Fraud on banks, more by the rich, says RBI’s K. C. Chakrabarty

BL :NEW DELHI, JULY 26:  2013

"When the times are good, the rich steal. When the times are bad, the poor people also steal. But this means rich people are stealing more," said K. C. Chakrabarty, RBI Deputy Governor.

“When the times are good, the rich steal. When the times are bad, the poor people also steal. But this means rich people are stealing more,” said K. C. Chakrabarty, RBI Deputy Governor.

An analysis of the frauds reported in the banking system over the last two decade shows that the number of frauds had not gone up significantly, but the quantum has increased manifold.

Loan-related frauds are a major concern for the central bank, Chakrabarty said.

The number of reported frauds in the banking system over the last 10 years was 1,76,547, and valued at Rs 31,400 crore, he added. In the last 25 years, a mere 61 fraud cases (involving Rs 50 crore or more in each case) accounted for a whopping Rs 13,000 crore, through 208 bank accounts.

It is not transaction-related frauds (like credit/debit card, and so on) that are a worry, but loans-related ones, rued Chakrabarty at an Assocham conference on ‘Financial Frauds’ in the Capital on Friday.

“Majority of the frauds are wrong sanctions at the highest level of the banks. The problem is we are not able to take definite action in definite timeframe.”

The Deputy Governor expressed disappointment that banks were indifferent to monitoring large frauds and whatever fraud reporting was happening, was in silos.

Some of the reporting of frauds in large transactions happened only after they had been recognised as non-performing assets, he said.

Chakrabarty also stressed the need for a proper definition of ‘fraud’ in the banking system. At the same time, he said banks should not get confused between “loss” and “fraud”.

(This article was published on July 26, 2013)

In Conversation with Senior Advocate MK Damodaran

B&B;Murali Krishnan On July 23, 2013 - 10:35am

Senior Advocate MK Damodaran is a very popular figure in Kerala, well known for defending the Naxalites during the late ‘60s and early ‘70s. 

He served as the Advocate General of Kerala during a period when infamous scandals like the ‘Ice cream parlour case’ and the ‘Suryanelli case’ rocked the State. 

In this interview with Bar & Bench, he talks about his initial days as a trial court lawyer at Tellichery, his experience as the Advocate General and his views on various legal issues.

B &B: Could you tell us about your initial days and how you entered the profession?

M.K. D: It was quite accidental. I was very active in politics and students’ movement when I was doing my studies. I never intended to take up law as my profession. I am not from a family of lawyers but from an agricultural family.

But, since I was very active in the political movements in North Malabar, some of my friends suggested that I should do law. So I joined Government Law College, Ernakulam. I graduated in 1963 and enrolled as an advocate in 1964.

B&B: How were the initial years of practice?

MKD: I started my practice in Tellichery. I had good work during my initial days. I was the junior of a great lawyer in north Kerala, AVK Nair. He was a leading criminal lawyer in north Malabar. Subsequently, I thought that I should not confine myself to criminal law. Then my senior suggested [joining] his classmate KM Namboothiripad. He was one of the best civil lawyers in north Malabar. So I began attending his chamber also. After my enrolment, I was attending both the offices. I was getting lot of work on the civil side and the criminal side.

I became independent in two years and started my own practice; but I used to attend my seniors’ offices also. I used to deal with cases from Kasargod to Kozhikode. Within one year I had conducted a murder case and within 2 to 3 years, I was getting good Sessions [Court] work. The period from 1964 to 1977 in Tellichery was very good and fruitful.

Then, during 1976 - 1978, I was jailed for 8 months during the emergency. That was the motivation for shifting my practice from Tellichery to Ernakulam. But for my detention in jail during Emergency, I would not have shifted.

When I was arrested, I was one of the top lawyers in north Malabar. During the height of Naxalite movement, I was engaged by most of the accused in the ‘Thalassery Pulpally’ case. Out of the 123 accused, I defended about 67. It was a very well known case in Kerala. In most of the cases involving offences committed by Naxalites in north Malabar, I was defending the accused which bolstered my popularity as a lawyer.

