Thread by @barandbench

CAN Foundation hosts Webinar on "Ensuring an Independent Judiciary under our Constitution: Confronting the Contemporary Challenges.”

The Keynote Speaker is former CJI, Justice (Retd.) Ranjan Gogoi.

ASG Aman Lekhi is co-speaker.

CEO of CAN Foundation renders welcome address.

ASG Aman Lekhi begins his address.

Lekhi on independence on judiciary:
1. Adjudication must be open on the whole.
2. There should be a minimum standard of fairness.
3. Independence of the Judges is critical. And it has to be intelligent independence.

ASG Aman Lekhi (on what is necessary for the independence of the judiciary):

... 4. Institutional coherence - the judiciary should speak in one voice.
5. It has to be fiduciary - the benefit has to go to the public. The fiduciary nature of power must never be forgotten.

ASG Lekhi: While executising the judiciary is a problem, judicialising the executive is an equal concern.

Lekhi says that the judiciary cannot take over for the executive while addressing concerns that the judiciary may not be intervening in certain issues.

Lekhi: There is a need to maintain the other checks - referring to 3 wings of power (Legislature, Executive, Judiciary). It is not just about the independence of the judiciary.

Lekhi adds, Until the judiciary works, the system will not work. It is the judiciary that sets and defines the limits.

There must be a balance, Lekhi.

When you're dealing with the justice delivery system, the semblance of justice is important, ASG Lekhi remarks.

it is not the existence, but the appearance of bias (that is significant). An appearance comes of (that) something that is wrong, Lekhi.

On the importance and role played by the Chief Justice, ASG Lekhi observes:

The Chief Justice is the face of that particular (judicial) system. As the face, he would be criticised. And he should be criticised - no judge is immune from criticism.

Judicial supersession has been an issue since the first Bench of the Supreme Court. As Prime Minister Nehru tried to supercede the then Chief Justice of India.

There should be criticism. The system should be robust enough to face criticism, ASG Lekhi says.

He spoke on some principles that should underlie criticism of the system. (1) Convention (2) Social ethics - what we think is acceptable (3) We should have respect for the system.

Under the guise of criticising the system, it cannot be undone. You cannot undermine the system: ASG Lekhi.

He adds that often criticism is done without context. Criticism must be contextualised, ASG Lekhi says.

There has to be nuanced criticism, says ASG Lekhi. He raises concerns about secrecy involved in matters concerning the system.

Collegium system, in my opinion, itself is of dubious legality, ASG Lekhi. He adds "But you have to talk about it in context."

On criticism of #Ayodhya judgment, Lekhi observes, "You cannot just run down the system by saying 'who is the author'?"

Says that the Court may have taken a call to speak as one.

Criticism that is abusive is only destructive, Lekhi.

The endeavour has to be to build credibility. Credibility is something to be recognised. Once credibility is established, the system will be robust enough to face robust criticism, ASG Lekhi.

Character and credibility alone will sustain the judiciary, ASG Lekhi.

Lekhi concludes by registering concern over unnecessary, extraneous criticism of the judiciary.

Former CJI, Ranjan Gogoi begins keynote address on Independence of Judiciary. Begins by saying his address may be a little negative.

Says debates have lost their academic, intellectual character. At the slightest opportunity, they have become vilifications of the idea or persons

Former CJI Ranjan Gogoi says that he has noted that there was much criticism of his participating in the discussion. But with more criticism, he was more determined to speak.

My experience with the #collegium system is that it is a sure way of keeping the executive out of the appointment process. This is not to say the Executive does not have a role to play: Ex-CJI Ranjan Gogoi.

The executive has a role in the decision-making process. The executive has got an equal role (but) the judicial voice is the ultimate voice: Ex-CJI Gogoi on #Collegium system

14 names were recommended for appointment to SC during my tenure, former CJI Gogoi says. These were accepted and appointments made in time. There was never any difficulty.

