For transparency in the system

Justice Abhay Thipsay returned to Mumbai in March this year from Allahabad, where he had been transferred just 10 months before his retirement. When Justice Thipsay questioned the collegium’s decision to send him away from the Bombay High Court, which he saw as a punishment, he was told that it was routine procedure. Justice Thipsay is well known for his convictions in the Best Bakery case retrial, which restored people’s faith in the judicial system. He was, however, widely criticised for his order granting bail to the actor Salman Khan. He has also given bail to several Maoists and other supposedly anti-national elements. Justice Thipsay maintains that all his decisions were upheld by higher courts and therefore he stands vindicated. He spoke at length to Frontline about the system and its flaws.

Does the collegium system of appointment and transfer of judges ensure judicial independence? Or is it the bane of the system?

I would not like to comment on the collegium system or to say whether the system earlier existing was better. However, I can certainly say that the collegium system is not foolproof. It lacks transparency. Whatever may be the system adopted for appointments and transfer of judges, transparency would be required in the process. The crucial aspect is whether there is transparency in the system of appointments and transfer of judges. A system that lacks transparency cannot be good.

I don’t support the position that the executive must not have any say in the matter of appointments to the higher judiciary. Before the collegium system was evolved by a judicial pronouncement, appointments were made in which the executive was consulted. The general perception even in legal circles is that those appointments were properly made. No one says that the judges appointed during that period were inferior.

Now, the Supreme Court itself has recognised that the system of appointing judges to the higher courts needs to be improved and sought suggestions to improve it.

I will only give an example of how the collegium system has been at times irrational. About two-thirds of the judges of the High Court are appointed from the Bar. There can be genuine differences of opinion about their ability because there would not be fixed parameters for judging them. Therefore, it would be difficult to say that a particular choice was wrong. However, one- third of the judges of the High Court are appointed from the subordinate judiciary, and in their case, the comparative inferiority or superiority of a candidate is more easily demonstrable.

A number of factors are taken into consideration while grading a judicial officer. They include not only his legal acumen but several other factors such as his punctuality, leave record, complaints received against him, that is, record of the Vigilance Department, his general conduct with the members of the Bar, etc. On the basis of confidential reports/records on these factors, grades are given. These are selection grades and super time scales. Now, to get selection grade and super time scale, the judicial officer must conform to the requirements laid down by the High Court administration. It often happens that a senior judicial officer fails to get the selection grade or the super time scale because he cannot fulfil the required parameters, but his juniors get such grades. However, there have been instances where the judicial officers who did not fulfil or meet the criteria for getting the super time scale were elevated to the High Court and not juniors who were awarded such scale.

Is this not illogical? No sensible person can say that even when the High Court thinks that “B” is better than “A”, though “A” is senior, and therefore, gives a higher scale to B, “A” should be preferred in the matter of elevation to the High Court. This has happened in the Bombay High Court. We cannot ignore that such wrongs have taken place in the collegium system. The collegium system does not take into consideration the public perception, that is, the perception of the legal community about a judge while considering his case for elevation. Perhaps, it would be a good idea to involve the members of the Bar in the process of appointments.

The collegium transferred you to the Allahabad High Court despite your reluctance to be transferred. Did you express your reluctance formally? Did the collegium take you into confidence before initiating the transfer?

I did express my reluctance categorically. However, no reasons were given. By asking whether they took me into confidence, if you mean whether they gave reasons, the answer is “No”. When the process was initiated, I was told that the transfer was proposed for “better administration of justice”. It is generally accepted that the Supreme Court is not bound to give reasons for a transfer.

Why should a letter from a High Court judge making allegations of corruption, and sent to the Prime Minister seeking investigation, amount to contempt?

For this, we must understand the concept of the contempt of court. Anything that tends to interfere or threaten the administration of justice can amount to contempt of court. Though the provisions regarding contempt of court are not intended to be used for protecting the dignity of individual judges and they are not a substitute for an action for defamation, if allegations of a serious nature are levelled against judges, it has an effect of interfering with the administration of justice. Again, the question in such cases would be whether the allegations are bonafide, or whether they have been made with the object of terrorising or intimidating the judges or embarrassing them. Thus, simply because a letter has been sent to the Prime Minister seeking investigation, no immunity can be claimed from an action for contempt. It all depends on the facts of the case, including the nature and seriousness of the allegations, the circumstances in which they are made, the object behind making the allegations or defamatory remarks, and above all, whether all this can be said to have been done bonafide.

The Supreme Court has sentenced Justice Karnan to six months’ imprisonment. What are the powers of the Supreme Court and the Chief Justice of India over a High Court judge?

If you are talking about disciplinary or administrative powers, the Supreme Court and/or the Chief Justice of India do not have any such powers over a High Court judge. For the misconduct of a High Court judge, the procedure is only that of impeachment. However, the Supreme Court sentenced Justice Karnan by exercising its judicial power and not as an authority with disciplinary jurisdiction over him. A High Court judge may have certain privileges, but he is not immune from the exercise of contempt jurisdiction by the Supreme Court.