A large number of murder cases of very serious dimensions, that attracted wide public attention,  sprung from political fend and hostility and I could successfully defend the accused.  Case relating to the suicide of an S.I. of Police while on duty in the Police Station, popularly known as 'Soman Case' which was charged as a murder case; the case of setting fire to a Bus with passengers on board during the occasion of a political agitation resulting in the death of a few, the case of the murder of a political worker in which two sitting MLAs were the accused, two criminal cases in which the legendary Gangadhara Marar attacked a Cabinet Minister and the Governor of the State etc. are some  such cases.   

B&B: So, did your role as the defence counsel for Naxalites lead to your detention during the Emergency?

MKD: No, it had nothing to do with the Naxalite movement. It was connected with the anti - Emergency movement. The only provocation to shift to Ernakulam was my jail life. After I was detained in prison, I thought that it was better to shift to Ernakulam. There are three reasons; one was that I did not want to be very active in politics; instead I wanted to concentrate on the profession. There is another important reason. My parents were alive at that time. They thought that if I continued at Tellichery, I will be active in politics and will end up contesting the elections. Due to those reasons my parents also advised me to shift to Ernakulam.

B&B: Yow have served as the Advocate General of Kerala. Could you tell us about that experience?

MKD: I was the Advocate General (AG) of Kerala from 1996 to 2001. My experience as the AG was splendid. There were several instances during my tenure as AG which were very competitive and challenging; there were several crises during my period. I feel that I was successful as an AG. During that period, the Chief Minister of Kerala was Comrade EK Nayanar. My relationship with the Chief Minister was splendid. He was one of the best Chief Ministers Kerala has seen.

B&B: The Coalgate controversy led to the resignation of the Additional Solicitor General Harin Raval and the Attorney General’s role is still under scanner. What are your views on the same? How do you think a law officer should conduct himself?

MKD: It was very unfortunate. According to me the Attorney General or the Additional Solicitor General can’t go to the Press and explain their stand in public. It will create controversy. It is better to remain silent and clarify things in the court.

He should not be associated with the investigation. Our system clearly commands that the investigating officer is independent; he should form his opinion about the case after investigation is over and submit his report to the concerned legal officer for his consent before he files the charge sheet. That is for the purpose of correcting the legal aspects alone and nothing more.  (The law officer can’t guide the investigation). The role of the Advocate General or the Attorney General is only in the Court. He cannot dictate the investigation team which is [supposed to be] independent.

B&B: Have you faced political pressures during your tenure as AG?

MKD: I never faced such pressures. I was not controlled by anybody. I worked independently and formed my opinion. My advice to government was never rejected.

B&B: A few weeks ago, when a judge of the Kerala High Court had given an interview to a TV Channel, an advocate had filed a complaint in protest. Your views.

MKD: As far as the Bar Council Rules are concerned, neither advocates nor judges can go to the Press. We follow the British system. Propaganda and publicity is associated with the American system. In US, advocates are allowed to advertise, but not in UK. We follow the system prevalent in UK. So, my view is that publicity should be avoided. People should come to the lawyer after coming to know about his experience, knowledge and accomplishments in the profession. If publicity and propaganda is permitted there is a good chance that even inefficient lawyers will get good work. The clients may not be informed about efficiency, experience or knowledge in law of such a lawyer.

However, in this particular case the concerned judge was only clarifying his role in the issue and I don’t think he is wrong in doing that. He did not go to the Press for publicity but was only clarifying his alleged role in a raging issue and I think he is completely justified in doing that. Certain times a judge is entitled to clarify when there is an adverse propaganda against him. Nothing prohibits him from doing that.

B&B: What do you think about the relationship between the Bench and the Bar as it stands today?

MKD: It is smooth. There is no confrontation between the Bench and the Bar. In Kerala, I find the relationship between the Bench and the Bar very smooth.

B&B: Our criminal laws have undergone amendments after a spate of crimes against women? What do you think is the reason for such increase in the crime rate against women?

MKD: I think one of the reasons is the inefficiency of the investigative system and the police. Another reason is that our educational system does not guide students during their formative years about morality. Subjects relating to moral life are not being taught at schools. So degradation of morals is one of the reasons. Another reason is poverty as it leads to prostitution etc. Men are not trained by our system on how to lead a humane life.

