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Supreme Court’s Sabarimala Verdict Is Flawed, Says Mukul Rohatgi

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There wasn’t a dull moment at the Supreme Court in 2018. The year started with the unprecedented media conference by four senior judges, followed by an impeachment motion against Justice Dipak Misra; the rumblings and allegations of foul play in Judge Loya’s case met a quick dismissal and the infighting within the CBI reached the apex court’s door as well. And, its decision in the Sabarimala case of putting equality before religion was met with violent protests and plea for a review.

But 2018 wasn’t just about controversy.

The marathon hearing in the Aadhaar case reached fruition and curiously both sides claimed the verdict as their victory. Also, the apex court took a progressive stance and partially struck down Section 377 of the Indian Penal Code as unconstitutional.

On BloombergQuint’s weekly law and policy show The Fineprint, former Attorney General and Senior Advocate Mukul Rohatgi shared his views on the learnings from some of these important developments and landmark verdicts.

Watch the full interview here

Here are the edited excerpts from the interview:

What would you remember 2018 for in the context of what happened at the Supreme Court?

It was a year of historic verdicts, thanks principally to the Chief Justice [Justice Dipak Misra] who worked very hard and had several five-judge benches. We have never seen so many five-judge benches delivering judgments one after the other. And of course, as you mentioned the unprecedented press interview by the four judges.

What was your first reaction when you heard about the media briefing?

I was stunned. It was completely out of the ordinary. You have press conferences by all kinds of people, by politicians or bureaucrats but I have never heard about a press conference by judges and that too of the highest court. I, for one, having been a part of this community for 40 years now do not subscribe to this press conference. It should have been dealt with inside the court.

“It’s something like unionism within a court. It’s a sure way that it will affect the foundation of the court. The court has to be uniform, unanimous, cohesive and together.”

But some have argued that sunshine is the best disinfectant and by doing what they did, these four judges have brought forth conversations that weren’t getting, like you said, sorted out within the four walls of the Supreme Court and thus merited a conversation outside of it.

I don’t think proper attempts were made to sort it out within the court. See there are 26-30 judges in the Supreme Court. It was possible for these four senior-most judges to call for a meeting of all the judges even if the Chief Justice wasn’t calling one. Nobody stopped these four judges from calling the remaining judges and I am sure they would have come because all of them are junior to the first four. They could have called for an informal meet at one of these judges’ houses, discussed the issues and then maybe some consensus would have been reached between 15-20-25 judges and with that consensus they could have all gone together to the Chief Justice and said this is what is wrong. So, this outburst by four in a group of 25-30, according to me, was not warranted.

“People look up to the Supreme Court. It’s the last frontier so to say. If people find that the Supreme Court is also shaking, and people are talking in discordant voices in the court itself, it will affect the image of the court that people have in their minds.” 

But perhaps these discordant voices have always persisted and maybe they didn’t come out in the open until this conference?

It has never been this discordant. I have been here for 40 years, things have happened, there have been errant judges, some judges don’t behave properly—all that has happened, but it has never been to this extent.

One of the issues raised by these four judges was the allocation of cases to benches which they said was being done in an arbitrary fashion. Do we need to relook at the way cases are allocated to benches?

Normally a roster system is that this bench will do say four types of cases—criminal cases, arbitration cases, industrial law cases or service disputes. Another bench will have a roster of say civil cases, company law disputes, constitutional disputes and so on. So, it’s not one individual line that you will do only criminal cases—that happens in the high court. The four judges felt that certain important cases, which involved high political figures, were going to junior judges—to bench number 8, 9, 10 or 11.

It has always been known that the Chief Justice is the master of the roster. Whichever way the Chief Justice divides cases, there can always be protests–why did you give these to him, those to him etc. A judge is supposed to do cases that come his way. It’s not as if there are few cases.

But what if there is a pattern of important cases going to certain benches?

Whatever it is–the Chief Justice is the master. He decides, and every judge should do what is on his plate and it’s not as if you have less on your plate.

I don’t think there is any problem [with allocation]. I think it is just being over sensitive. Let me tell you–in the last 30-40 years that I have seen, judges form benches with seniority. The Chief justice forms Bench 1, 2nd senior-most judge will be the head of Bench 2, 3rd senior-most judge will be the head of Bench 3 and so on. Suppose the 2nd senior-most judge is not placed in a bench of two judges, but is placed as a single judge which can be the case.

“The second judge, in the current scenario, will take affront—I was a senior judge, I hear appeals against single judges, I have been made a single judge myself and my appeal will go to two junior judges etc. This is what this so called seniority business has come to.”

Let me tell you—50 years ago, the Chief Justice of the Bombay High Court was MC Chagla. He was one of the most celebrated judges this country has produced. He used to sit as a single judge as a Chief Justice and an appeal would lie from his judgment to two junior judges. It was never thought of as an affront.

