Thread by @barandbench

Worried that the Supreme Court is not treating #ArnabGoswami and Siddique Kappan similarly?

Vidhi Centre for Legal Policy to hold a discussion with former Supreme Court judge, Justice BN Srikrishna & Senior Adv Salman Khurshid

@Vidhi_India @Arghya_justify @salman7khurshid

This conversation is part of a series
@Vidhi_India is organising called Conscience Keeper: Judiciary as the Constitutional Guardian.

Series in affiliation with the Kautilya Society at National Law University, Odisha, one of the several student societies set up by Vidhi.

Arghya Sengupta begins the session
@Arghya_justify

Arghya Sengupta (to Justice BN Srikrishna): The third schedule of the Constitution speaks of oath. You first took oath as the Bombay HC judge and then as Supreme Court judge. What does without "fear or favour means"?

Justice BN Srikrishna: The judge has to ensure that Justice fits in within the parameters of the oath. There is a saying in NaradaSmriti which means "just as a surgeon removes a foreign body carefully using equipment similarly a judge should remove injustice."

Justice Srikrishna: Now here lies doctrine of proportionality. Justice has to be proportionate to the injustice sought to be done away with. But this needs to be within the boundaries of the constitution.

Arghya Sengupta: The first time I heard about you was during the time you were heading the Srikrishna Commission constituted to probe the Bombay riots. What was your role and how did you balance your responsibilities?

Justice Srikrishna: whats interesting was I am a practicing Hindu and I am proud of it. I was known as a "teeka wala lawyer." When I was asked then I had to tell the Bombay HC Chief Justice that I wear my religion on my forehead not on my sleeves.

Justice Srikrishna: Bombay HC CJ has asked me then whether I was a Hindu or Muslim when I preside over as a judge. I replied as neither. When we judge it has to be completely devoid of religious coloring.

Justice Srikrishna: Law requires me to decide in favour of law and that is why once I had ruled in favour of a tobacco association and not that I was consuming tobacco.

Arghya Sengupta to @salman7khurshid : Is the picture which Justice Srikrishna painted of an ideal judge?

Senior Adv Salman Khurshid: Judges are humans. If an ordinary person behaves in a judicious manner then it is called in our place of UP, "yeh Munsiff mizaj hai." Everybody can't be Justice Srikrishna. Someone will try and someone will fail.

Salman Khurshid: When they falter and fail, guns are trained on you then my fear is the shots fired on lesser gods within the institution might lead to the collapse of the entire institution. You can't be a major from sound of music where children are treated as regimented manner

Salaman Khurshid: We must not lose sight of the fact that there are icons and we should not leave any opportunity to push other judges on that path.

Arghya Sengupta: That is an important reality check. The kind of solution you were suggesting a criticism can be of status quo

Sengupta: Do you think India today, given we live in age of transparency, this kind of solution to the Chief Justice might run the course?

Salman Khurshid: the art and impact of conversation is underestimated and pushed back. We need to return to be able to talk without being said that it has an agenda. Judiciary, I see as very tolerant.

Salman Khurshid: When a division bench tells another judge that he is in error and for that person to be taken in good humor is a great thing. A judge hears it everyday from their colleague. The one who said you are in error can sit with the same judge on a division bench later

Salman Khurshid: Judges are open to criticism but not like the way it is being done now.

Arghya Sengupta: Does your judgments being overturned hurt you?

Justice Srikrishna: Not at all

Arghya Sengupta: When you see on social media the kind of criticism the judgments recieve then its wide. There are judges in Supreme Court who were your juniors. What do you think they feel?

Justice Srikrishna: One thing can be to call that a judge is not intellectually superior

Justice Srikrishna: But calling someone politically sold out because of their opinion is not correct. What was the final verdict on the Justice Srikrishna Commission on the floor of the house? I was called a Hindu virodhi i am anything but that

Arghya Sengupta: There is a feeling that registry deliberately delays cases which are filed especially in context of Arnab Goswami case or Siddique Kappan case?

Dhruti Kapadia, Advocate-on-Record: In Bombay HC its on the urgency, but in Supreme Court it is the CJI's call

Kapadia: When a masters slip is moved in Supreme Court one has to follow up with the Registrar and see that its listed

Arghya Sengupta: So one has to follow with the registrar in the Supreme Court

Arghya Sengupta: Pratap Bhanu Mehta used the word Judicial Barbarism which i did not agree with. When lockdown started, 77 cases were listed the very next day. Arnab, Vinod Dua all were listed. But all top notch lawyers were involved. Is it about lawyers getting it listed?

Justice Srikrishna: Once I go to hospital and say my child is sick, please attend to him. But the doctor can say he is attending someone else. It might be the same case here. There are no set criteria to decide urgency and CJI might decide on gut feeling.

Justice Srikrishna: In that if he is persuaded by a strong lawyer and his argument then it might be a little failing of the judge. But can political motives be attributed to the judge.

