On Drawing the Line: LSPR In Conversation with Hon’ble Justice A.K. Sikri


Kashish Makkar & Aditya Prasanna Bhattacharya speak with Hon’ble Justice Sikri in an exclusive interview for LSPR


Justice-Arjan-Kumar-Sikri-_photo-by-anil-shakya-2.jpg


A sitting judge at the Supreme Court of India and a part of the Collegium, Hon’ble Justice Arjan Kumar Sikri is known in judicial circles as the ‘Professor Judge’ for his stellar academic record.

In this exclusive interview, LSPR asked Justice Sikri a wide range of questions on various themes like Judicial restraint, the Rule of Law, Midnight hearings at the Supreme Court etc.


1

LSPR – Sir, we would like to start with a question on the midnight hearings that took place on the issue of the Karnataka elections. Many legal scholars and academicians have termed this move revolutionary and positive, while others have criticised the Court for this. What is your honest personal opinion about this?

Sikri, J. – To be very frank, this was not my choice. It was the Chief Justice’s decision, and he constituted the bench. So the Chief marked the case to us, and a special bench was constituted. Many people do not know why the matter was given to me, specifically. See, all the benches have a roster, deciding which subject matter they will deal with. I fall in the roster for election matters. But instead of just giving it to me and Justice Ashok Bhushan, which is the usual bench of two judges, the Chief also added Justice Bobde. This was a great move on his part, as this was a matter of substantial importance, and at least a three-Judge bench was necessary, if not a constitution bench. We then received a call from the Secretary General that the hearing was to take place immediately. I received the call at 2:30 am. So as far as that is concerned, it was upto the CJI.

Now as far as such matters are concerned, both sides of the coin have equal weightage. This has happened before as well, in case of the death penalty decision of Yakub Memon, who was to be executed at 7:00 am in the morning. This was a matter of life and liberty of a person, which made the midnight hearing necessary. But in this election dispute, you must understand that we have to cherish our democracy also. The CM was scheduled to take oath in the morning at 9 A.M. It becomes an issue of access to justice. The parties were ready to argue, and the bench was ready to listen to them. This holds true irrespective of the fact that it was not a matter of life and death. If all concerned parties are ready to participate in the hearing, then I see no substantial harm in conducting a hearing at midnight.


2

LSPR – Sir, we would like to congratulate you on being a part of the Collegium now. Our Constitution provides for three modes of selections for a Supreme Court Judge: Judge of a high court, a lawyer with 10 years of service, or a ‘distinguished jurist’. Why has there been no one from the third category in last 70 years? Prof. Upendra Baxi was considered at one point of time.

Sikri, J. – Yes, Prof. Baxi, Prof. PK Tripathi, your first VC Prof. Madhava Menon [the first Vice Chancellor of NLSIU Banaglore] were the three names that used to come up in this regard. Thereafter, there hasn’t been any talk at all about this. The idea is good and left to me, who is academically inclined, and, (laughingly) known as “Professor Judge” in judicial circles, I would prefer it.

It is desirable, as even in the US it has happened a lot. Otherwise, left to me, you give me an idea who could be a potential candidate, I will tell the collegium! I will be happy if it happens in my tenure.


3

LSPR – On a similar note, what is your opinion about the American system where the Executive directly appoints Judges to the Supreme Court? This is especially relevant with regard to Justice KM Joseph’s elevation.

Sikri, J. – Let me tell you very frankly, first of all when it comes to the American system: The American system is a flawed system. It is totally a politically dominated system and hence, not desirable as far as independence of Judiciary is concerned.

I will put it very clearly that yes, the US Supreme Court has produced brilliant judges. There may have been judges who were political appointees but have shown their moral fibre later on and portrayed their independence. But in last 20 years, if you see, the judges have been selectively picked up by the Executive. I am not saying that the Judges have been toeing the line of the executive. But if I am Mr. Trump, and I have a certain philosophy, I will choose a judge who would reflect that political philosophy. So someone might simply be picked up for their philosophy. Now, even if a judge does a professional job, there are back of the mind reservations that he will have in performing his duties, and therefore, the people will have the same reservations regarding him.

Now if you know today, in the US, the debate regarding originalism in terms of constitutional interpretation has started yet again. The concept of originalism is that the original text of the constitution is to be seen and the intention of the drafters must be followed. This concept is widely used in Interpretation of Statutes.

However, we in India, believe that constitution is believed to be a vibrant document. So, with the changing time, it has to change. Ultimately, vision of the constitution remains, basic features of constitution remains and the vision of liberal democracy remains. However, in light of recent incidents like lynching, cow vigilantism and mob violence, whether the liberal democracy can tolerate this, what should be the approach of judiciary to protect the rights of minorities? In this background, can the Interpretation of Constitution be static and originalist in its approach? Or it has to change with changing times.

In US, they are becoming orthodox and frankly, that is what Trump wants. We have our reservation about this political appointment system. When it comes to India, of course some say can be given to the Executive, no doubt about it, because we are another extreme where judges appoint themselves, and judges exercise complete control over appointment.

