‘We must get to the bottom of it. Acknowledge something wrong has happened, to apply balm to both sides in a way so that people move forward because there’s no point in looking back continuously.’
Retired Supreme Court Justice S.K. Kaul spoke with NewsX Editor-in-Chief Rishabh Gulati.
Q1. Let me begin with what has just recently happened since you were party to those proceedings—Article
370 and the judgement that has come from the Supreme Court. What is your satisfaction regarding the
matters of sovereignty, autonomy and the presidential orders?
A1. So, we will have to go back a little in history as to the assimilation of Kashmir into India. It followed a
slightly different path, and that’s the little distinction I have drawn in my judgement of whether some
sovereignty survived or not and when it got extinguished. Look into that background and the constitutional
provisions. 370 was envisaged as a provision for a slower assimilation rather than an instant assimilation.
You thus had the Constituent Assembly for the state, its recommendation, the Constitution for the state
being enacted, Constituent Assembly ending in 1957. But thereafter, different orders were issued in a slow
process of assimilation, and that’s something which nobody has really challenged or which is not accepted.
Till it came to a stage where the question was, is this permanent, is 370 permanent? And whether it can be
at all abolished at any stage of time. That’s a political decision.
The present dispensation of government felt that the time has come for a complete assimilation, and 370
should go. And that’s what they did. Now, the issue before the court, thus, was whether 370 as a provision
could be abolished or not. So that was the first thing in a broad perspective. The second was, was the process
correct or not.
Now, the debate has been, of course, more on the second process than on the first. But there are people
having different views on the first also.
Well, we have seen almost four years in the absence of 370. There may be some aggrieved persons, but by
and large, the situation has been moving towards normalcy, I would say.
Now, the five judges of this court found that it was a temporary provision. And if it was to remain
permanent, there was nothing to indicate it was permanent. Otherwise, it could have been done away with.
These are questions of legal interpretations. But those legal interpretations ultimately culminated in the
court coming to a conclusion that the government was entitled to abrogate 370.
Coming to the second part of it—the manner of doing so. Well, there was a peculiar situation which we
faced, which was arising from the absence of any state assembly. So there are views that no, it should have
been by a particular method. Government followed another path. On our analysis, this was a possible path
which could have been followed and that’s what has happened. That leaves the issue of the state being
reduced to a UT. Now carving out of UTs of states is not something new. It has happened before. So really
there’s not much of a debate, Article 3 envisages it.
The question which was sought to be raised was can a state carve out a UT. And then the remaining state
be also turned to a UT temporarily? Well, there could be one argument, which was said that if a UT could
be carved out, then more than one UT could be created. But we really did not have to go into it. We did not
go into it, actually. Because this question was posed to the government, to the Solicitor General, as to what
is the government’s stance on this?
And based on the statement made by the Home Minister in Parliament, it was said, we will hold the election.
So that’s why the court stayed away. Now, from this, there are many situations where the court does not
feel the necessity to decide an issue in a particular matter. It leaves the question open. So that question law
has been left open, in a sense.
Q2. Let me just take you through the epilogue of your judgement. Some very interesting things you
mentioned there. You mentioned the need for a Truth and Reconciliation Commission on the South African
model specific to the state of Jammu and Kashmir, given the fact of what has happened there in the past
20-25-30 years. What is your thought process behind this? How are you envisaging this suggestion?
A2. So, if you recollect, there was a hearing started a couple of years ago on 370. And it was going ahead
and then suddenly got a little diverted because a plea was sought to be raised that a five-judge bench could
not hear this matter. That to some extent diverted the hearing away and then it took some time to again start
the hearing with a different bench.
Even at that stage, when the hearing began, my thought process was to firstly, give a history to Kashmir.
That’s how I began my judgement, because somebody has to understand the conspectus of that place, to
know how the history has flowed there to understand the current scenario. The epilogue was something
which I had in mind since then, because one has seen the troubled times over more than 30 years. Now, if
we look at it, what India faced in 1947, we have a huge displacement of people. Partition. People went
through problems, and it took almost a generation for people to reconcile or get back to it.
