Former Justice of Madhya Pradesh and Chhattisgarh High Courts, JUSTICE FAKHRUDDIN (Retd.), who is presently Treasurer of Association of Retired Judges of Supreme Court & High Courts of India as well as Senior Advocate of Supreme Court, in an interview with MOHAMMAD NAUSHAD KHAN, said that bench and bar relation is the biggest challenge before judiciary and strong bar is sine qua non for strong and independent judiciary. Excerpts:
We observe Law Day every year. Has it served any purpose?
Law Day we observe because on this day our Constituent Assembly finalised it and gave it to us. The day was initially observed in the Supreme Court but nowadays it is celebrated everywhere in High Courts and local courts also. It has become more or less a tradition. On this day, we take account of what we have done, what we ought to have done, what are the goals which have been enshrined in our constitution and how we have achieved those goals. Precisely, this a day of introspection and we introspect ourselves.
We have also celebrated Constitution Day. Do you think India has lived up to her Constitution in letter and spirit? Or is there still a long way to go?
No doubt, we have lived up to the expectation of our Constitution; yet there is much more to be done. We have to improve on that each passing day for a healthy nation and for a healthy society as well. We are progressing and we have to move in the direction that can ensure our constitutional goals. We have developed consciousness among the people. Even legal people are being made aware of their legal rights and they are utilising that forum and media is also taking up the cases and are also highlighting whenever it is required. Above all, we have to see that the constitutional rights of the people are not encroached upon. Year by year and day by day we are on the improvement side. It is good to see that people are becoming aware of Law Day and even the Government of India has also observed it as a Constitution Day which is a good sign.
There is sharp division on the Collegium System in the legal fraternity itself what’s your take thereon?
There could be no system unless and until it is implemented in the right earnest. The first system we had was presidential appointments in consultation with the Chief Justice of India. It worked very well till certain incidents occurred. Afterwards people thought that there must not be too much intervention of executives. You can see the first judges’ case and then the second judges’ case and then the reference came.
The Collegium System evolved within the judiciary. At that time also there were two opinions about it. In fact, there was setback when in ADMJ V/S Shivkant Shukla during Emergency and it was our High Court in Madhya Pradesh which had held that Executive had no power to take away our every fundamental right during the Emergency. In this, I had also appeared. The judges held in our favour. But when the Government appealed against it, it was set aside and that is known as Black Day. The Collegium System started with high hopes but after 20 years it was felt that there are certain things like transparency, accountability and quality that have to be there.
There is also criticism that Collegium System is an empire within empire?
Yes, the Government and some also from the Judiciary have criticised it. Now for the first time the Supreme Court opened its door to the public at large for suggestions. Suggestions have been compiled and arguments have also been heard for many days on all those aspects. The Government viewpoints have also been discussed. State Governments also came forward. Individual institutions, bar council, various bar associations, various individuals, jurists and educationists, social organisations have participated in this debate and therefore we are expecting that something good may come out. Let us see what ultimately comes out.
Do you think the Apex Court order on the Collegium reveals that the Supreme Court is independent and it is not going to succumb to any kind of pressure?
See, virtually the Supreme Court or any court depends on the bar and when the bar is strong, it will reflect there. And when the bar pushed the relevant material before the court, the court is there to apply its mind. The Supreme Court ordered in its wisdom, thought on it and delivered the verdict. So far the pressure is concerned, I can say without any fear of contradiction, I had been judge for about 12 years and never faced any kind of pressure. In all those years, I have not experienced any political pressure.
When the bar is independent and vigilant, the Supreme Court will remain independent. It is the bars who judge the judges. And the bar represents the will of the general public. After all both sides are there and the judges are required to have only patient hearing. Once the judgment is given after patient hearing, the judgment has to be accordingly. By and large, except in some cases which cannot be ruled out, the judgments were without any pressure. The court gave the verdict on the collegium in its wisdom and there is dissenting voice which is the beauty of the Judiciary. Of course Judiciary has kept its independent identify.
In a diverse country like India, do you think Uniform Civil Code would be applicable socially and legally?