Having said so, in Indian conditions speaking about independence of judiciary, on paper (emphasis), it is one of the best systems to exist. However, transparency and objectivity needs to be ensured to make it the best system in practice as well.

However, I would still point out that there exists a healthy balance between Executive and Judiciary in terms of judicial appointments. In MoP as well the relevance of the executive in giving inputs on objective factors are considered and are given due weight.

People allege that the government delayed Justice KM Joseph’s appointment due to political reasons. I don’t wish to comment on that. Nor do I wish to make statement about this government or that government, these are general observations. The opinion of judges as a collegium is considered valuable. If I know about an advocate and know about his practice and experience in order to consider his merits for appointment, but I don’t have intelligence inputs about him. We have to rely on the executive for the same. Hence, where inputs of executive can be taken in objective manner and they can be respected by the collegium, a better system can be made. Joseph’s case apart, with respect to many cases, many proposed names have been dropped based on government input.

We also function based on principles of transparency and objectivity. If we work in tandem, this could be one of the best systems for judicial appointments.


4

LSPR – Given that we are discussing the US-India debate, a lot of American jurists have criticized Indian judiciary for being too activist in nature, to the extent of making policy interventions and policy regulations, one of the latest among them being the Highway Liquor Ban. What is your opinion on Judicial Restraint?

Sikri, J.(smiling) Even Indian academics, or for that matter the whole world, criticizes us for that. Anyway, I have written on it also. I believe in judicial restraint. At the same time when I talk of judicial restraint, there are few things one needs to keep in mind in Indian conditions. The poverty in this country, the illiteracy in this country, the population, and the diversity of ethnicities and religions create a lot of issues. Access to justice for marginalized sections is really cumbersome.

You compare us with Singapore, they don’t have anything except commercial litigation generally. Issues like right to food, rights of transgenders, human rights cases, they are not adjudicated there and in many countries. Even in western countries, while I don’t deny their emphasis on social justice, the complexion of those issues as compared to India because of the peculiarity of the Indian situation is different.

Our constitution has a chapter on fundamental rights. Article 21 is especially widely interpreted. Article 14, 15, 16 with respect to SC/STs is widely interpreted as well. In this light, when we speak about justice for marginalized communities in context of governmental accountability, efficiency and corruption, the need for judicial intervention arises.

Talking about good governance. The government has to spend for the welfare of people. But as Rajiv Gandhi said, if 1 rupee is allotted from Centre, only 15 paisa would be available for the public. In the Executive, a lot of policies are not implemented on ground. On paper funds are spent, but actions are not taken. As I said, Article 14 strikes against unreasonable and Arbitrary government action. I am talking about good governance cases, where we have taken action on issues like 2G, Coal Allocation etc.

Now, both the Supreme Court under article 32 and the High court under Article 226 have a very important power of judicial review. In India, like in the US, it extends both to judicial review of executive and legislature action. Unlike the UK, we can also strike down legislations. Therefore, once these powers have been vested and once they have to be exercised they are necessarily going to be really wide. Moreover, in context of our unique social milieu the court is bound to take a more proactive role.

Now while I support judicial restraint, it is important to understand where to draw the line (emphasis). I have to understand where to do my judicial duty to ensure good governance on objective legal framework of judicial review. Like in case of 2G licenses being challenges, if they are illegally granted, the court has to quash them. That is purely within judicial powers.

Now I will give you an interesting instance of where people believe we crossed the line of restraint, while I believe that in a sense we didn’t. Take the simple example of a purely residential area where I reside. Let’s say my neighbour starts building a commercial complex on his plot. Clearly, this is a violation of the law. Let’s say a PIL is filed, alleging that as per Municipal bylaws and the Master Plan, such construction is not permissible. Junior engineers in MCD department, knowing fully well that area is residential, are not regulating it due to corruption. When it comes to the court, the court can order its demolition.

Take the example of any city like Delhi or Bangalore, where illegal construction, unauthorised construction, or encroachment of public land is extemely rampant. Now, when a PIL is filed I tell the MCD’s engineers that this is not permissible. When some building plans are showed we pass orders that these buildings must be demolished and a subsequent follow-up report should be filed. Till this point, no one points fingers at the Judiciary.

Where the problem starts is the execution stage. The petitioner, who received a favourable decree for demolition, approaches us. He/she claims that the demolition has not taken place. Now we appoint a committee to visit the site and verify this claim. This committee reports to us that in the name of demolition, only a ceiling has been punctured. It is here that we have to appoint a committee like Bhure Lal committee to oversee the work that has to be undertaken by the MCD. We form committee of eminent citizens, advocates or government’s own engineers.

Now, here we are criticized that we are encroaching upon executive functions, but do you see under what circumstances we are forced to?

