New Delhi:
Justice Markandey Katju's revelations on how a certain judge was appointed to the Madras High Court despite concerns that were raised by the collegium because of political intervention raised headlines. The government announced later that it will speed up decisions on the appointment of judges. The uproar however raises larger issues of the balance between the executive and judiciary as well - issues about judicial accountability.
On 'The NDTV Dialogues,' former Supreme Court judge and Chairman of the Press Council, Justice Markandey Katju, Indira Jaising, Ashwani Kumar, Soli Sorabjee and Satya Pal Jain debated the issue.
Here is the full transcript of the debate. NDTV: Justice Katju, you really put the cat among the pigeons this week. The furore that it has caused the BJP, in fact the Law Minister stood up in the Parliament and said that this raises certain issues and outside Parliament we have heard various BJP ministers say that this shows we need to look at what the UPA government's interference was, and also we need to look at a new system. Do you agree with the critics who say that you strengthen the Executive's case for saying that we should be having a greater role in appointing new judges? Do you feel that the Executive must have a say in appointing judges, because you've questioned how the Collegium is working?
Justice Katju: The Executive must have a role but the dominant role should be of Judiciary. I have some ideas, if you permit me to put, because representatives of Congress and BJP, eminent jurists like Mr Soli Sorabjee, Indira ji is here. Firstly, the composition of the National Judicial Commission which I would like to propose and it may be considered. A 7 member judicial commission of which the first 4 should be first 4 judges in seniority in the Supreme Court, Chief Justice of India and first three senior most judges. Fifth member should be the Law Minister of India, sixth should be the representative of the Opposition party in the Lok Sabha and seventh should be a distinguished jurist appointed by the President of India. Now, this 7-member Commission should first scrutinize the candidates they propose. Then they should call the candidate in a televised meeting, where they can put questions to him, like the US Senate puts questions to the candidate. Even about his personal life and also about his judicial working and so on. Whole of India should see the television proceedings, where the 7-member Commission puts questions to that candidate about himself, so that people should know, there should be transparency. In a democracy people are supreme, people must know what is going on. I can tell you my own personal experience. I retired as number 6 in seniority in the Supreme Court. First five judges they treated me like untouchables, I tell you, I felt so sad. They would never ever whisper to me about what they were considering. Was I an untouchable? I was sixth in seniority when I retired. You know these people, they meet in a closed conclave, these first five and even number six is am untouchable like me. I felt very hurt.
NDTV: So you're saying it's an opaque nature, Soli Sorabjee come in on that. Do you agree that the current Collegium has nearly become a system that has collapsed, in a sense not working any more? But are you worried that it opens a Pandora's box, because this is where you will find politicians say we need to enter, because once you give an inch, it will be a mile.
Soli Sorabjee: No, I think it's accepted now that the Collegium system, the genesis was that we don't want sarkaari judges. How did it start? Kumaramangalam's committed judges' theory and superceding judges of the Supreme Court who decided against the government, Keshavram-Bharti. But somehow an origin that was good but experience shows that it hasn't worked satisfactorily. Now the question is what do you do? What do you replace it with? After all ideas were from judges and able persons, people of integrity and independence. Not independent merely from Executive, but also from other senses of power. So the most important thing is the composition of the Judicial Commission. I am by and large in agreement with Justice Katju about 7 people, about a person may be appointed by the President but only make one qualification that the President should be in consultation with the Chief Justice of India. And that all depends, even those people who will appoint judges, they themselves should not be under any pressure. In this scenario, you have Executive as the voice and you must have. There was another shortcoming of the Collegium System that is judges had the exclusive voice and the Executive had hardly any look in, except they could censor reports. It's a good thing but I am not in favour of televising it to the public. For a simple reason, suppose I ask a judge and for some reason they decide that he is clever but not suitable. So he goes straight into High Court from where he is. So, if you televise it, what will happen to him? Litigants in the High Court will say we don't want to appear before him. So, idea of televising, there has to be some limit to it.
NDTV: Before I get the politicians in, Indira Jaising the Collegium was appointed to avoid sarkaari judges, in that sense, the practice, at least what Mr Katju said, or the other cases that have come up in the past about how judges are appointed. Arun Jaitley in his speech in the last Parliament session had made the point of constituency judges where there are other concerns that start coming in. Do you think this is the way to go about it? That we do look at Executive, say now in appointment of judges. Do you worry sometimes what the impact of this will be? It's all very well to say Executive and Judiciary, but it also often boils down to the individual who's in that post.