But as time passed, generations passed, people adjusted to their new surroundings. Kashmir faced a similar
problem, because there had been loss of life. There were different discussions on what had happened. But
the bottom line was that four and a half lakh plus people had been displaced from the state almost overnight.
Other than this acknowledgement that they have been displaced, why they have been displaced, what they
have suffered…There has been really no dialogue on it.
And that’s something which I think festers with the community, apart from the fact that there should have
been prosecution. An aspect on which I’m aware, the community feels that well, even 1984 riots, we can
go ahead now, pin down the people, why should it not happen then.
The other view was it’s too far in the past, the evidence has disappeared. The two things can be compared
in terms of the diaspora which was there. So I felt that there must be a balm applied and the balm can only
be applied when you first accept that something has gone wrong, something did go wrong.
Then we had a scenario where a section of the people moved away, and the Army had to be brought in
because we were fighting practically a war. Army and paramilitary forces fought a war. Any war creates its
casualties, it creates its innocent casualties. So the people who stayed back had their own problems with
the warlike situation which was there, which has bred to some extent, distrust and a whole generation going,
not knowing how the earlier generation stayed together.
It was one of the places where people really did not lock their houses. We could go out for walks, there was
no problem. This was right in 1989. I’ve done it, where even if you’re staying in a farm area, in a forest,
you would go out for a walk with ladies, there was never a problem. So, something has erupted. We must
get to the bottom of it. Acknowledge something wrong has happened, to apply balm to both sides in a way
so that people move forward because there’s no point in looking back continuously. If you keep looking
back, we will not move forward. So the objective was this—let’s collectively move forward by applying
balm to whoever needs that application of the balm.
Q3. A Truth and Reconciliation Commission more as a dialogue process, a civil process or a process with
power and authority and structure to do an investigation, how do you envisage it?
A3. So the very concept of it is not to result in any prosecution. That’s not the idea. But the idea is to get to
the bottom of the truth. And so you get to it, in how it has worked in Africa—people who did the wrongs
came forth and said, we did that wrong. And the other side accepted that, you accept an apology. So when
things have gone wrong, it’s not a clear, relevant example—but in a home also, or in a society, sometimes
we have to say, I’m sorry, because you’ve done something wrong.
Q4. Let’s come back to complex matters, which pertained to the court—this entire episode of the NJAC.
Now, after having had time to reflect upon it, what are your considered thoughts now?
A4. The constitutional scheme provided for particular methodology of appointment, it worked till the 1990s.
The judiciary, in its wisdom, thought there is a change necessary, brought about that change. And it is my
view, it worked well. But there was some amount of non-acceptance, I would say, by the political class as
a whole, irrespective of which party they belong to. They felt the judiciary itself could not take over the
complete task. And it is they who should also play a role in it. Over that debates were held, commissions
were set up and ultimately the Act came into being—the NJAC, which was unanimously passed by
Parliament. That came to be challenged because there were some issues in that NJAC. Amongst others was
this aspect of a six-member committee where I believe there could be a deadlock, even if three judges were
there, because it required a 4:2 majority to get something through. Now, I have spoken earlier on this
issue—should there have been a casting vote to the Chief Justice or some other method have been adopted.
Ultimately, it was struck down. All this happened in a very quick sequence. So it can be said that the method
was not given a chance to see what was the problem. Could the matter have been kept pending and seen
how it works. Or could the so-called tweaking have been done? But that’s history. So the fact is that chapter
was over, and nothing prevents the government from getting another law into force keeping in mind what
has already transpired in that judgement, or what were the infirmities pointed out.
Now, post the NJAC judgement, the political class has not been able to digest, to accept, that the law brought
by Parliament unanimously has been struck down, that has brought a greater element I would say, of tension
in the working of it.
So you’ve had an up and down processes. Now, what I have expressed is my belief either operate this
Collegium system as the Collegium system is supposed to operate. It’s not that only the judiciary decides
that, in a sense, yes, the names emanate from the judiciary in the High Court. But there’s a consultative
process behind it.