Formerly, in north Malabar when a girl aged 16 or more entered a house, even the eldest male member of the family used to stand up. It evidenced the respect towards women. That culture has disappeared. There were isolated incidents even then but now it has increased a lot. Even today I read about the gang rape of a medical student in Manipal.

B&B: Your view on the judgment delivered by the Kerala High Court in the ‘Suryanelli case’?

MKD: There are different views about it. I have not really formed an opinion on that.

B&B: What is your opinion about the juniors at the Bar?

MKD: Juniors at the Bar are not serious these days. They do not spend time studying. In my early days, I used to attend the office of my senior from 7 am to 10.30 pm. During the court hours I would be with him. During my initial 3 to 4 years of practice, I used to sit in the court hall from 11 am to 5 pm except during the intervals. Irrespective of whether I had case or not, I used to observe senior lawyers conducting cases in the court.

During my days nobody was serious about the income. However, the junior lawyers these days are very concerned about their income. There might be several reasons for this. I don’t find fault with them. Poverty, lack of funds etc. might be the reasons. Another change is that earlier (during 50s to 90s) every lawyer used to attend a senior’s office for at least 5 years. But nowadays lawyers start independent practice straight out of college. In my view, that is not advisable.

B&B: Do you think the National Law Schools have been successful in their object?

MKD: No doubt! It has improved the standard of our students. In our days, legal education was not taken seriously by the government. Students hardly used to attend classes. Also, in those days lawyers’ profession was restricted to students who had their parents or relatives in the profession. Usually those who did not make it to engineering colleges or medical colleges used to opt for law. But this trend has changed. Brilliant students now prefer law.

B&B: Any advice for young lawyers and students?

MKD: They should be serious about their studies and should acquire knowledge in law. They should be committed to profession. Wide reading in law and other subjects connected to law is very important.

B&B: What are your hobbies?

MKD: I don’t have any hobbies. I am in my office round the clock and committed to my profession even now. I leave my office shortly before my case is called. Since I live close to the court I can afford that luxury. Formerly, I used to attend public meetings and seminars and I used to speak across Kerala.

Let us do away with ‘Your Lordship’ and ‘My Lord’

LL :P V Dinesh:27 July 2013

Fali S Nariman often tells interesting stories. He writes in his autobiography (Chapter 5):

          “…a city court judge and a district judge must be addressed as ‘Your Honour’, and (most important of all) a high court judge must always be addressed as ‘Your Lordships’ (believe me, the judges simply love it). Years ago, I appeared before a judge who had just been’ elevated’ from the city civil court to the high court, and was particular about how he should hence forth be addressed. My opponent who had appeared before him in the adjoining building, the city civil and sessions court, imagine he was still addressing a city court judge and went on calling him’ Your Honour’. The judge grimaced at this indignity. My opponent had a good case. But he lost! Judges are human,” he concludes making a succinct point.  

Even Fali S Nariman, who rejected the offer for judgeship in Supreme Court and High Court could not resist addressing judges as ‘My Lord’.  

We all know that for him it is merely a usage as most of the Judges address octogenarian  Super  Seniors like Fali S Nariman, K K Venugopal, Ram Jethmalani, Shanti Bhushan and others as ‘sir’ in their private conversations.  

All those judges who had a matter in the Supreme Court when they were lawyers themselves must have briefed these gentlemen at least once. And I am certain that they must have been lovingly scolded.

The system of addressing judges subserviently does have a feudal hierarchy. In Mofussil Courts and Magistrate Courts, it is always “Janab”, “Huzur”, “Sahab”,  and when you go up to the High Court, it becomes ‘My Lord’  and ‘Your Lordships’. In southern India, lower Courts are addressed as ‘Your Honour’. Look at the Indian Army for instance; the colonial relic is quite visible. Within Army hierarchy, at the bottom rungs you meet the Naiks, Havildars and Subedars and while going up the ladder, it changes to Captain, Major, Colonel, Brigadier, making it sound like an English regiment.

These days, increasing number of lady Judges have brought in new terms on the table. I have witnessed, on many occasions, a lady Judge complaining for being addressed as ‘My Lord’. Indian Lawyers who are trained in a male dominated judicial system are not used to saying ‘My Lady’ or ‘Ladyship’. There is yet another issue. When the judges sit in combination of both genders, if one addresses them collectively as ‘My Lord’, it would appear that one is ignoring ‘My Lady’ and vice-versa.   A politically correct addressing system, which is gender neutral, is yet to be evolved.