#Collegium

All recommendations with 24-25 CJs of HCs also were processed in time. No executive interference. What is the problem? : Ex-CJI Ranjan Gogoi on #Collegium system

The perception that a judge A is better suited than judge B is an individual perception. Between A and B are both good, and collegium chooses B while the public feels A is a better choice, that doesn't make the system bad: Ex-CJI #RanjanGogoi on #Collegium system

The #Collegium system is fine. The problem is with individuals running the system. The problem may not necessarily be from Collegium members, but from outside the Collegium but within the Judicial fraternity. I don't think I should say anything beyond that: Ex-CJI #RanjanGogoi

The Collegium is an excellent system. It has worked well. It has stood the test of time. Some amount of discipline may make it work better. some may not be satisfied but the idea is to be true to the law and task assigned to judges: Ex-CJI #RanjanGogoi

Regarding complaints against judges - #RanjanGogoi says that there numerous complaints being made, all of which cannot be entertained. If they are serious, they are taken up.

In such cases, the In house procedure/inquiry is available online. "Please read it", says #RanjanGogoi

The in house inquiry procedure is common to all judges in the higher judiciary. It does not contemplate the participation of lawyers, witnesses, or participation of outsiders: #RanjanGogoi

What happens at the end? #RanjanGogoi says:

If the complaint is to be dismissed, the report is not to be made public.

"There is good reason, it may embarrass the judge."

It the complaint is found to be of substance, the judge is asked to step down.

If he does not step down, he is asked to stay away from judicial work and the matter is referred to the President, Prime Minister for impeachment.

Then the Judges Inquiry Act comes in.

"This is the Constitutional Scheme for the protection of judges."

- #RanjanGogoi

In today's context, this scheme (of protecting judges) needs to be strengthened, says Ex-CJI #RanjanGogoi

Good people are not wanting to be judges, young members of the bar not keen to be judges, Gogoi says

"The office of the judge of a high court has been made so vulnerable that a lawyer is happy to continue as a lawyer. Don't forget the sacrifice a lawyer makes to become a judge."

Why would a lawyer sacrifice his lucrative practice? #RanjanGogoi remarks.

"You don't drive a judge through an enquiry straightway. You (judges) won't be able to function!"

You have activists, web portals particular examples of mainstream media - electronic and print - this is one group that has laid down "identification marks" for who is an "independent judge", demarcating certain qualities for identification

This is the danger: #RanjanGogoi

On the expectations projected by "this group", #RanjanGogoi says "... he must be eloquent on issues like rich-poor divide, oppression of marginalised, issues of suppression of Fundamental Rights.. must advocate free speech even to the extent of touching frontiers of defamation."

If judges don't conform to these expectations, they are attacked: Ex-CJI #RanjanGogoi

"If the judge doesn't do it, 'attack the judge' - not criticise the judgment. This is destructive of the independence of the judiciary."

"I believe I am in the midst of young people who are the future of the Indian judiciary. Give it a thought", Ex CJI #RanjanGogoi adds.

"The system is not averse to criticism. But, for heaven's sake, be dignified in your attack. Let there be an honest, intellectual, academic exercise. Do not impute on motives. It is destructive", Ex CJI #RanjanGogoi

"I don't think I should be saying anything more."

Responding to question regarding propriety of Post Retirement engagements of judges.

Ex-CJI #RanjanGogoi says that the question was not unexpected given what has preceded on the social media on this webinar.

I would put retiring judges in 3 categories, #RanjanGogoi says.

1. Retired Activist Judges: who immediately after retirement say many things not said while in office - many things regarding freedom of speech, judicial system. ...

2. Those who do professional independent work - commercial work, arbitrations etc.

3. Judges who perform post-retirement engagements.

You talk about post-retirement engagements as compromising judicial independence. What about the other two categories?

- Ex-CJI #RanjanGogoi

Who are the activist judges working with? Who is giving the platform to the? No questions asked.

Similarly, retiring judges getting friendly with lawyers doing commercial work - no questions asked. How does work flow to a few judges and not the others?