Indira Jaising: It's a major cause for concern as far as I can see. You know I agree that the Executive should have a role in the matter of appointments. But it is my belief that they have a role even under the Collegium System. The classic and recent example of that is the manner in which Mr Gopal Subramaniam was disqualified from being appointed, for reasons we don't need to go into. But the dominant role of the Executive did emerge and let's not forget it was under the Collegium System. My own belief is that there is ordinarily a consensus between the Judiciary and the Executive. It is in very exceptional circumstances that there is a disagreement. Now, when we have a Judicial Commission, we are back to consensus appointments. Once again you will have the four senior judges that they are proposing, as well as the Executive, broadly agreeing with each other about who should be appointed. And I think this is something I would strongly disagree with.
NDTV: You're saying, consensus is compromised in a way
Indira Jaising: I stand corrected, Mr Sorabjee tells me that the Leader of Opposition will also be part of this Commission, Yes, but I find there is a consensus between the Judiciary, the leader of the ruling party and the Leader of the Opposition by and large. So my question would be, where is the space for civil society to come in? Where is the opposite point of view? I am not talking of exceptional situations where of course there could be disagreements. So I think civil society needs to have a much larger role in the matter of appointment of judges. And it does not satisfy me that there is only one so called eminent person who will be nominated by the President. And my own experience has been that there is no definition of who's an eminent person. You're back to the situation like where it could be a former Attorney General. I don't say that they're not eminent. All I am saying is that, we are still keeping the appointment process in-house. You're not opening it up. And when you talk about concerns; we are today ruled by a party, which has a brute majority in Parliament, I think the dynamics of appointment change in a situation like that and we have to be extra cautious, to make sure that neither the Executive nor the Judiciary has the last word. There has to be a larger role for independent voices and I don't see those individual voices being heard in the proposals that I have heard.
NDTV: I am going to go across to Ashwani Kumar, former Law Minister. Of course the Law Minister would also be considered part of the Commission, of course we'll see the final shape of the bill of course. But Mr Ashwani Kumar, the points being raised, Indira Jaising raised the point of Mr Gopal Subramaniam, but the immediate topic was what happened to the Madras High Court judge when another Law Minister, Mr HR Bhardwaj, defended it and said this was all right. The point being made that there is already political interference in the appointment of judges. How it's being done, why it's being done, it's not transparent at all, but it already exists. Should it be an independent body like the UK has its judicial appointment, why does the Executive have to be the one who shares in appointing judges?
Ashwani Kumar: Mainly because there is a representative of the Executive in a parliamentary democracy. Does an institution or a setup cease to be independent is the question that you must first answer. I think this debate is entirely skewed. It started from Justice Katju's blog, first of all it is utterly distasteful to bring in a man, who has is deceased for the last several years, his conduct is being questioned. But that aside and I am gravely disappointed that in this country that is happening.
NDTV: Of course the conduct is of the former Prime Minister and the former Chief Justice of India, which is being questioned more.
Ashwani Kumar: No, no we are going to be talking about that. You brought in the charge that the then Law Minister communicated with the then Chief Justice and the then CJI took a particular decision. Let me tell you, in no system of government can there be a situation where there is no communication between the government of the day, it may be any government, and another institution of parliamentary democracy, namely the Judiciary, at the level of the head of the judiciary. Just as consultation does not amount to concurrence, same way consultation can never lead to an inference of pressure or interference. It is the most bizarre argument I have heard for the last several days. I have been hearing this and that's the reason I have come on your show. To just tell you this, as the Law Minister, several times references would come to seeking clarification on a subject on which the then Prime Minister had received various representations. Now if the Prime Minister of the day, it could be any government's PM, please do not forget that when the final recommendation goes to the President of India, after the report of the Collegium is received, it is not under the signature of the CJI, it is under the signature of the PM of India that the proposal is sent for making somebody the judge, based upon the Collegium's recommendation. Is the PM of the day not even allowed to seek clarification when a representation is made to him on a particular issue? That is exactly what happened. Now, if you were to say the reference was made to whom? The Ministry of Justice, under the transaction of business rules, is charged with the duty of communicating about the government's perspective to the Judiciary. That does not mean that the then CJI was obliged to ditto, even if a suggestion was made, I don't know what happened, even if it was made, he is not obliged to ditto it. And if he were to reiterate his recommendation the government of the day under the present system will be bound. Therefore this entire charge of political interference is utterly absurd. Let me also tell you one thing, because I need to say this, in any civilized government institutions need to work in harmony. There is no such thing as the Executive being a 'pariah' as far as judicial appointments are concerned. And let me also tell you, if there was one subject where there was total unanimity in the last Parliament and the last government-Opposition interface, it was the Judicial Appointments Commission. There was never an issue.
