Justice Marlapalle is currently a practising advocate in the Supreme Court of India. He talks to Sonam Saigal about the abuse of the collegium system, independence of the judiciary and judicial reforms, among other things.
What are your views on the collegium system?
The collegium system is not something which is in the Constitution. This system has evolved following three judgments of the Supreme Court (SC), in 1981, 1992 and 1998. The latest one in 1998 had the reference made by the very same NDA (National Democratic Alliance) government then under the Article 143 of the Indian Constitution and, when the matter came up before the Constitution bench for hearing, Mr Soli Sorabjee who was then the Attorney General had filed an affidavit on behalf of the Government of India saying that there are issues which require the determination of the judgment and whatever is decided by the court will be binding.
The reference was made on a very short issue whether the view of the Chief Justice of India (CJI) means a singular view or a plural view and whether the CJI is required to communicate his views along with his senior most colleagues and that his decision is that of a body. That reference was then answered by a judgment written by Justice Bharucha and there it was finally said that there will be a collegium of five judges, the CJI plus four of his senior most colleagues for appointments of the Supreme Court judges but so far as the appointment of High Court (HC) judges is concerned, the HC will have a collegium of three judges, the Chief Justice of the court and two of his senior most colleagues.
It was also added that when it comes to the appointment of HC judges, not only will the views of the collegium matter, but if there are judges in the SC who are coming from the respective high courts their views will also be taken into consideration. They are required to give their opinion in writing, hence it is a full proof mechanism, so that there is consultation at each level and in the whole process. But many people say that the government has no role. That is wrong; the recommendation made by the HC goes to the state government for approval. For example, in the case of Maharashtra, it goes to two states, Maharashtra and Goa because they have a common high court and if the chief minister for some reason feels that a particular candidate is not suitable, he is entitled to write back to the HC by giving reasons. It can’t be arbitrary. If he gives reasons he has to return the whole panel to HC for reconsideration. All the recommendations have reports from top intelligence agencies like the Intelligent Bureau to look into.
Where was the need to introduce the collegium system?
Collegium system was necessary because it was felt by the institution, public and the fraternity of lawyers that there was a lot of highhandedness with respect to the appointment of the HC and SC judges. It was true that there were some appointments made out of turn, and therefore, there was no alternative but to bring in some institution which will have a plurality in decision-making and the judiciary will have its supremacy. Today the judiciary has it and, this is where it pinches the executive. But as it happens with every institution, one believes that the collegium has also failed, so there are doubts raised. Especially in the appointments made after 2001, the medicine has been proved to be worse than the disease.
It is said that in India judges appoint judges. But the government does have a say, it is not that the judiciary does anything exclusively. But by and large people are not happy with the collegium system because it has been abused by some individuals.
What do you have to say about the recent Gopal Subramaniam controversy?
First the Government of India has to be blamed and then Gopal Subramaniam. He should not have rushed to the media, the CJI had asked him to wait. This should not have happened, it is very unfortunate. He did not let the CJI assert the implementation of the judgment of 1998. If he had kept quiet, the CJI would have stood by him.
There were three other names which were required to be sent back in toto. The government has no powers to segregate names on its own; that is required to be done by the SC. This government has done something illegal and they should not have done that. They should have given reasons, written the whole proposal to the CJI and asked him to reconsider and then the CJI with his colleagues would have taken a call. The Modi government has violated a judgment of the SC, acted in breach of it and did something which the law does not permit. This is going to have serious implications in the future.
What can be done to ensure the independence of the judiciary is not jeopardised by the government?
The CJI has to put his foot down to ensure that the judgment is followed. I hope the Gopal Subramaniam controversy was the last such incident. If it is repeated, then the judiciary is in peril. We cannot allow the executive to have a final call in the appointment of judges. Judiciary has always been assertive and it must continue to do so. It depends on the leadership of the judiciary and the individual judges. They are bound by their oath to be assertive, fair and fearless. It is an institution’s will not just that of the CJI though it comes across like that. The success of every institution depends on the people who man it.
How does it feel to practice as a lawyer in the apex court after serving as a judge?
After being a judge for almost 15 years in a chartered high court like Bombay, it becomes difficult to come in the advocate’s mode. As a judge you are always used to asking questions but as lawyer you have to answer the queries and be prepared for the most unexpected questions. For me it took almost six months to settle into my new role. A retired judge practicing as a senior advocate has a lot of advantages, because of the varied experiences he has had. He has an overall view which a lawyer probably does not have a chance to have. I have always been very selective and therefore, I don’t take each and every case that comes to me, unless I am satisfied that there is good point to argue. I have been doing a lot of pro bono cases as well, for the government and poor litigants.
I am thoroughly enjoying being at the Bar now. A lot of reading and research work keeps you active and healthy, and you are always a part of the system, where you are able to contribute. A lawyer like a doctor should never retire whether you are a judge or not. All the knowledge and information gathered over years should be put to use; in the process if you make money, nothing wrong with it.
What do you think about the current CJI, Justice Lodha?
Justice Lodha has brought in a lot of discipline and speedy disposal of justice. He has changed the face of the court… its layout, library and corridors. One never saw beautiful paintings in the SC before, he has utilised the funds very well. He has set in motion that adjournments will be discouraged. Judges don’t grant adjournments now. This discipline must continue. The view of the CJI of working for 365 days need not be taken in the literal sense, all he is saying is that we must work on all working days and do away with vacations and the royalty of festival holidays. If you ask me, our subordinate judges must have six working days in a week, while the HC must have five working days. We must have just three national holidays, Independence Day, Republic Day and some other holiday.
I am convinced that high courts can work for 275 days a year. Festival holidays must be kicked off at the earliest.
What judicial reforms are needed?
After the Nirbhaya incident, new legislation was being debated and it was thought that it should be brought in. In my view, existing laws are enough. We only need to implement them better. For any crime what matters is investigation, professional honest investigation. If that is done and the case is taken to its logical conclusion, there are enough provisions to bring the guilty to book. I don’t agree that new law has to be brought in and new act has to come in. New laws bring in too much pressure on the judiciary. I will give you an example. The Negotiable Instruments Act was amended and Section 138 for cheque bouncing has been incorporated. Earlier there used to be recoveries; now there are private complaints under this Act and, in Mumbai alone we have around four lakh cases on bouncing cheques pending before the magistrates. There are 25 magistrates assigned only for this, the Parliament just did not think how this is going to affect the judiciary. So every time the government brings in a new legislation it has to first consider how is it going to affect the judiciary and what infrastructure will have to be provided. Just bringing in new laws is not going to help.
For rape cases there already is a provision in the Code of Criminal Procedure (CrPc) amended in 2003. In six months you have to go to trial, but then you must have the infrastructure, you have the courts, prosecutors, and they also need to be competent and honest.
Judicial reforms will really happen if the government takes care to provide sufficient budget to the judiciary. Time has come when senior advocates should tell the judges that “my lordship the case has been filed but there is nothing in it, you may please give the order.”