Justice Srikrishna: Arnab is being represented by a lawyer well know here and abroad. But calling judge a political sell out is harsh.

Arghya Sengupta: Mr Khurshid, what is your take on this?

Arghya Sengupta: Do you think its an issue on which questions were not asked earlier and now being said because the trust factor has eroded?

@salman7khurshid:I have been a law minister briefly. I have known judges and for me to respect a judge is to maintain a distance from them

Khurshid: When there is a legitimate thing, then as a law minister you can share your deepest concern with the judge. Its about a broad aspect of governance and not about putting some one in prison. Implementation of constitutional values by government can be communicated

Salman Khurshid: One way to decide is to put the law officers in action and request judges, not to decide a particular way but perhaps to form constitution benches soon, etc. But one has to know the lakshman rekha.

Arghya Sengupta: You were a law minister a decade ago. Has things changed now?

Salman Khurshid: It can't be a transactional relationship with the judiciary. Many times judges ask for a new building as they can't function in a present one. Some CMs agree and some don't.

Salman Khurshid: it is incorrect to impute motives here.

Arghya Sengupta speaks of a study by Vidhi on judicial infrastructure where some district court buildings did not have washrooms for women.

Arghya Sengupta to Dhruti Kapadia: There is a lot of discussion now on Article 32 and Article 226. Court recently said it want to discourage Article 32 petitions.

Justice Srikrishna:We did this 15 years ago. Pressure on SC is so much that we used to ask litigants to approach HC

Justice Srikrishna: A judge in Bombay will know better a problem in Mumbai. The Supreme Court in Delhi might not be better equipped to deal with it. That's all CJI meant.

Kapadia: I tell my clients if one wants to go to Delhi as it would be cheaper in Mumbai. Once remedy is exhausted, then a SLP lies in Supreme Court. I never tell my clients to approach Supreme Court directly.

Justice Srikrishna: Article 32 is for extraordinary remedy

Justice Srikrishna: Any executive decision being hit by Article 14 can't come to the Supreme Court. Then all labour or service matters will lie in the Supreme Court.

Arghya Sengupta: What can the judiciary do to win back the trust so that all criticism is not made in public?

Salman Khurshid: it has a lot to do with the judges individually. There is a manner and method being able to communicate and they do it all the time.

Salman Khurshid: That kind of confidence and self assurance in the Bar must be revived. There is no reason why judge needs to feel a lot of gap needs to be made from the bar as they too come from the bar. It should not be said the judge has completely changed.

Salman Khurshid: Since we function in Supreme Court of small benches then when a case is listed before a strong freedom of expression bench then outcome will be something different than case being listed before a more conservative bench.

Salman Khurshid: CJI has to ensure there's a collegiate conduct in judicial pronouncements. The judges must see themselves as a team. CJI finds a way out by forming larger benches.

Arghya Sengupta: This cohesion is difficult with 34 judges. There must be separate constitution bench which only deals with Constitution matters and some only dealing with admissions.

Justice Srikrishna: At one time, Supreme Court usually had three judges in a bench.

Questions from audience:

1. Is it time to stop judges from holding post retirement jobs ?

J. SriKrishna: There were suggestions that If the president wants the judge to do something, it must be done without salary. Or that they must always be in service. But nothing as such

2. Why is Supreme Court skirting around non hearing of the abrogation of Article 370 case?

Justice Srikrishna: aim is to dispense Justice. If you don't do that then you fail the oath. The nearer you are to oath you are better off

Salman Khurshid: This is not the first government who gave brought out legislations which have upset the personal liberty brigade. Same thing happened with TADA. The sad thing is it does not filter down to trial courts.

Khurshid: When anticipatory bail was reintroduced in UP, magistrates were not aware of it. SC had to hold seminars etc. This is unforgivable. We have some outstanding judicial propositions.

Justice Srikrishna: Once I was hearing a rape case and there TADA was added to it so that they cannot get easy bail. How can you do it? Every executive wants to have a unquestioned way out from the judiciary.

Question: some people feel that a case must be listed before a particular judge?

Dhruti Kapadia: only way out is a judge treats everyone equally not with regard to who is appearing before the judge. It can be junior or a senior. Treatment must be equal

Question: if courts cannot engage with criticism on social media its okay, but their is statistical analysis that senior advocates helps in listing?

Justice Srikrishna:see as a judge if lawyer argues uselessly for 30 mins and a senior explain well in 2 mins then what should I do

Salman Khurshid: listing process is a lot better now than it used to be. You cannot tie your hands down to computer listing always because there may be something of national or human rights importance. You have to trust the Chief Justice of day . Well, even AI can help too

Arghya Sengupta: Anything in NaradaSmriti for judicial reform?

Justice Srikrishna: Computer cannot determine which cases among Article 21 is important. You have to trust the Chief Justice. If you can't then replace the CJ or wait for a new one.

Discussion ends.
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