NDTV: That's what's worrying.
Ashwani Kumar: No, it was never worrying. I remember I myself sent my Secretary Justice to Mr Arun Jaitley to have consultations with him, he was then the Leader of the Opposition in Rajya Sabha, so that we could come together to have a system that would not only work in practice, but would be seen as fair by people at large. I am against televised appointment for a simple reason. Lets assume the entire committee interrogating, I'd say it would be nothing less than an interrogation of a prospective judge, it is otherwise diminishing to have that interrogation in public, finds the person concerned suitable, what if the people of the country at large don't find him suitable? Will they withdraw their recommendation? Will we make the appointment of the judges in Chandni Chowk? You can't do that. There is integrity to certain decision-making, which can never be compromised. Each country has its own history. We don't have to ape the US system. I am not saying for or against anything, may be at some point of time, when we become more refined in our processes, then may be we can look at it. Mainly because there will be a televised debate is not a guarantee of suitability or non-suitability of a judge.
NDTV: Mr Jain, Indira Jaising made that point of Mr Gopal Subramaniam, but in a sense the BJP has been happy with the revelations of Justice Katju, in fact the Congress has said this is being done, the government is scoring points. It's not about truth. It's about the BJP government scoring political points on this. But the larger point I am making is that the way ahead, how are we going to make this truly transparent, From issues raised like televised debates to involvement of civil society to keeping it confined, after all Executive is elected representative. What do you think has to be done now without politics in it?
Satya Pal Jain: See, I'll reply to Mr Ashwani Kumar's points a little later. First let us be clear about the total procedure as such. Since Independence we have seen two systems of the appointment of judges. Before SP Gupta's case, it was ultimately the dominance of the Executive in the matter of appointment of judges. The Law Minister or the Prime Minister will consult and the consultation was in certain cases reduced even to just intimation, not even effective consultation. This system had its own drawbacks and ultimately SP Gupta's case, 1992 or 1993, Supreme Court said no, in the matter of appointment and transfer of judges the final say will be that of the judges. And a new system, which we now call as the Collegium System, that came into existence somewhere '92 or '93. So we have the experience of both, nobody can say that one out of the two was the best. Both had their plus points both had their own negative points. And after the revelation of Justice Katju, the working under the Collegium System has also been exposed. I don't agree with Mr Ashwani Kumar that this issue should not have been discussed or that is not in good taste. I think the weaknesses, the drawbacks, the failures of the Collegium System could not have been exposed by better than Justice Katju. A Prime Minister has no business to insist the Collegium to recommend a person third time, after twice the Collegium has said we don't want to give extension to him. As a matter of fact, the Prime Minister owes an explanation to the nation. The interaction between the Judiciary and the Executive doesn't mean that the government will insist on a particular name after having being rejected twice.
Indira Jaising: We can't politicise this debate
Ashwani Kumar: You are factually not right
NDTV: Let him respond
Satya Pal Jain: We need to evolve a system where all these weaknesses can be evolved to the minimum. Everybody wants to have a good judge. Everybody wants to have a neutral judge. We can't find a foolproof system. Ultimately you may adopt any system. Now the time has come when almost all the major political parties are agreeing on the creation of a new institution called the Judicial Commission for Appointment of the Judges. The main issue of difference is about the constitution of the commission. Some people are of the view that it should be the judiciary that should have the predominance in that matter, some people say not only judiciary but it should have the opinion of the expert also. I agree with Mr Ashwani Kumar, I don't agree with Mr Katju one one thing on televising the interview of judges, it may not be in good taste. And there may be many people who may not like themselves to be subjected to such type of interview before being appointed as a judge.