Some lawyers use the term ‘My Lord’ ad nauseam, and in effect it acts as a respectful abuse of Hon’ble Judges. An overdose of ‘My Lord’ or ‘Lordships’ is reprehensible, and the lawyer uses it as just a conjunction to bring flow into arguments. A typical example of such an argument would be, “My Lords, what had happened ‘my lords, the petitioner ‘my lords, he filed a suit ‘my lords”. I must admit, there have been times when I have sat back counting the sheer number of ‘my lords’ in the argument. It is a time pass of sorts in  a court.

Another interesting aspect is that some Judges refer the  judges  sitting along with them as ‘my lord’ instead of ‘my brother’ or ‘my sister’. Is it not a passive direction to the lawyers to address them always ‘ My Lord’? I don’t know! No doubt, in literal sense the Judges are Law Lords, but isn’t it too archaic? While loosely criticising this system, I must also confess that I too have not liberated myself from this addressing regime.

The most unfortunate aspect is when members of the lower Judiciary address the High Court and Supreme Court Judges as ‘ Your Lordship’ or My Lord’  even when they attend social gatherings like marriages of High Court Judges’children. Recently, members of Kerala subordinate judiciary were having an interaction with Justice K T Thomas, as part of their training programme.  The respected judge who is in his retirement bliss, could not withstand the ‘repeated my lords’ and firmly admonished them.

Another area where ‘My Lord’ really works is the practice in Tribunals. The retired IAS officers who act as members of Tribunals get elated when they are addressed as ‘My Lord’. Infact, many of them feel like they have been straight away ‘elevated’ to the High Court or Supreme Court.

Two Judges of Delhi High Court are an exception.  Justice Muralidhar and Justice Ravindra Bhatt have specifically told the lawyers not to address them as ‘My Lord’ or ‘Your Lordships’. Instead, they can be addressed as ‘Sir’.  The registry has also been directed to show the direction as part of the Cause List.

The Bar Association of India has of course taken a step against this Lord syndrome. It has been dealt with through an amendment to Bar Council of India Rules, framed under the Advocates Act,1961, in Part –VI, Chapter-IIIA:

 “Chapter-IIIA3 : To address the Court

Consistent with the obligation of the Bar to show a respectful attitude towards the Court and bearing in mind the dignity of Judicial Office, the form of address to be adopted whether in the Supreme Court, High Courts or Subordinate Courts should be as follows:

“Your Honour” or “Hon’ble Court” in Supreme Court & High Courts and in the Subordinate Courts and Tribunals it is open to the Lawyers to address the Court as “Sir” or the equivalent word in respective regional languages.

Explanation: As the words “My Lord” and “Your Lordship” are relics of Colonial past, it is proposed to incorporate the above rule showing respectful attitude to the Court”.

 Like many amendments, this one too remains a non-starter.  It is said good habits should start at home, but BCI is an exception to this general rule.  As long as the office bearers of the Council continue to address judges as ‘My Lord’, how on earth is an ordinary Lawyer  expected to follow the Rule?

It is worth pondering what if a writ is filed for implementing this among lawyers, the Court would always direct to enforce the Rule if it is otherwise intra vires. I don’t see any argument contra, making the amendment ultra vires.

P V Dinesh is an Advocate practising in the Supreme Court of India.

Auction Purchasers be on the alert –

LL : A  Nizam : 27 July 2013

Lawmaker is unmindful of the injustice imprint in Article 134 of the Limitation Act R/W Section 47 CPC

Whether an auction purchaser who purchased the property in execution of a decree of a civil court could file a separate suit for delivery of vacant possession of immovable property or whether his remedy is limited to an application under O.21, R.95, Civil Procedure code is an important issue where unfortunately one could find conflicting views among different benches of the Hon’ble Supreme Court of India.

Section 47 of the Civil Procedure code provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by separate suit. By virtue of explanations to S.47 as it stands now, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed so also all questions relating to delivery of possession of such property to such purchaser or his representative shall be deemed to be a question relating to the execution, discharge or satisfaction of the decree within the meaning of S.47.

