In a 50-minute two-part interview with Karan Thapar for The Wire, Justice (Retired) Ajit Prakash Shah discussed the functioning of the Chief Justices of India (CJI) and other judges of the Supreme Court during the eight years that Narendra Modi has been the prime minister.
In the second part, Justice Shah discussed issues such as whether judges should be appointed on the basis of seniority or performance and ability, and whether CJIs of the Supreme Court should have a fixed tenure. He also discussed whether the powers of the CJI as the master of the roster (to decide which cases are heard, the size of the bench as well as its composition) should be diluted or amended, and whether the collegium system is the best way of choosing judges.
He also spoke about whether the Supreme Court erred by acting in haste over its decision to overturn the Bombay high court’s ruling to discharge G.N. Saibaba in a Maoist links case.
Explaining why he believes the Supreme Court has succumbed to the executive’s control during the last eight years, the former Delhi HC chief justice cited four instances that led to this conclusion.
Firstly, four CJIs in succession have avoided taking up critical matters like the Citizenship (Amendment) Act, reading down of Article 370, petitions challenging the electoral bonds scheme and, even, habeas corpus cases because these could be embarrassing to the government.
Second, in critical cases to do with the treatment of migrant workers during the COVID-19 pandemic, the Supreme Court accepted the government’s word as final.
Third, in the freedom of speech cases, only three out of 10 cases were taken up and granted relief by the Supreme Court.
Fourth, while B.R. Ambedkar considered Article 32 [the right to move the Supreme Court] as “the soul of the constitution”, former CJI S.A. Bobde had said that he wanted to “discourage Article 32 petitions”.
In the interview, Justice Shah spoke at length about former CJI Ranjan Gogoi, citing five different criticisms of his functioning.
Firstly, he spoke about “the absolute disregard of conflict of interest” when he heard his own case in the sexual harassment matter. “All principles of natural justice were broken” in the process. This was “very disturbing”, he said.
Second, he said that “Justice Gogoi was obsessed with secrecy and asked for information to be submitted to the court in sealed covers.” This happened in the National Register of Citizens’ case, the Rafale case and the electoral bonds case. This adversely affected the quality of justice meted out by Justice Gogoi.
Third, in handling habeas corpus petitions, which concern the right to life, Justice Gogoi drove “a coach-and-four through the centuries-old established law on habeas corpus”.
Fourth, under CJI Gogoi “judicial evasion” grew because he deliberately chose not to hear important cases, thus leading many to believe that he was side-stepping them because these cases could embarrass the government.
Finally, Justice Shah was very critical of CJI Gogoi’s acceptance of appointment as a Rajya Sabha MP by the government.
Asked who he blamed more – the government for offering this job, in specific contradiction to the Law Commission’s position and Arun Jaitley’s well-known stand, or Gogoi for accepting – Justice Shah said he blamed the former CJI.
When asked about what opinion he has finally formed of CJI Gogoi, he said that he did not want to be personal but he has placed the facts in front of the people.
He added that he had analysed the CJIs of the Modi era – about which he also has written an essay in The Hindu – because: “The CJI occupies a unique position… his role is critical when it comes to protecting the rights of citizens.”
On the collegium system, he said: “Judges appointing judges is not a good idea… the National Judicial Commission is the best way.”
However, Justice Shah said it would need a constitutional amendment to move away from the collegium system to the National Judicial Commission. He added that two aspects of the collegium system need to be immediately improved. He called them ‘flaws’. The first is its opacity. The second is the lack of accountability.
Justice Shah is also very critical of former Supreme Court judge and current NHRC chairperson Arun Mishra and current Supreme Court Justice M. R. Shah for their sycophantic showering of praise on the Prime Minister. Please watch the video for full details.
