don’t want to comment on it.

But even the report is barred from public scrutiny. Is this not a little difficult to digest?
I don’t know if it has been sought by the public or not. I don’t even know if it should be released. I am not very certain about it.

One thing that happened along with the sexual harassment case was a lawyer alleging that powerful forces are behind the complaint to manipulate the judiciary and that there was attempt to fix benches. A committee under former judge AK Patnaik was formed at breakneck speed. But the report of the committee submitted more than six months ago has not seen the light of day. Does this not erode the credibility of the proceedings?
All I can say is that the committee’s report should have been placed before the bench. It should be placed before the concerned bench even now. But this is a problem even otherwise with the registry. Cases should come up as per the timetable.

I have seen some times that when big law firms or lawyers handle matters, the case is listed exactly on the date fixed. But when it is a poor client or a young lawyer, even if it is a petition that deals with the liberty of the citizen, more often than not it will be dropped from the list and will come up after four or five months. This is something that needs to be looked into. We need to develop a total computarised system.

The chief justice office has faced criticism in the last two tenures of Justices Dipak Misra and Gogoi. There was a lot of talk on the powers of the chief justice as the master of the roster. Has the office of the chief justice become too powerful, much more than the constitutional mandate?
There can be no doubt that the chief justice is the master of the roster. Though the chief justice has the discretion to send cases to any bench, once you set up a roster, you should let the roster operate objectively. I was a chief justice in a smaller high court for over four years. There are many problems in the smaller courts. Sometimes, judges might say they cannot hear many matters. I framed a roster and let it operate by itself by letting the computer decide where the case should go. It has to be a random program.

The discretionary powers should be used only when the computer cannot decide based on the permutations. The chief justice’s office is powerful. The roster is an important part of this power. It is not that the office has become too powerful but how the office is used. If the power is used properly, not one will raise questions.

But was it used properly in the last two tenures?
I am not going to comment on individuals. It is the system I am concerned about and how to make it better.

There have been comparisons of the current court to that of the court during the Emergency and that it has become too close to the executive, especially in the context of Gogoi taking up a seat in the Rajya Sabha.
My answer is please read my farewell address to the bar.