The object of S.47 is to preclude the unnecessary expense and delay that fresh trials entail. Obviously Section 47 would bar a suit when the same relief could be obtained by an application therein. 

Prior to the insertion of explanations to S.47 a stranger auction purchaser was not considered as a party to the suit, therefore S. 47 was not applicable to him and separate suit for possession was not barred. But there were conflicting views as to whether a decree holder who purchased the property in auction, with the permission of the court under O.21 R. 72 would retain his character of a party to the suit until the delivery of possession to him of the property.  In Ganapathy v. Krishnamachariar, 45 Ind App 54: (AIR 1917 PC 121) the Judicial Committee of the Privy Council putting a liberal construction on S.47 answered the question in the affirmative and held that S.47 would apply to a decree holder auction purchaser.  

In Harnandrai Badridas v Debidutt Bhagwathi Prasad (1973 KHC 593 : 1973 (2) SCC 467 : AIR 1973 SC 2423) a 3 judges bench of the Honourable Supreme Court comprising  A. N. Grover; K. K. Mathew; A. K. Mukherjea, JJ considered the question whether, a decree holder auction purchaser can move the executing court for delivery of vacant possession of an immovable property or whether he has to file separate suit to get that possession and held as follows.

“It is important to remember that after the decision of the Privy Council in Ganapathy’s case, (45 Ind App 54 : (AIR 1917 PC 121) there has been an amendment of S.47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree holder or not, is unquestionably a party to the suit for the purpose of S.47. Having regard to this, all questions arising between the auction purchaser and the judgment debtor must in our view be determined by the executing Court and not by a separate suit.”

In K.R Lekshminarayana Rao v New Premier Chemical Industries (2005(9) SCC 354) a division bench of the Hon’ble Supreme Court comprising  S.B Sinha; S.H Kapadia,jj, following ‘Harnandrai’, held that a proceeding under O.21, R.95, Civil P.C. for delivery of possession is a proceeding “relating to execution of the decree” and steps for obtaining delivery of property in occupancy of the judgment debtor is required to be taken by the auction purchaser in terms of O.21 R.95 CPC and, thus, a separate suit to enforce such a right would be not maintainable. But another division bench comprising M. M. Punchhi; Sujata V. Manohar, JJ. in Pattam Khader Khan v. Pattam Sardar Khan and Another (1996 (5) SCC 48)without referring to ‘Harnandrai’, or the provision in Section 47 CPC, opined that the period of one-year limitation, now prescribed under Art.134 of the Limitation Act, 1973, in substitution of a three-year period prescribed under Art.180 of the Indian Limitation Act of 1908, is reflective of the legislative policy of finalising proceedings in execution as quickly as possible by providing a quick forum to the auction purchaser to ask delivery of possession of the property purchased within that period from the date of the sale becoming absolute, rather than from the date of issuance of the sale certificate. On his failure to avail of such quick remedy the law relegates him to the remedy of a suit for possession in a regular way.” This view was again quoted with approval in Balakrishnan v Malaiyandi Konar 2006(3) SCC 49: AIR 2006 SC 1458:2006(1)KLT926. Arijit Pasayat; R. V. Raveendran, JJ. ( Supreme Court )

It is a well settled proposition of law that, If any smaller bench unfortunately overlooks or omits to refer to an earlier binding precedent of a larger bench such later decision has no binding effect and must be reckoned as rendered per incuriam. Therefore law laid down by the Hon’ble Supreme court in ‘Harnandrai’, will prevail over the contrary view in ‘Pattam Khader Khan’.

