‘Religion had no role in my perception... judges must tune out social media’: Outgoing CJI

Justice Gavai, who demitted office on Sunday, underscored the CJI’s authority as the “master of the roster”, stating that the Chief Justice is “duty-bound” to withdraw cases from any bench if the issues involved have a wide social or national impact.

Outgoing Chief Justice of India Bhushan R Gavai spoke to Utkarsh Anand about his tenure, the powers of the CJI, judicial appointments, transfers, dissent, the impact of social media, the stray dogs and pollution issues, and his philosophy on bail and liberty.

Former CJI Bhushan R Gavai (HT PHOTO)

What will be your most lasting institutional contribution?

I think, taking the entire court as a whole and departing from the criticism that the Supreme Court is a CJI-centric court, would be one of the most important things that should be remembered during my tenure. No doubt, there have been earlier CJI’s like Justice Sanjiv Khanna and Justice Uday U Lalit who had also taken their colleagues on board. I also believe that in the Supreme Court, the CJI is only the first amongst equals and the court has to be carried forward with all the colleagues taken on board. So whatever decisions on the administrative side I took were always after consulting the full house.

What shaped your decision to introduce reservations in the SC registry?

Now you see that reservations are everywhere. Even for Parliament, there is reservation. In all the state services there is reservation; for services like IAS, IFS, IPS, there is reservation. No doubt, reservation is not to be there for the constitutional posts like the high court judges or the Supreme Court judges, but there is no reason as to why the affirmative action should not be applicable even for the staff, ministerial staff. I was really somewhat surprised that there is no reservation provided, there is no roster provided for the highest judicial institution in the country, which has so far given so many important decisions on affirmative action. That awareness and that contrast shaped both the personal and institutional thinking behind the decision.

Did being the first CJI from the Buddhist community shape your view on representation?

I don’t think my religion had anything to do with my perception. I am a firm believer in secularism and respect all religions. I was influenced by my father’s work and ideals. He worshipped Dr Ambedkar; so do I. Since the Constitution believes in equality and opportunity for all, I believe in being inclusive and giving opportunities to diverse sections. In the Supreme Court, we are only 33-34, so pan-India representation is not easy. But in appointments, I am happy I filled five posts -- four unanimous, one with dissent. We ensured diverse and regional representation. In appointing chief justices of high courts too, we brought diversity. During my tenure, 107 HC judges were appointed -- 14 in Bombay, 24 in Uttar Pradesh, 12 in Madhya Pradesh, ensuring representation to all sections, including OBCs, Scheduled Castes, minorities, and women, and encouraging SC lawyers from across the country.

Why was no woman appointed to the top court during your tenure?

You see, though the decision is of the collegium, we have to take into consideration various factors. We also have to take into consideration the views of the executive, though we are not bound by that. I always believed that the concept of isolation has to be avoided and that there has to be a collaborative approach. In so far as women candidates are concerned, we did attempt to consider some names but there was no unanimity on any name, due to a variety of factors. As a member of the collegium, it may not be proper on my part to disclose those reasons. But an attempt was certainly made. We had considered various candidates. Maybe in the near future, there would be someone representing the women.

Is the collegium system sustainable?

The collegium system, with the modifications that we brought in during the period of Justice Sanjiv Khanna, is a really good model. Because earlier, we only used to act on the recommendations of the HC collegium. But after Justice Sanjiv Khanna took over as CJI, and thereafter, we continued interacting with the candidates. After interaction, you can at least to some extent gauge how they would perform as judges. Not only that, we also take inputs from the executive, Intelligence Bureau and the respective state governments. The decision is not solely based on the arbitrary decision of the collegium; the collegium considers all inputs and thereafter decides on suitability. According to me, it’s a good system. It is not as if it is totally judge-centric. Even administrative matters -- if you want infrastructure, you can’t just do it by issuing orders in a PIL; you have to have the executive on board.

Your decisions as master of roster, especially on the stray dog case when the matter was withdrawn from Justice Pardiwala’s bench, raised questions.

As CJI you are the master of the roster. The Chief Justice is not Chief Justice of the Supreme Court; he is the Chief Justice of India. Whenever any important issue involving a large number of citizens arises, the CJI is duty-bound to ensure that the interests of all stakeholders and the country are taken care of. In the stray dogs matter, I found that the issue required consideration by a larger bench because there were two conflicting orders by two different benches. Therefore, I found that it should go to a larger bench, and the larger bench constituted the next senior-most judge in line to become CJI. The only intention was in the interest of administration of justice and to ensure that the perception in the minds of some people that injustice is being done is removed.