It is a very complicated issue which comes every time and is debated upon. Time to time, the courts have expressed its view. But it has yet to be debated and no decision on it should be taken in haste. Because ours is a country which believes in unity in diversity and therefore it is the need of hour that it is thoroughly debated at all levels, not only in judiciary but in every sphere. The Legislature, public at large, political parties, social groups, civil societies, all have to discuss it and all aspects have to be taken into account. If one set of culture and religion is thrusted on others, India is not going to accept it. People of India will not accept it. It should not be guided with any emotions and also it should not hurt anybody’s emotions. India is a multi-lingual, multi-religious and multi-cultural country and therefore diversity has to be there as it is the essence of our country.
When you look at Judiciary, what makes you happy and what troubles you the most?
I have been in the Judiciary for the last 47 years. So far as I am of the opinion I am in fact quite happy because if Judiciary is fine, I have to feel happy about it. In our Judiciary dissent has a role to play and dissent is also respected. Our Judiciary, whenever it has gone the other side, it has corrected itself. Our Judiciary by and large has done its best. But also it would be wrong to say that judges are always right and judges have on many occasions overruled themselves. I feel that check and balance is there which is a healthy sign and must be appreciated.
So long as Judiciary remains independent, I think nothing is better than that. If you compare it with the rest of the world, ours is one of the best. What troubles me is that sometime judges don’t hear and ego comes in because patient hearing is required. Sometimes judges become impatient and some other time they try to put their own personal opinion and one has to be above that. But then there is bar to check it and judgments are also criticised; they are debated; hue and cry is raised and then matter is brought to court for reconsideration, further thinking and further probe.
So what according to you are the challenges before the Supreme Court?
The bench and bar relation is the biggest challenge. There has to be very openness, consideration and mutual respect. Ultimately we get judges from the bar. The bar trains them and they are representatives of the bar on the bench. Once they join the bench, they have to hear both parties and decide upon. With globalisation and commercialisation, stakes are very high and questions are raised and would always be there. Therefore, strong bar is sine qua non for strong and independent judiciary. The Judiciary is also facing with the crisis of character everywhere. And when there is crisis of character between parties, lawyers and witnesses then it will filter into the Judiciary as well and the result will be bad. We have the black sheeps in the Judiciary also which we also find everywhere.
What would be your one piece of advice to law students?
We must take it virtually as a divine act. A Judge must decide with compassion. The students are required to study every minute details, especially the dissenting judgments like many judgments delivered by Justice Hedayatullah when he was judge in the Supreme Court and others. I myself have written so many dissenting judgments. Our conscience has to be clear either as law students or in any other profession. It is a very good and challenging profession; I have enjoyed it and my all children are in this field and they too are also enjoying it.
Recently you visited many foreign countries and interacted with many legal luminaries with high rank and file. What was their impression about Judiciary in India?
During my visit I interacted with the Chief Justice of UAE. They have good infrastructure and are very much advanced. He expressed his concern about pending cases in India and asked how we are going to solve it. Female lawyer ratio in the UAE is much higher as compared to that in India which is notable.
What is your memorable moment in this profession which you feel important and would like to share?
There are many. There was a case in 1980s; two persons Amar Singh and Shahzad were tried under 396 and were sentenced to death. Their appeal in the High Court and the Supreme Court was turned down. Then one day before the time they were to be hanged, one welfare officer came and told me that they are going to be hanged and their mercy petitions are pending. We took up their case and sent a telegram to the Chief Justice of India. We made lightening calls to the Chief Justice and informed about the situation. That telegram was treated and hanging was stayed. Just by telegram and telephone talk the hanging was stayed and remained stayed for 11 months.
Another instance when I was Acting Chief Justice in Chhattisgarh, an old lonely lady with a walking stick somehow entered into the court premises and approached me. She was weeping. I consoled her, heard her and came to know that her house owner had misbehaved and thrown out her belongings. We took up the case on humanity ground and she got justice. For me it was very satisfying.
December 6 is approaching. Do you have any particular stand on the Babri dispute?
The matter is in the court and therefore I would not like to comment on that. What I would like to say that both communities should have faith in the Judiciary.