Now take another example. Let’s say in the monsoon season, de-silting of drains has not been done. The drains get choked, the roads would overflow with drain water and hence, traffic chaos is inevitable. It comes to our notice that the corporation has not done its statutory duty. We in our performance of our judicial duty, pass directions and issue mandamus that the work be done. Now, it is here that we are criticized for overtaking executive. I have already given you examples of executive non-compliance, understanding in that context, you will realize that this is how the concept of continuing mandamus arises. Initially only directions were given and the matter was left at that, believing that the executive would take action. But I have given you examples where despite orders the action is not carried out.

As a result, it leads to continuing mandamus. We have started monitoring their work, i.e., we tell them to file reports within time etc. It is because of executive non-compliance of judicial orders which makes judicial monitoring of their action necessary.

In the unique Indian experience that we have faced, sometimes, it becomes imperative that court has to pass these orders. Now, although we are working within the limits of the law, it is still perceived that court is encroaching on the Executive because the cases are reported as, “The Court has passed an order that de-silting should be done” or, “The Court has passed the building be demolished and it has appointed committee” etc. (smiling) Yes, we have gone into the executive domain, but to ensure that our orders are carried out.

It is to that extent that I would say that we have not violated the Rule of Law, while there are areas where Judicial Restraint should be exercised and the criticism is warranted and we need to look into that.


5

LSPR – Along a related line, how do you think Art. 142 (which enables the Supreme Court to pass any order to do ‘complete justice’) sits with the rule of law?

Sikri, J. – In my experience as a judge for five years, I believe Art. 142 is a very potent weapon to do justice. It is an important power which gives the SC the ability to do complete justice. Of course, it has to be exercised with restraint. Art. 142 cannot be used to the extent that one replaces the lawmakers.

That being said, SC judges come across hundreds of instances where justice has to be served, specifically with respect to minorities, it is here that Art. 142 becomes relevant. For instance, how compensation has to be given in motor accidents. Judgements have crystallised very clearly how it has to be done. In a particular case, the HC had given the judgement, for example, a person who is the sole breadwinner who passed away in a motor accident. The HC gives Rs. 40 lakhs but as per formula it should have been 35 lakhs. Yet, sometimes the Supreme Court will refuse to intervene for several reasons. First, because that person was the sole breadwinner for his family. Moreover, for five lakhs more there is no point in changing the order. Then the other side will bring a claim and the poor family would have ended up spending 5 lakhs more on litigation itself. This is an example under Art. 136, where leave to appeal wasn’t given, but similar situations arise under Art. 142 and the court has to do justice and it is here that Art. 142 becomes important.

Art. 142 is very clear. The orders under it cannot violate provisions of any law it cannot be contrary to laws, too. Constitution makers decided that the powers under Art. 142 be left to the wisdom of the SC judges, realising the importance of doing complete justice.


6

LSPR – Given that you mentioned about the calculation of compensation. SC consists of eminent jurists whose time is valuable. What do you think about the idea of setting up a National Court of Appeal vis-a-vis the SC, making the SC limited to interpreting the constitution.

Sikri, J. – It is a good idea. But, before implementation a thorough examination needs to be done. Today, the SC has become a court of appeal. Studies have to be carried out to show whether it is feasible.


7

LSPR – Proceeding now to our last question, sir. You have been an exceptional practitioner yourself, and now you have done an exceptional job as a Supreme Court Judge. Do you have any suggestions for law students who dream of following this path?

Sikri, J. – I will tell you just one thing, (emphasis) concentrate on hard work, there is no shortcut to it. You have to work hard throughout your life. When I was a student, my teacher used to say there are three stages in a lawyer’s career – First: Work, work and no money; Second: money commensurate to the work; and finally, little work and a lot of money.

There is some truth in this. But you must learn to distinguish between earning a lot of money, and being a good lawyer. If you ask the people belonging to the latter category, they will tell you that there is no shortcut to hard work in this profession. One lawyer whom I know used to say “It is not the number of years that matter but the number of hours in those years that you have put in.” This basically highlights the importance of hard work.

There are many lawyers who want to earn a high salary right from the beginning and start earning money. But that should not be the motive. What is more important, and, it is unfortunate that it is going down, is upholding moral and ethical values. There are many lawyers who earn a lot. But they indulge in many dubious practices. As a judge I know if a certain lawyer is narrating the facts to me, I won’t even open the file. I accept his version as the truth on face value. That is the faith that I have in him, and the reputation that he has earned. Then there are those lawyers whose versions of facts I will keep verifying. That is the negative reputation they have earned for themselves.

When it comes to a person who has done well, it is always the question of the whole package. It is not just intelligent. If you are intelligent, but rogue then you are not a good lawyer according to me. You may earn money, but you won’t earn respect in the court. Shining examples of honest, hardworking lawyers are Fali Nariman and Soli Sorabjee etc.

Be patient. There is no limit, and work hard. Don’t think you can achieve name and fame in a day. Be truthful to yourself, to your profession, and to the Court. These values, morals and ethics make a great lawyer.

All the Best!


Image Source: Anil Shakya / Indian Legal Magazine

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