However, the above amendments adding explanations to Section 47 CPC and the Law enunciated by the Hon’ble Supreme Court in ‘Harnandrai’ pose more questions than answers. In law relating to Adverse Possession, Section 27 of Limitation Act provides that at the determination of the period limited to any person for instituting a suit for possession of any property his right to such property extinguishes and therefore the trespasser will acquire title to the property. But here in the case of auction purchaser in execution, even after the expiration of the period of limitation prescribed under Article 134 for filing application for delivery of possession, the title to the property which passed on to him on the confirmation of the sale remains with him and will not revert back to the judgment debtor but the auction purchaser will be precluded from obtaining possession of the property by the operation of limitation. There is a similar situation in the case of the doctrine of part performance enshrined in Section 53A of the Transfer Of Property Act, where the transferor on whom the title to the property technically remains, would be debarred from enforcing any right in respect of the property of which the transferee had taken possession of in part performance of the contract for transfer. But there is a conscious and valid/just reason behind the provision in Section 53A i.e. to compel the transferor to honour the contract and to protect the interest of transferee who has performed his part of the contract or is willing to perform his part of the contract. But it is doubtful whether the legislature was conscious of the meager 1 year period of limitation in Article 134 of the Limitation Act and the consequence of precluding the Auction Purchaser from the remedy of a regular suit while amending Section 47 CPC by incorporating explanations bringing in the auction purchaser as a ‘party to the suit’ for the purpose of the Section. Apparently there is no reason for wholly precluding the auction purchaser owner from enforcing his right of ownership on the basis of inaction for a meager period of 1 year as prescribed in Article 134 and the law as it stands appears to be extremely harsh on the auction purchaser and disproportionate to the lapse/inaction. This perhaps had prompted Honorable Justice M. M. Punchhi; to opine as quoted above in ‘Pattam Khader Khan’.

The reason for delay in filing petition for delivery may be myriad and in many cases justifiable also.  But as the provision in Section 5 of limitation Act 1963 is not applicable to any application under Order 21 the delay cannot be condoned under any circumstances. So in fact Section 47 CPC  R/W Article 134 of the Limitation Act as interpreted in ‘Harnandrai’ will work out grave injustice and deprive the auction purchaser of his proprietary right.

It would be appropriate to note that even when Section 47 CPC was amended to bring in within its ambit an auction purchaser, Section 15(4) Limitation Act 1963 which reads as follows “In computing the period of limitation for a suit for possession by a purchaser in a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded” was not touched. So also Clause (c) of Article 65 of the limitation Act 1963 which speaks of a suit by auction purchaser for possession remained as such in the statute book.  In Ganpath Singh(dead) by L.Rs v Kailash Shankar and another 1987(3) SCC 146: AIR 1987 SC 1443. A bench comprising E.S Venkataramiah and M.M Dutt,jj of the Hon’ble Supreme Court observed that “It may be that before the amendment of S.47 of the Code, an auction purchaser could file a suit for recovery of possession of the property within 12 years from the date of sale, but in view of the amendment of S.47 of the Code such a suit cannot be filed. But that is no ground for holding that Art.136. Limitation Act, would apply to an application for delivery of possession. Under the old Limitation Act of 1908, an application for delivery of possession could be made within three years from the date on which sale became absolute as prescribed by Art.180 of that Act, but under Art.134, Limitation Act, 1963 such an application can be made within one year from the date on which sale became absolute. Thus the period of limitation for delivery of possession of property purchased at the court sale has been reduced to a considerable extent, but that also cannot be taken into consideration for the purpose of interpretation of the provisions of the Limitation Act. It is for the Legislature to prescribe the period and the Court is only to see whether any particular application has been filed within that period.” In the light of the above view of the Hon’ble Supreme Court based on the amendment to Section 47 CPC, it appears that Section 15(4) and clause (c) of Article 65 of the Limitation Act 1963 have become redundant.