Indira Jaising: I would agree with the Ashwani Kumar point that at the end of the day you cannot have a system, which excludes the Executive. If you look at it, it is a more democratically elected Executive than the Judiciary can ever be. So even in terms of the theory of understanding of the democracy the Executive has to have a role. But my friend here did not answer the question that the proposal that his party is making, who is going to be nominating? Is it going to be the Executive? Is it going to be the Judiciary or is there going to be sort of multi-member body which reflects the point of views of the, not just the Executive and Judiciary, but many, many voices. Let me say one last thing Sonia, if you look at the composition of the Judiciary today, I am sorry to have to tell you that very often children of judges get appointed as judges. One just has to make analysis. Okay the same thing happens when it comes to designation of senior lawyers, the children of judges get the designation of senior lawyers and then they become the persons of eminence. Then of course you have to be a person of eminence to be appointed and I think this debate goes to the heart of democracy that we call India. What exactly do we mean when we say that we want to have democratic processes? And in my opinion the proposed Judicial Commission, and I don't want to be political about it, whether it was UPA government's proposal or whether it was their proposal, I think both proposals were flawed to the extent that they exclude a lot of voices.
NDTV: In fact what's fascinating is that. Justice Katju that is why I want to bring you in, appointment is just part of it, actually one core issue which I think is hidden in the noise which has been made around the revelation, is the fact that the charges of corruption, now of course whether the IB report was valid or whether that was actually written. Mr Jaitley said it was not. But the fact is that we keep hearing various, and Prashant Bhushan and other lawyers who have come together, raise the issue of corruption in the Judiciary who looks at these issues. It also raises the issue of what Indira Jaising said about dynasty in the Judiciary, in a sense about whether who you know, the fact that this judge, the reason that the party supported him, because of his caste. That they say that, you know, he is being discriminated against because of a certain caste. In a sense ills of politics in a lesser proportion now with a Judiciary as well?
Justice Katju: You see that is why I suggested that this Judicial Commission should not have only judges. This Collegium System...
NDTV: But this will just look at the appointments and doesn't go to these issues of corruption etc
Justice Katju: The same Commission, 7-member Judicial Commission can also go to the question of charges of corruption and all, but the majority of this Commission should be judges. Chief Justice of India and three senior most judges of the Supreme Court, and fifth member should be the Law Minister of India, sixth should be from the largest party of the Opposition and seventh should be a distinguished jurist to be appointed by the President of India
Soli Sorabjee: ...in consultation with the President of India.
Justice Katju: Listen, there have been Chief Justices and then there are Chief Justices. Please don't talk of Chief Justices of India. Three Chief Justices of India I have mentioned who compromised, what are you talking? Are they Gods, Chief Justices of India?
Soli Sorabjee: They are not demons either.
Justice Katju: I am not saying that but don't rely so much on Chief Justices of India
Soli Sorabjee: Only the President
Indira Jaising: Whom will you rely on?
Justice Katju: Listen to me, since you asked the question have patience to listen. This, I myself agree, that how a distinguished jurist is to be chosen is to be discussed, debated. I don't have the answer. Don't trust the Chief Justice alone. I have pointed out three Chief Justices of India, when there is adverse IB report. I know it. I was in Madras when he was openly doing corruption.
Soli Sorabjee: Who is saying Chief Justice alone?
Justice Katju: Chief Justice of India compromising...
Soli Sorabjee: I am not saying alone. It will be the President alone
Satya Pal Jain: See on the one hand you are saying President should not depend on the advice of the Chief Justice alone for the purpose of appointment of jurists on the Commission. On the other hand you are yourself suggesting that four out of seven members of the Judicial Commission should be the judges. Is this not contradictory?
Justice Katju: There is no contradiction, because when you have a larger body, not just the Chief Justice of India, you know they will cross check. You see I was in the Collegium of Allahabad High Court. I was number three in the Allahabad High Court. One member was proposing names of people who were totally undeserving. I strongly objected. I said, I will not allow this appointment to go through.
NDTV: Let me go to Ashwani Kumar because I should raise another issue. When the UPA had originally come up with this bill there may have been unanimity among the political parties. The backlash of the outcry was the reason the UPA is doing this, because the Judiciary had become strong. At that time there were a series of judgements to be seen as anti UPA. You faced the brunt of that as well and you resigned. And I am saying the reason it was seen as an Executive wanting to take back the reins of power because they feel that judicial activism has gone out of control. Do you agree that there was any sense of that at all? Do you feel that there is a need to restore balance?