Maybe everybody does not know and may not know about how it works. So it works in a manner where
the Chief Justice sits with the two senior judges. It’s not only that. I worked almost four years as Chief
Justice of two courts. You take inputs from judges across the board, you take inputs sometimes from even
retired judges whom you respect, from the bar, from others. At least that’s how I went about it.
And then you have a pool of talent, we would say, to consider. Sometimes government also suggests names,
and then you decide what names to recommend. The next process is the state government consultation.
They give their opinion, the Central government gives us opinion, the IB gives their opinion. Sometimes
complaints are received, so they are also flagged, and all this material comes to the Supreme Court
Collegium where the consulting judges who happen to be judges who spend time in that court give their
own opinion.
All this material is then placed before the first three judges of the Supreme Court to take a view to clear the
name or not.
Now, the past number of years if you see the clearance rate is hardly 50%, sometimes even lower than 50%,
which itself would show there’s a check and balance.
Now after that when the names are sent, government has the right to sometimes say no, despite your clearing
it, maybe government initially had an objection and we have overruled that, to reconsider. If they send it
back, the court may reconsider but may reiterate it.
Now of the two problems which are arising, the lesser problem is the reiterated names. There are only four
names pending of the reiterated names. But the names which are recommended and not sent back has been
to my mind a problem. So we don’t even know whether the government has an objection—what is the
nature of rejection? Today some 30 names are pending consideration for different periods of time. Now,
apart from that, even from that list, because when a person accepts judgeship, and the Collegium
recommends that it keeps in mind the seniority. So when some people are appointed, some are not
appointed, it disturbs that seniority also, that is another thing which has got flagged. And this is despite the
fact that timelines have been laid down by three judges’ bench of this court. So, some way that issue has to
be resorted to and I believe backroom dealing doesn’t help. It’s my view, NJAC would have provided the
platform for at least a dialogue between the government—the executive—not sitting out in the open and
telecasting it, but to give their perspective, and that may have facilitated it.
So we have today these names pending, we have six transfers pending, we had even three Chief Justices
pending, hopefully that should get through now.
So these delays cause a problem and as it is when we have so many vacancies, what happens is by the end
of the year, if you see, broadly we fill in the vacancies that will arise afresh. Pending vacancies more or less
remain the same. Sometimes there’ll be more sometimes there’ll be less.
Q5. Where have we moved on from the point of principle that became a difficult point, as you mentioned,
of the political class, legislative class, regardless perhaps of the subject matter, the fact that a legislation
could be struck down by the court. Have we made progress or is it still tense?
A5. I think it has made progress. Appointments have taken place, with a little to and fro, but it’s not as
smooth as I think it should be. So to work the system as it exists. And my concern is, if this is the law today,
then it must be followed. If there is a law, which government likes or doesn’t like is not material, you can
have a different law, but it is the duty of a court to enforce the law.
Q6. 52,000 record number of cases disposed of by the Supreme Court in 2023. Despite that, as you know,
there’s a large pendency. So is this then the fundamental issue regarding pendency, or other matters that
can be also brought to increase the number of cases being disposed of, reducing their time in court?
A6. One of the developments has been to at least get the correct data. Sometimes the problem is that there
was an issue of that, I would say—to get exactly what is the pendency. So at times these figures can be a
little deceptive one way or the other, including whether it’s disposal or pendency. The Supreme Court of
India is not really a Constitutional Court alone, it’s a Court of Appeal practically speaking. Many and
everything comes to this court, as the final court. Two out of five working days, which is Monday and
Friday, we are sitting on miscellaneous matters.
The number is large. There are miscellaneous matters either in the category of fresh matter or after notice
matters—bail matters, transfer matters, petitions. So about 40% of the court’s time is spent in deciding
whether it’s a case which needs to be finally heard or not.