Then perhaps this incident has brought to light that the decades-old method of allocation isn’t working. What can be done to repair it?

If you have individuals, there will always be subjectivity. There can never be any foolproof system anyway.

Can we try something new?

Well, the new Chief Justice was part of the four judges—he may have addressed this system—I don’t know because there is nothing clearly available. But one way is to say that Chief Justice has no discretion, he is not the master of the roster, he is just first among the equals. And the computer does everything. So 30 cases come, one will go to court 1, second will go to court 2, third will go to court 3 and 20th case will go to court number 20 - this is one simple way of doing it.

But you must know the Supreme Court has had a tradition that I have seen, that important cases, cases of national importance, cases which are politically sensitive are never generally marked by the computer–they are taken to the Chief Justice by the registry. The Chief Justice will look at the sensitivity of the case and then decide where it is going to be.

Let me come to the verdict in Judge Loya’s case. You argued the matter on behalf of the State of Maharashtra and it was the state government’s discrete inquiry report that the Supreme Court largely relied upon in dismissing the allegations of foul play. One of the criticisms of this judgment was that the apex court had failed to protect the subordinate judiciary by refusing to even entertain the idea of an independent inquiry. What would you say to this criticism?

According to me, it was just sensationalising the death of a judge by questionable means and by a group of persons who were not really interested in any inquiry, but only in bringing heat upon a political functionary, namely Mr. Amit Shah, who was discharged by a judge, etc. in Mumbai. That was the object. The object was not that Mr. Loya died a mysterious death. That became the cover, the subterfuge. That was clear in this whole situation.

There is an age-old saying—justice must not only be done but also seen to be done.

In this case, I think, it was seen to be done too. Completely.

What was the downside of ordering an independent investigation?

Sensationalising. Means you don’t believe what those three judges said?

But they weren’t under oath.

So you think they will tell lies? All three of them?

Then why not come under oath. Why not allow yourself to be cross-examined? Are you not setting a precedent that when judges make statements in their personal capacity about incidents they may have witnessed, we should accept them as gospel truth? Isn’t that the precedent the court has set in this case?

Inquiries are not ordered at the drop of a hat. You must see what the three district court judges and four high court judges said. Should you bring all of them under oath? It is an absurd idea. Unless there is some gross discrepancy. Suppose one judge had said I wasn’t with them and they are incorrect in saying that we were together. I wasn’t there. Or the judge never died in front of me, then I can understand. Some great discord in things.

Let’s say a judge witnesses a murder. You are saying let him make a statement outside of the court and we can rely on that?

What I’m saying is that the example that you are giving and what I am talking about are completely different. The man died in front of them. There was a post-mortem, everything was done—what is the need for an inquiry? Just because you say or somebody says you should have an inquiry. There was a collateral purpose to all this.

It would’ve destroyed the institution. If you give in to these kind of people who have questionable motives, you are destroying the institution. That a judge should come in as evidence? One of the allegations made by these people in court was against the entire administrative committee of the Bombay High Court, which consists of five senior-most judges. Why did they transfer somebody, why not transfer somebody? And somebody filed a contempt petition against five judges of the Bombay High Court. There were so many things which showed that it was a matter only to scandalise; it had nothing to do with the death of the poor judge.

Okay; I’ll leave this issue at that. Let me come to the other important case of this year. In the Sabarimala verdict, the rights of women of a certain age bracket were upheld to enter the temple. Last year we saw the Supreme Court strike down Triple Talaq as unconstitutional. Do you believe that the apex court taking up cases on what a religion allows or doesn’t allow, a slippery slope?

It is a slippery slope to me. Insofar as Triple Talaq is concerned, I think it was rightly taken because the impact of this practice is disastrous upon a huge number of women belonging to a certain religion. Right from birth, it is drilled into them that if you don’t go along with the male, you may be standing on the road. Huge amount of problems, exploitation, and destitution has occurred. Therefore, the Supreme Court did the right thing. But when it comes to Sabarimala, the position is different.

“Sabarimala doesn’t have disastrous situations of life and death which happens to be the case in Triple Talaq. Sabarimala is a matter of religion. The 4:1 verdict has placed the right to equality over religious practice. So, according to me the judgment of the four judges is flawed.”

I feel the lady judge was right, because in a matters religious practice, you don’t have the problems of Triple Talaq and religious practices don’t follow logic or reason. Also, it is not such, that every woman in that area must go to that temple for worship.

Even in the western world, you cannot have a woman as the Pope or as the Archbishop of Canterbury. There are some things which have gone on in a certain way, which has nothing to do with equality. But by deciding against them, legally you are putting the right to religion over right to equality when both exist in the same chapter of the Constitution. Both are equal. One is not above the other. You have to marry both. You can’t marry both unless you say both are equal. You may have a right to equality, but I might have a right to religion, which also includes religious practice. It’s a tricky subject. The Supreme Court has placed the hearing in January and I think the debate needs to go on a little further.

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