Ashwani Kumar: Look these are two entirely different questions. The need for restoring balance is self evident in the proposal that is before the Parliament, which we have discussed in the first round. The second the point that you made is, in a sense. a suggestion that the UPA made this proposal because it wanted the control over the appointment process. Even in that proposal the control does, is not vested with the executive. It is vested with the body in which the judges outnumber the Executive. Number two, if that was our intention could we have forged unanimity with Opposition who was baying for our blood. Number three the other question you talked about, is me baying for blood, that is not germane to this debate. That was a charade, which is a joke, any way it happened. The point I was trying to make is we have reached a stage in the evaluation of a democracy, when no one institution can stand alone to govern this country. When no one individual is so powerful as to have his writ run, transcending other imperative, and I am very happy for my country because we have arrived that stage. But one point I want to make about what Justice Katju, for whom I have great respect, he said don't trust the Chief Justice and he said I have pointed to three Chief Justices of India who could not have been trusted. He can trust an Intelligence Bureau inspector but he will not trust three Chief Justices of India, of an institution, which he has been a distinguished member. And he will not trust a former Prime Minister.
Justice Katju: ... you are twisting my words.
Ashwani Kumar: The burden of your entire argument Justice Katju is the three Chief Justices of India did something wrong. If three Chief Justices of India in their wisdom, and who were not amenable to any pressure under Collegium System by anyone, chose to decide one way, surely there must be some presumption in favour of what they did. I am not joining issues. I am not privy to what the IB report said. I have been the Law Minister and I have seen IB reports. It is so dangerous to put total faith in the report of one institution, I am not saying disregard it. That is one input, but to say that that must prevail over everything else; for heaven's sake, in a country where we have learned to live by the rule of law. The essential and non-negotiable postulate of that is presumption of innocence of a person until established to be guilty. We have reversed that. We have given undue weightage to reports here and there and we have, of course, got the great trial by media in the Mirajkar Case, in which 5 judges said this should have never happened. But this is happening under the wise gaze of the Supreme Court, nobody has called that into question. Reputations are wrecked, people have had to pay a price because once the damage is done there is some new news the next day and that person can go to hell. So let me tell you this, no institution of parliamentary democracy can survive on its own, and let us bring balance, not only between 3 institutions of governance, but between how we have conducted our democracy so far.
NDTV: I want to ask Justice Katju, do you want to respond to that?
Justice Katju: Mr. Ashwani Kumar doesn't know the facts, I was the Chief Justice in Madras High Court and he was not there.
Indira Jaising: We are not talking about the Madras High Court.
Justice Katju: May I be permitted to speak; may I be permitted to open my mouth in the presence of you people? See I am not saying that rely on that adverse IB report alone. First I made my investigations, I just didn't rely on the IB report alone. IB report was only when I went to Justice Lahoti and I said to him that I have got a lot of information that his man is indulging in corruption. But you please don't rely on me alone get an IB report also, so that it confirms what I was saying. Mr Ashwani Kumar please know the facts before you say something.
Ashwani Kumar: I don't want to argue. I am saying that then let Justice Lahoti or Justice Sabarhwal come and say why they didn't agree with what your recommendations were. I mean, the point is, I may not know the facts; they will know the facts. There must be some presumption in their favour.
Indira Jaising: Lets not forget that the man he is talking about is dead, and not even in a position to defend himself
NDTV: But I think that the point is, another member of that Collegium, Justice Ruma Pal, said today that she did write a letter questioning the decision. The fact is no one knows what happened, that's why we can debate here with these facts.
Soli Sorabjee: Lets see the areas of convergence. We all agree the Collegium System must go, must be a re-composition. I agree with Justice Katju that Judiciary should not be exclusive, but they must tilt a bit. Judges know how High Court judges work, they know the laws and they are in a better position to judge, but they are not exclusive.
Satya Pal Jain: Allegations are against the Prime Minister.
Ashwani Kumar: This is not a partisan debate. It is a very serious debate about institutions. Please understand the role of the Prime Minister. Prime Minister has no role, administrative role, other than the superintending role to ask for clarifications with respect to ministries, of which he is not the administrative minister. He speaks through the Law Minister when it comes to matters relating to Justice department. A representation is made to him. He sends it to the Justice Department to give a clarification. What explanation do you want from the Prime Minister for doing his job? Please do not...
NDTV: We talk about the composition of this Commission. It's of course an interesting fact that we don't have a Leader of Opposition and we may not have a Leader of Opposition for this Parliament. When we look at who we are actually going to include in this, this bit that IB reports, the charge against this government was that the IB report was leaked selectively in the Gopal Subramaniam case, issues about him that the IB found suspicious. So in that sense just as the ex-UPA government may have this to bear, the NDA government may also have to bear that people maybe mistrustful of your motives now.