Now, that being the position, only 60% gets left for the admitted method. Dismissal rates are quite high, it
must be over 80%. But judges have to read these files. They have to come to a conclusion. There is no
weekend, unlike what people think. So you have to read it, get ready for a Monday then starting from
Wednesday get ready for Friday, to see how to tackle the 50 cases plus which are listed before the court.
So now we’ve not found an alternative method to it. There are different countries who do not give so many
opportunities of hearing. US Supreme Court doesn’t—it decides in chambers what needs to be heard in
open court or not. But this sanctity of hearing in our country is such that practically everybody’s heard,
everybody gets that couple of minutes at least to work out what is to be done.
Q7. Let’s talk about some of the judgements. We have discussed 370. So on right to privacy, it’s talked
about as one of the landmark judgements. What has it fundamentally changed in the perception of people
and government?
A7. So privacy as a constitutional right has been recognized. Even in that judgement, we recognize it has
many ramifications. How will it work out? Timespan will show. In fact, it was said that—is this a solution
to everything? No. It’s possibly the beginning. And litigation would be generated I’d observed and litigation
will work it out on the way.
But to all our belief, the nine judges felt that the individual’s right to keep to himself information, especially
when you are not, let me say, a person holding a public office. Also, I had mentioned about the right to be
forgotten, something has happened at some phase of life. Now, unfortunately the system is such that almost
permanently that information will remain there.
And some of these issues are now being agitated in courts, as to what is the ramification of it. So law of
privacy will evolve and the challenges are going to be more now. Because technology, AI, other things
coming in, is going to raise the level of challenges and the possibility of intrusion into the homes.
Q8. Since you mentioned it, what are your thoughts because the concept of AI and deepfakes and anybody
can imitate you and me and make it almost real, and by the time we actually go through a process of
countering that, it might be too late in serious situations. Are the solutions technological? Primarily
technology has to answer technology?
A8. Technology will have to answer technology which is a challenging issue. Often what is happening is
that the development of the technology and its possible misuse, it’s a little step ahead of how you keep
checking it. But I believe especially in our country, where there is so much of talent available in this field,
we need to focus on it to see. And this intrusion can be a private intrusion, government intrusion, any kind
of intrusion, I really feel that a person should be capable of being left to himself.
Q9. Same sex marriages, from what I’ve understood of the judgement, it is a matter that has been left to
Parliament in a sense. But in your note, you mentioned the concept of civil union. So how do you understand
the concept of a civil union?
A9. This is a socially sensitive issue. So, from where it began, it began as a socially sensitive issue, even
decriminalization. I was part of it, because I had just joined the High Court bench when we issued notice
on this and then that journey, I will not emphasize, it went through a dismissal, went through to the Supreme
Court remitting judgements back and forth. So it took its own time to evolve in decriminalization. That
raised hopes of that community that the next step should be, because as we could accept it, many countries
in the world accepted, whether it can result in marriage. I think the issue is not only a label of marriage, the
issues were what flows from marriage. So, adoption, inheritance, many other things arose. When the matters
were taken up, there was some religious angles into it also. And those religious representatives had
intervened. The court didn’t want to get into the religious issue of it. So what was talked about was, can we
bring it within the ambit of the Special Marriage Act. The whole argument proceeded broadly on that
parameter alone. There were difficulties pointed out on the side of the government that there were many
other acts and enactments which will get affected.
So it was found difficult by everybody, that we can’t include it directly in the Special Marriage Act and
leave the nitty gritty to be worked out.
So one view, the majority view, which prevailed was let the government do it.
That marriage is not such a constitutional right that it has to be taken care of in any judicial proceeding. We
[the minority] felt that something must be done – next step must be taken. So, next step was what do you
call it? Don’t call it marriage, can you call it something else? Because marriage has its own connotations
under different religious laws.
So civil union was a phrase which was argued and was found to be in the course of argument an acceptable
one by the minority that it will not be called a marriage. But something else. I have at least said that it is
the other side of the same coin. Not touching something which is sensitive from the religious point of view.