One of your collegium recommendations saw a written dissent from a fellow collegium member. Similarly, one of your recent judgments saw a dissent from a member on that bench. What are the acceptable boundaries of disagreement?

Disagreement has to be there. Nobody can compel views on anyone. Everybody is entitled to have his own views. In so far as collegium is concerned, if anyone has concerns, one is perfectly justified in giving views. But at the same time, when views are given, one should ensure they do not become public and do not act to the prejudice of the candidate because in our system, a judge has no defence mechanism. So, at times those allegations, those observations, go unchallenged. There has to be some limit to disagreement. In judicial orders too, every judge is entitled to give their view. Our oath says we take decisions without fear or favour. Everybody has different perceptions; dissent has to be there. I always believe no human being is perfect. Judges are bound to commit errors. Dissenting is one thing; criticising the other judge is different. It’s everybody’s perception; one has to decide.

Your decisions permitting ‘green firecrackers’ on Diwali or the recent judgment on ex-posto facto environment clearances faced both praise and criticism. How do you balance environment concerns with development?

I always believed that a lopsided view cannot be taken in such matters. No doubt the environment is important, ecology is important, and the resources that we hold are in trust for future generations. But at the same time, if the country has to progress, you cannot stall development permanently. I always believe that environment has to be protected and ecology has to be protected, but at the same time the right of the country to progress and the right of a citizen to livelihood cannot be ignored. A proper balance between the two has to be struck. Even in yesterday’s matter, I said that you also have to think about the country’s resources -- should the country progress, or should we allow others to march ahead?

About green crackers, the government of Delhi, the Union of India -- everybody was on the same page. They assured that the pollution from green crackers for a short period would not be as hazardous as projected. We reiterated what earlier benches had done, including elaborately considered orders.

How do you respond to concerns about the independence of the judiciary and its perception?

Independence of the judiciary has to be maintained. In some quarters, the idea is that unless you decide against the government, you are not an independent judge. That’s not the correct approach. A judge needs to decide a case on the basis of the facts and evidence before them and apply law properly. To say that you are independent only when you decide against the government is not the right approach.

There was social media outrage directed at you personally --- from the Lord Vishnu comments to the shocking incident of the shoe throw. How did you process that public gaze?

I totally ignored it because I had no intention to disrespect any god. I believe in secularism. So, there is no question of disrespecting any god, whether a Hindu god or a deity of any religion. When I was confident that I had no intention, the criticism hardly bothered me. Social media has become a menace everywhere. As a judge, I firmly believe that judges should not be influenced by social media. A judge should not decide whether his decision is liked or disliked. He has to be true to his oath, true to the Constitution, and decide as per his belief of what is right and wrong.

Why is the bail-as-rule philosophy not percolating?

I have grown up with the principle of bail as the rule. Even in my judgments since 2003, I have always been in favour of liberty. If a person is put behind bars for years without the trial commencing, it is punishment without trial. Where trials cannot proceed and the accused cannot tamper with evidence or influence witnesses, bail is the rule and denial the exception. Constitutional rights to liberty are superior to statutory restrictions. Before Prabir Purkayastha, there were judgments like Justice Bopanna’s, and in Teesta Setalvad’s case I was surprised the HC refused relief on a Saturday and directed surrender immediately despite SC’s temporary bail. After these judgments, and those by justices Surya Kant and AS Oka, I am told the trend is changing and judges are less afraid of granting bail in sensitive matters.

What core principle should guide future CJIs?

I personally believe that the CJI should keep in mind that he is first among equals. He should take all stakeholders --- colleagues, the Bar, registry and staff, together. Everybody contributes to the institution. No single person can individually take forward the purpose of administration of justice. A system involving all stakeholders will help every CJI.

Should retired judges take public roles?

I personally feel it is everybody’s individual perception. I don’t think there is anything wrong in retired judges accepting post-retirement office because statutes themselves provide such posts for retired SC and HC judges. They have been performing very well on tribunals and contributing to society. My personal decision is that having served as CJI, I should not accept any assignment because any assignment would always be lower than the status of CJI. That’s my own take; I would not persuade any other judge to take the same view.