Satya Pal Jain: After the entire discussion, as Soli Sorabjee pointed out, there is no disagreement on 2-3 submissions. Number one, both the systems had their flaws, both the systems, if I may say so, failed. We are now in search of a third system where there is the balance between the two; the balance between the Executive, balance between the Judiciary and as she is suggesting, between different organisations, civil societies and other organisations also. I remember somebody said last evening on the TV that instead of having the interviews of the persons, etc who are going to be appointed judges by the Judicial Commission, let their names be televised, so that if you have any view this maybe conveyed to the decision-making. Sir, neither can we have full faith and say final say to the IB nor we can give that final say to the Chief Justice, nor even to the Law Minister or the Prime Minister, and with all respect, not even to the President of India. Ultimately the issue revolves around one thing: What will be the composition of the Commission, which will ultimately recommend? And now there is no difference of opinion that it should be a balanced Commission. It should have people representing both, from the Judiciary also as well as from the public, civil societies
NDTV: What if there is no Leader of Opposition?
Satya Pal Jain: Yes, no harm. Leader of Opposition should also be consulted and if there is no Leader of the Opposition then you can consult the leader of the largest party. See our government is with an open mind on this issue, it's not an issue of BJP or Congress and all that. It's not the issue of any of the political parties. I feel, like a foreign policy, let there be broad consensus on the appointment of the judges transferred to the Judiciary also. So therefore, you have started a debate on the right perspective. Let people be involved in it. Our government has called the meeting of all the political parties. We are open to all suggestions being given. Ultimate aim is not to have the final say either to the Executive or the Judiciary. Second thing, a small reply to Mr. Ashwani Kumar's question that he said that all the 3 Chief Justices should come and explain, I think not only the 3 Chief Justices, about the allegation of Mr. Katju, the Prime Minister should also come. Why is the former Prime Minister, who was at that time at the helm of the affairs, why is he also keeping silent? Let me make the point, all the players, whether the former Chief Justice, whether the former Law Minister or former 3 Chief Justices, all of them owe an explanation to the nation about the allegation leveled by Justice Katju.
NDTV: Well, Mr HR Bhardwaj has come out to make a governshi[p, but let ... Indira Jaising, go ahead you want to make some point...
Indira Jaising: I have two points to make. One is to respond to Mr Sorabjee's point about whether civil society is competent to opine on these issues. Now, here's what I say, there must be predetermined criteria for the appointment of a judge. So by what are we going to judge? Let me make a suggestion if it meets with your approval. Obviously this Commission must have a very, very strong secretariat with very, very renowned academics in the secretariat. Now the job of the secretariat; see if you are talking about appointment from High Court to Supreme Court, I think the job of the secretariat will then be to sit and analyse all the judgments that the nominated judge has passed during his tenure as a judge of the High Court, and that report should be made public, so that we all get an opportunity to comment on it. Now, while analysing judgments what are we going to look for? We are going to look for knowledge of law, we are going to look at the quality of writing, we are going to look at clarity of thought, we are going to look for a certain commitment to human rights and we are going to look for commitments to say, for example, women's issues, which concerns me a hell of a lot. I know judges of High Courts, who made the most derogatory comments about women while they were High Court judges, and they have found their way. I know judges of the Supreme Court who have made very derogatory comments against women. They are still there. So we really need to have a checklist, a certain criteria, a research document and the document must also contain information about that person's personal bio data, assets, disclosure of income, source of income, so that if you want to know about the credibility, in terms of corruption, you must know their assets, you must know their income, you must know their sources of income and let the people judge whether, you know, there is a valid reason. And then I say allow civil society to voice its concerns. You may not want them on the Commission, that's a different issue.
Soli Sorabjee: I agree
NDTV: Let us just look at the final round of Dialogue, Justice Katju, in a sense you shone a spotlight on one aspect. Do you feel there has been a corrosion of the values, at the center, of the Judiciary? On the one hand we have seen the Judiciary is upheld as the institution, that one institution India can rely on vis-a-vis when there was extreme, when there is extreme cynicism of the political class. Do you feel that there has been corrosion and how do we end it? I remember Mr Jaitley in the Rajya Sabha had made that stirring speech when he talked about how pre-retirement judgements were being given because of post retirement jobs and he talked about the lure of a Lutyen's bungalow
Satya Pal Jain: You may know the Law Minister; you may not know the law, that's what he said
NDTV: Exactly, and you have been charged of that. You have seen the Congress, and perhaps others, charged you of the motives as well for coming out with this. Do you feel there is corrosion and how would you answer the question about motives?