And it will then work out how inheritance takes place. How adoption does takes place. But it’s a minority
view. I believe, sometimes these issues take time to emerge. I’m sure that community feels that there will
be a time when acceptability will be more. There’s a difference between thinking of my generation and the
younger generation, it will come up. So it’s a process of evolution slowly.
Q10. Speaking of process of evolution, you’ve been involved in the hearings on pollution in North India.
Now, it would seem that it is an obvious thing that we are all agreeing on it because we can all see it and
we are all affected by it. So it should be a rather simple intervention. But again, it’s a sensitive issue. It’s a
sensitive issue because it involves political considerations. It involves a community of farmers who are
involved – who are also suffering from the pollution, of course. How have you understood how this has
played out? And how frustrating has it been?
A10. So this battle between development and environment is a larger pain always. You will see it play out
in the country and world over. We’ve been trying to clean up your Yamuna. 1000s of crores have been
spent on it. We’ve not found a solution as such. Similarly, for pollution, it’s not a single factor. So, there
may be farm fires, there are number of vehicles there. Number of population. NCR region is bursting from
more people then logically can be accommodated.
So there are many ramifications of it. The government appointed a committee headed by the cabinet
secretary, with all stakeholders in it.
Now, what I felt was that if the committee is there– see, we are not, the courts are not technically equipped
to go into it. You have to make sure that a technically equipped group looks into it. The practical view is
taken looking to what the problem is, and enforce it.
So the courts job in these matters is to push ahead. It can’t say – go take this suggestion and implement it.
Because that will be problematic, in a sense, I think. And that’s what the court has been doing. Now, there
are suggestions made by that committee, the technical people in it. What was happening earlier was
invariably it would be taken at the time the problem cropped up. And I felt that’s not a solution. We took it
up a couple of times. But I’ve left it to the next bench to do it. So that it is regularly monitored. That’s what
I said. The hope is that by the next year at least there should be some improvement. There can’t be a magic
wand, but there should be some improvement.
Q11. Let me ask you a larger question. Because for people who are watching to understand, Judges of
Supreme Courts are also human beings. They have an opinion or viewpoint or history, a life story. But do
judges have an ideology? Because this is a global conversation that is this is a liberal judge, or is this a
conservative person. How do you understand it? Or is it dynamic?
A11. It is dynamic in the sense that human beings will have their own views. Is it said that the judge has no
political belief? Can’t be possible. You had political people like Justice Krishna Iyer, a celebrated judge
come in and do a fantastic job in the judiciary. The question is the ability to segregate your personal beliefs
and go by what is broadly called the constitution. So you develop and evolve a personality, whereby you
can keep your personal beliefs aside, but yet, it’s not in absolute terms. So there will be judges who are
perceived to be a little more liberal in say, the bail matters. A little more conservative, a little more liberal
on tenancy matters. So your own backgrounds and your experiences of life cannot be completely
obliterated. And we don’t have a single Supreme Court, as I said, we have 15 Supreme Courts sitting on a
miscellaneous day because there are 15 benches sitting. Unlike some of the countries where the Bench sits
as a whole. So it becomes more challenging, because the lawyer feels that depends on where the case goes,
there may be that little bit of a difference of perception which will arise.
Q12. What is the role of the judiciary then going ahead, because we’ve seen on some very basic matters,
where the judiciary plays a role that impacts people, I mean, there, in terms of the cars we drive, and on
pollution matters on seatbelts—a lot of innocuous things that potentially have saved 1000s of lives over the
last few years. And then big matters, like Ayodhya. So, what is the role of the judiciary going forward? Is
it where it’s politically inconvenient and the political class and legislature doesn’t want to get involved?
Leave it to you? Is it interventionist? Is it holding the fort? What’s the future?