-Ex CJI #RanjanGogoi

On the third category, #RanjanGogoi refers to a 2016 Vidhi in 2016 that said out of 100 retiring judges, 70 accepted post-retirement engagements.

Does this mean the independence of judiciary is compromised? Ex-CJI #RanjanGogoi asks

It's an individual perception. So long as you are clear in your own minds, there is no problem. If a judge is true to his functions, post-retirement is okay. It depends on the individual, Gogoi

Addressing a question regarding the non-disclosure of reasons for Collegium transfers etc., #RanjanGogoi cites the example of a "Madras transfer."

If I were to upload those reasons, god know what would happen", Ex CJI #RanjanGogoi

#Collegium Transfer

The reasons which led to the transfer included conduct, character and dubious financial deals

"You want me to upload these reasons?", Ex CJI #RanjanGogoi

#Collegium Transfer

If the reasons for the #Colelgium transfer are uploaded, then criticisms would come that "you have done this whimsically, this arbitrary of the collegium." - Ex CJI #RanjanGogoi

"It's a very painful duty. It affects your sleep, your mental peace.. These are not seats of power. The seat of a judge doing administrative work is not a seat of power/comfort/indulgence. it is a seat of duty. It is not comfortable."

Ex CJI #RanjanGogoi on the Collegium system

"What do you do? Do you listen to people who say you are arbitrary or are exercising favouritism...? Who would want to become a judge if you listen to all this? Young people, think about it" - Ex CJI #RanjanGogoi

"We still have people of great wisdom... on the Bench. Let them flourish, let them do their work. Don't dishearten them. Support them" - Ex CJI #RanjanGogoi

"Why does a judgment need a (disclosed) author?" Ex CJI #RanjanGogoi responds to question regarding the author of the #Ayodhya judgment.

"During the tenure of a particular SC CJ (2015-16) I have a list of 32 cases decided by that bench where the author is not mentioned in the judgment. 32 cases, no order - no questions were raised", Ex CJI #RanjanGogoi

#Ayodhya

"Speaking for myself, I have been the author of 13 judgments where the name is not shown. These are reported SC cases, check (it) up", Ex CJI #RanjanGogoi responding to why the #ayodhyaverdict did not name the authoring judge.

"It is jurisprudentially and logically acceptable."

Why does a judgment need to be an author? It is signed by 5 judges. The 5 judges are the authors. Can you not imagine a system where the 5 have agreed on a conclusion, where they do not want to take credit: Ex CJI #RanjanGogoi responding to queries re author of #ayodhyaverdict

He adds,

"Is it not self-sacrifice? This question, I am sorry to say, is proposed by critics who want five judges to write judgments so that the #ayodhya judgement does not come out before my retirement!"

- Ex CJI #RanjanGogoi

As the session concludes, both ASG Aman Lekhi and Ex CJI #RanjanGogoi speak in favour of increasing the retirement age for High Court judges

Webinar ends after the vote of thanks.

System not averse to criticism, but be dignified in your attack: Former CJI Ranjan Gogoi during CAN Foundation Webinar on Judicial Independence

barandbench.com/news/system-no…

The problem lies with the individuals, why do you blame the system? Former CJI Ranjan Gogoi on the Collegium System

barandbench.com/news/the-probl…

Watch FULL VIDEO of Rajya Sabha MP and Former Chief Justice of India Ranjan Gogoi on Collegium, Ayodhya, Vocal Retired Judges of the Supreme Court and host of other issues

#RanjanGogoi

bit.ly/2LoccJ3

Why no questions about "Retired Activist Judges"/ retiring judges getting friendly with lawyers? Ex-CJI Ranjan Gogoi on Post-Retirement jobs

barandbench.com/news/why-no-qu…

"Why does a judgment need an author?" Former CJI Ranjan Gogoi on the controversy over the "anonymous" Ayodhya Verdict

barandbench.com/news/why-does-…