Justice Katju: Definitely there has been corrosion. I remember when I started, long back, practice in 1970, in Allahabad High Court there was no corrupt judge in the High Court. They were judges who would lose their temper, there were nasty judges, present judges, but we never heard of a complaint in 1970; the same in Bombay. Now Justice Bharucha said, I think in 1991, 20 percent judges of the High Court have become corrupt, things have become worse since then, I know, I gave a judgement. Something rotten in Allahabad High Court, that's my parent High Court. I get the feedback. It's definitely above 20 percent. I am not going into the percentages, but I am not saying all judges are corrupt. There are many very upright judges, very honourable judges.
Soli Sorabjee: What point are you making?
Justice Katju: She has asked whether there is corrosion?
Soli Sorabjee: Definitely there has been corrosion. I remember, you must remember, judges come from society. They are not angels who descended from heaven. If there is a fall in morality in society, there will be fall in morality among judges
NDTV: I asked also about the motives because Arun Jaitely had made that important point about the relationship that he made. He said the judges angling for post retirement jobs. That's the accusation he had made specifically. I asked about motives as well. You are facing, people are targeting you for that
Justice Katju: I don't bother about people targeting me as long as my conscience is clear. I have never bothered about it. But we must realise that, are you talking about post retirement appointments or something else?
NDTV: He said pre-retirement judgments are being imposed for post retirement jobs.
Indira Jaising: General prepositions
NDTV: Not, not as a general, his point being that that there should be a cooling off period is one of his suggestions. But I think a larger bit about judgments being given being amenable to the government in power, because of the prospect of post retirement jobs. I don't know if he has the same view now that he is in the government.
Soli Sorabjee: That's the perception, maybe wrong but there should be rule.
Justice Katju: If the judge is an honourable judge it will not matter whether he is about to retire or not about to retire. Well, you are entitled to your opinion. Indira ji you are entitled to your opinion, it's a democracy and you are entitled to your opinion. And I am entitled to mine by the way.
Soli Sorabjee: But, Katju Sahab, if there is some period, because after all justice is rooted in confidence and people should not feel, as far as you are concerned, I don't believe that the best council laud you. But the general impression will be much better if it's the cooling period when he is on the bench and when he is going to be appointed soon.
Justice Katju: Yes you are right about some judges, not about all judges.
Soli Sorabjee: But that above rule...
Indira Jaising: So what's the system? There have been judges who have been offered positions while sitting as Supreme Court judges.
Justice Katju: You have whatever code you want. If you are not having honourable people who are operating the code, it will not matter. Supposing you have a High Court, beautiful building, beautiful lawns, beautiful curtains, but the judges inside there are sitting and taking bribes. Is that a High Court? I say a tree, a tree under which a learned and honorable man is sitting dispensing, let me complete, dispensing fair and impartial high quality justice, that tree is a High Court. It is the human personnel who are manning the institution on which everything will depend. If they are not first class people then you may have cooling system, this system, any system you have, it will not matter.
NDTV: Any system can be subverted, go ahead Mr Ashwani Kumar
Ashwani Kumar: I think Justice Katju has made a valid point. The strength of the institution depends upon the moral fiber, personal integrity and the sense of probity of the individual concerned. Code, cooling off periods will have no impact. We have see it in the case of civil servants, who have a cooling off period, but it doesn't stop them from doing things that would get them some benefits subsequently in their careers. And if you are honorable, it will make no difference to your aspirations in the discharge of your functions of the job that you are occupying at that time. That is why, when Soli says that justice is rooted in confidence, it is rooted in the confidence that the people have in the personal sense of integrity of the individual concerned. That is why we are talking of this large structure in the form of a Judicial Commission, that the best could be elevated. Certainly the elevation of the best people must start at the High Court level because it's from there that they come to the Supreme Court. And while it is true, when I joined profession in 1975, we were used to treating High Court judges as demi-Gods and Supreme Court judges as Gods and nothing less. Since then there has been erosion and I am privy to that erosion, both as a lawyer and as a Law Minister.
Soli Sorabjee: But you don't treat them as devils?
Ashwani Kumar: No, but I am saying that sense of loss of confidence of the people at large in the judicial system is a reality. It is unfortunate, but it is a reality, and the only way we can correct it is to devise a system. And that is my concluding comment, to devise a system that would be seen to be producing men of outstanding character and women too, to adorn the benches of the Court, because the Judiciary is the last resort as far as the protection of the Constitution is concerned. And I think the role that the Indian Judiciary has in the Indian system of Parliamentary democracy and the respect that it enjoys, by and large, amongst the people has to be preserved, and the only way to preserve it is that the Judiciary must lead by example.