A12. The footprint of the judiciary in India is quite wide, it is accepted. But it has to have self-restraint. We
can’t replace the government mechanism, there is an elected body which comes because that is the mandate
of the people. Some people may like it, some may not like it, but then you have chosen the first-past-the
post system of a democratic process. So it’s a check and balance. That check and balance, the judiciary
must provide in accordance with certain laws. Where the footprint increases is really in some environment
issues or Article 32 issues and others where there has to be restraint, yet, sometimes the larger good of the
people requires it to intervene. But I’m against intricate intervention. The intervention should be to set the
process in motion so that the people who are concerned or the expertise which is there is available to help
them in it. That’s why I said something – We are not here to support the government, we are not here to
oppose the government. We are not here to support the opposition or to oppose the opposition. We have to
perform a different role. Yes, in a stronger government, the check and balance becomes a little more.
Judiciary’s role, I believe was what Justice Sabharwal once told me, that healthy underlying tension is good
for the system, there should not be an absolute confrontation and if there is too much hunky dory business
[between] the executive and the judiciary, the role that says that’s not very good.
Q13. In an environment, where every political matter, whether who forms government, what forms
government, which MLA can be suspended, cannot be suspended, everything is almost immediately brought
before the court. And there is an urgency because some of these matters have to be decided within hours
and days. Is the system equipped to just accept the fact that these political matters will often come to court?
A13. Yes, political matters will come to court. The political angle has to be settled outside the court that’s
what I think. But the legal angle has to be settled in court. Today we are unfortunately in a scenario where
the difference of opinion is large so everything is coming to court, multiple times coming to court. And
also, everybody has an opinion on everything—Twitter handles—so I believe listening ability has declined
and speaking ability has increased for everybody. People will have an opinion on something and try to
create an opinion when they may not know what that matter is about. That’s part of the technology which
is in use today.
Q14. What is now your overall assessment, getting away from the technicality of it and the recent
experience. You see before you a changing India. There are some things which I am sure you are marveling
at, you are thrilled about – GDP growth, and we are the 5th largest economy. You can veritably see a new
sense of energy. There has been a population boom. The average age is 29. So, what is your assessment of
the state of the Union? Are we settled, are we institutionally strong, are we headed in the right direction?
A14. So, there has been a lot of change undoubtedly for the positive. We have a greater footprint all over
the world. But there are challenges within. The challenges within is creating of employment. The quality
of education we provide. Literacy is not the answer. The quality of education is important. Equipping the
people to make their earnings. These are all the challenges we face and from the judicial point of view the
biggest challenge is how to resolve disputes quickly. So I believe that so many cases in any system cannot
see the end of the result. He have to restrict the years of scrutiny. We have to work out disputes using
different mechanisms. Government has to reduce the amount of litigations it does, that is more than 50%
of the litigations. And mediation is another important part to move forward. This generation cannot afford
and will not accept litigations pending.
Q15. On that note, the question of decriminalising, having civil penalties rather than criminal offences
which has recently happened, the concept of community service. Are we sort of going in the right direction,
will that help a little?
A15. Yes, that should help. In that aspect in fact I mentioned in some of the judicial orders, that look into
75 years of celebration, let’s try to reduce the pendency of the lesser cases in the court. So cases with seven
or ten years sentence, social economic factors, the man is already under trial. So if he has served one third
period under trail do you want to take him to the full appeal or take a bond of good behavior and proceed
with it. You have to get these cases out of the system.
Q16. In a larger context, I know the subtext of it is still complicated, but on matters like sedition and other
laws and reducing the number of laws, are we at least addressing them or looking to address them?
A16. I still believe we have too many laws on different issues. The process takes a lot of time. And
everything gets prosecuted. You in India have a system where 99% cases are expected to be decided by the
court, you have an American system which I saw when I had the opportunity in California, where less than
3% cases get to court. We have to devise methods by which everything does not come to the criminal court.
We’ve had for example 138 Negotiable Instruments Act, lakhs of cases keep pending. We didn’t create an
infrastructure. Similarly Prohibition in Bihar, at some stage 16 out of 23 judges were only doing bails out
of it. There has to be an assessment of the legal impact, institutional impact to bringing in a law in to force.
RISHABH GULATI
NEW DELHI