Justice Govind Mathur, who retired as chief justice of the Allahabad High Court this April 13, gained repute as a pro-liberty judge who fiercely defended Constitutional values through his judgments, like in the Dr Kafeel Khan case or the ‘name and shame’ posters put up against Citizenship Amendment Act protesters.
Mathur, who perhaps lost out on a chance to become a Supreme Court judge because the collegium failed to recommend any name for the top court for more than a year, said judges’ role in appointment of judges must be curtailed. Excerpts from an exclusive interview:
Q. Why has the perception that the judiciary is working under the executive’s pressure grown in recent years?
A. Over the past three years, a perception has certainly been there…. There must be valid reasons for this, but I believe that the judiciary as an institution never works and must not work under any pressure. There may be a few individuals who may work under pressure, and if they are at the helm of affairs, it gives an impression of the institution working under pressure.
Q. The judges’ press conference in 2018 conveyed that independence of the judiciary was under threat.
A. I don’t believe the judiciary is working under political pressure. But some orders or actions give rise to questions in the mind of the ordinary citizen.
Judges must be free from all pressures, including pressure from the executive and the psychological pressure related to their future after retirement. Judges must ensure independence of judiciary by keeping themselves free from any allurement of re-engagement under the government after retirement. Unfortunately, we have several forums where retired judges are appointed statutorily.
To ensure independence of judiciary, there must be a constitutional prohibition to hold any government employment by retired judges.
Q. The Supreme Court was criticised for the ‘sealed envelope’ approach in the Rafale case and for the delay in hearing Jammu and Kashmir habeas corpus cases or the electoral bonds case.
A. It would not be proper for me to comment on the apex court’s order to have certain details in a sealed cover. Sometimes, some facts cannot be made public. The court may ask for placing such facts before it in the manner it considers appropriate, but this must be done sparingly. In the Rafale case, the circumstances that called for facts in a sealed cover were not disclosed. The court should have made at least the circumstances open. Transparency in the court’s working demands that.
The Jammu & Kashmir habeas corpus cases should have been taken up on top priority…. In the last few years, our sensitivity for personal liberty has lost its fine nerves and tissues. We are not treating habeas corpus petitions with the required sensitivity.
Electoral bonds have a direct impact on our election system and democracy. Validity of such a law should have been tested by the Supreme Court with top priority.
Q. Several jurists termed former CJI Ranjan Gogoi's nomination to Rajya Sabha as damaging for the judiciary.
A. To avoid any adverse impression in the minds of the public, it would have been appropriate that the nomination was not accepted.
Q. The Supreme Court was criticised for not intervening in the migrant workers’ issue last year.
A. After independence, it was the largest migration. People marched on helplessly with tearful eyes. It was strange that the apex court, instead of protecting the fundamental rights of the people at such a critical juncture, chose to shut its doors. It could have guided the government towards protecting the citizens.
Q. How do you view the role of courts during the pandemic?
A. To tackle Covid-19 is a responsibility of the executive and the courts intervened very cautiously. Several High Courts, including the Allahabad High Court, had special benches to deal with these cases and effective orders were passed. The vigil by High Courts played a positive role in implementation of Covid-19 protocol.
Q. How do you view the Delhi High Court granting bail to students charged under the Unlawful Activities (Prevention) Act? What do you think of the Supreme Court’s order in the case?
A. I welcome the order…. I feel the Delhi Police is invoking provisions of this act intentionally despite knowing well that its intent is absolutely different.
I would not like to comment on the Supreme Court’s order. But yes, the interim order is unique as it stays the precedent value of the High Court order without affecting its actual result.
Q. The Allahabad High Court intervened on issues such as charges against Dr Kafeel Khan under NSA, 'name and shame' posters against anti-CAA protesters or the anti-conversion law. What does this tell us about the situation in Uttar Pradesh?
A. Uttar Pradesh is the most populated state with enormous diversities and has been the favourite battlefield for powers that be. In this background, many vested interests operate here. Personal liberty and privacy of the individual are the biggest victims.
The judiciary carries a legacy to protect the rights of the people and the constitutional values. As Chief Justice of Allahabad High Court, I noticed a sense of pride among judges and the Bar with regard to this great legacy. I believe Uttar Pradesh judiciary will be in a lead role if there is any threat to our constitutional and democratic values.
Q. The Allahabad High Court's order to impose a lockdown in some UP cities was much discussed.
A. The order is well reasoned and provides adequate justification for lockdown. The justification of the order further stands fortified by the fact that the state government, in spite of having stay order from Supreme Court, kept the five cities under lockdown for the next few weeks.
Q. Observers say there is a change in the Supreme Court's approach to cases, that it has rediscovered its voice.
A. Courts are meant to impart justice and cannot afford to be shirkers. You can notice a change in public perception in the last two months. People's faith in judiciary is being restored. Now, judicial administrators have to come out of Corona fear and find ways to work in full swing.
Q. A crucial issue is the vacancies in higher judiciary. How do you view the working of the collegium?
A. There are vacancies as our system for appointing judges is the worst. I am also a product of the same system, but I feel the entire process is rotten. Several interests operate in it. It consumes a huge amount of time of the seniormost judges in non-judicial work. It promotes sycophancy among lawyers and judicial officers, and makes judges in the collegium arrogant.
Our Constituent Assembly was wise to confine judges to judicial work, but judges want to become babus by undertaking maximum administrative work.
Judges’ role in appointment of judges must be curtailed. The collegium system has adversely affected the credibility of the higher judiciary. We need a process that is more transparent and democratic. The government, after the Supreme Court judgment in the National Judicial Appointments Commission case, should have introduced a new legislation with desirable amendments.