Satya Pal Jain: See, I think the conclusion so far as all the panelists are concerned, we do not at all suggest that the entire Judiciary has gone corrupt. There are no adjournments in the Court. That's not at all the conclusion suggestion of anybody. I think that our Indian Judicial system has stood the test of time except few examples maybe here and there, this judge or that judge. By and large it's our Judiciary, which has protected the rights of the common man, they have never bothered about the Executive. It is in this country that a single judge of a High Court could set aside the election of the Prime Minister of India. It is in our country that three judges of the Supreme Court, the moment they were superceded, they did not take even an hour to resign from their post. And a number of judgements, maybe from this government, that government, number of enactments have been nullified by the Supreme Court, High Court in different cases. The only doubt that has now started arising is because of two things, number one the allegations like the revelations made by Justice Katju or in some other cases also. Lets not forget the case of a Supreme Court judge whose impeachment had gone to Parliament of India and it was the Parliament which failed, the political system failed. Instead of deciding on the seriousness of the allegations of corruption the Parliament was decided on the regional basis. Since you come from south or you are from north and we are also from north so we will save you. Instead of deciding the issue on merits, it was the political Executive, the Lok Sabha,of India, Parliament of India which was decided on regional basis, which was the saddest day in the Indian Judiciary. Or certain cases like Arun Jaitley said that for getting certain appointments, you may not know the law but you should know the Law Minister. Now some of the judges, there is no doubt about it, I will not like to name any person, have started lobbying before the retirement for getting this Commission, that Commission, here appointment, there appointment, etc etc, etc. Therefore as Mr Ashwini Kumar said it, I totally agree with him. Ultimately the faith of the people in the Judiciary, which today is also the highest among all the sections of the democratic working Executive, Judiciary and Legislative, I personally feel the highest faith people have is in the Judiciary. That has to be preserved and further strengthened. So as I said earlier it's not the question of any particular political party, it's not the question of any particular ideology, it's the question of preserving the independence of the Judiciary. The dead wood has to be taken out. Steps have to be taken that such type of failures, such type of unfortunate incidents, I will use that word, or unfortunate examples do not occur in future. And we slowly and slowly move towards a fool proof system, as far as possible, to have judges who don't bother about any person, may be the Executive, may be the Judiciary, may be any other section; and the way they take oath, 'I will administer justice without fear and favour', actually they do it. That system we have to ultimately achieve and for that we require the national consensus amongst all sections of the society, civil society also, political parties also, the sitting judges also and the retired judges also.
NDTV: Indira Jaising, final thoughts tonight
Indira Jaising: I can only say that this debate, I reiterate, goes to the heart of Indian democracy and for me it acquires urgency, not because of so called revelations, because this has been going on since time immemorial, but because we are today in a polity which is dominated by brute majority in Parliament and this is the reason why its very, very important for us to have a Judiciary which is top of the line, because I see the Judiciary as the last frontier to defend the rights of the citizens. But I worry about the timing of this debate. I worry about the way media has whipped up this issue, after all it was the UPA government that introduced this bill. All this government had to do was reintroduce it. But we have seen a massive engineered media debate on this issue that makes me worry. And my worry is are these judges who are going to come in, going to be appointed on the basis of their political affiliations, if somebody can guarantee me that that will not happen, I am all in favour of the Judicial Commission.
NDTV: So that we have to wait and see and it will be interesting. Soli Sorabjee, I gave the first words to Justice Katju, last words to you tonight
Soli Sorabjee: Ultimately, it depends on the person who heads the Commission, who heads the, thing that you have to do it. Why doesn't he ever appear before the judge in the Supreme Court? Not that he will favour him, but the perception, he won't appear. The judge will give an absolutely correct judgement, but the people will think iska nevue utha toh judgement diya. So we must, on the one hand, not be carried away by some instances, preserve the people's confidence in the Judiciary. Wherever Judiciary goes wrong, civil society can always come out and do it, but please don't throw out the baby with the bath water. That's the thing.
NDTV: We have to leave it here because otherwise I think this debate will continue forever, but thank you all very much for joining me on a fascinating topic, which I don't think we have seen the end of. Now the debate shifts to Parliament. Thank you all very much.