It is worth noting that these are times when the ambit of Human Right Jurisprudence is widening and Right of property is not considered as confined to be a statutory right but is also read into the realm of Human Rights and the courts and jurists around the world are approaching/viewing statutes of limitation overriding property rights with disdain.  The Supreme Court of India starting from P. T. Munichikkanna Reddy and Others v. Revamma and Others 2007 KHC 3543 : JT 2007 (6) SC 86 : 2007 (6) SCC 59 : AIR 2007 SC 1753 : 2007 (3) CHN 116 (SC) 07 (6) Mah LJ 336 : 20*S. B. Sinha; Markandey Katju, JJ. and later on in Hemaji Wagaji Jat v. Bhikhabhai Khengarbhai Harijan 2008 (4) KLT 357 : AIR 2009 SC 103 : 2008 (12) SCALE 697 : 2009 (16) SCC 517*Dalveer Bhandari; H. S. Bedi, JJ. and in State of Haryana v. Mukesh Kumar and Others*Dalveer Bhandari; Deepak Verma, JJ.  2011 KHC 4876 : 2011 (4) KHC SN 7 : 2011 (11) SCALE 266 : 2011 (4) KLT SN 70 : 2011 (10) SCC 404 : AIR 2012 SC 559, has strongly deprecated the law of adverse possession and has recommended the government to abolish or make necessary changes in the law of adverse possession. In ‘Mukesh Kumar’ the Honourable Supreme Court of India citing English Authorities/cases reiterated that the law which provides to oust an owner on the basis of inaction of 12 years is “illogical and disproportionate”. The effect of such law would “seem draconian to the owner” and “a windfall for the squatter” and there is an urgent need of fresh look regarding the law on adverse possession.”

If that be so, the injustice looms larger in the case of precluding the auction purchaser from enforcing his proprietary rights at the expiry of a paltry one year period in Article 134. It is unlikely that the matter would come before a larger bench of the Hon’ble Supreme Court and the injustice would be undone by overruling the view in ‘Harnandrai’ as the court cannot legislate under the guise of interpretation. Hence it is for the legislature to take steps to undo the injustice worked out by the law as it stands now.  It appears that the legislature is oblivious of the injustice imprint in Article 134 of the Limitation Act R/W Section 47 CPC. Hence there is an urgent need to bring the injustice writ large on Article 134 of the Limitation Act R/W Section 47 CPC, to the notice of the people who are instrumental in the process of law making in this country, to persuade them to take steps to give back to the auction purchaser his right to sue for possession based on paramount title, by necessary amendment in the Civil Procedure Code, in the interest of justice. This Article is a humble effort in that direction. 

Nizam A started his career as an Advocate. He has worked as Manger (Legal) with Union Bank of India and Bank of India. He later joined the Kerala Judicial Service and served as Munsiff Magistrate for a year and a half before resigning from the post recently. Nizam has keen interest in Civil Law.

‘Justice Speaking’ - Justice K Chandru,

 by Durga M Sengupta 27 July 2013

Live Law spoke to Justice K Chandru, retired Judge of the Madras High Court. Justice Chandru was first appointed as an Additional Judge of the Madras High Court on 31st July, 2006 and later a Permanent Judge on 9th November, 2009. He retired recently on 8th March 8, 2013. During his tenure at the Madras High Court, Justice Chandru disposed nearly 96,000 cases and was popular as a “People’s Judge”. In this interesting conversation with Live Law Justice Chandru speaks about his post retirement plans, judicial accountability, on working with Justice Markandey Katju and many other interesting things.

Live Law: It is said that you did not wish to be a part of the Supreme Court or tribunals. Why?

Justice Chandru: I didn’t go to the Supreme Court post retirement because my practice is here and I won’t be able to do many things if I want to be there. I had decided long back that I must do things for the public and so I stayed on. The other thing is that I’ll have to start from scratch as a lawyer in the Supreme Court and that is promising only to those who want to make money. I am not interested in making money.

As for tribunals, there are exclusive tribunals for retired judges. But these tribunals are subordinate to the High Court. As a matter of principle, I believe that no tribunal should be accepted. So, I decided not to take up a demotive status.

Live Law: What are your post retirement plans? Do you intend to write any books?

Justice Chandru: I sit in this office that I have rented out for myself and do some consultancy for lawyers who want help. Other than that, I write in newspapers and magazines. One of my retirement plans was to take part in public debates. I write articles on a variety of cases including a series of peculiar cases that come to court. I also write for women’s fortnightly magazines. I deliver lectures in colleges like IIT Madras regarding law and social issues. That’s how I keep myself occupied.

Live Law: Looking at some of your breakthrough judgments like the one that permits female priests to preach in a man’s world and allowing women surrogate maternity leave, would you call yourself a feminist?

Justice Chandru: There are a wide variety of cases I’ve worked on, including women’s issues. For instance, I wrote about this Anganwadi spinster who once lost her job because a child developmental officer had some grouse against her. She was declared schizophrenic and I decided to look into the matter. I called her to my chamber and said “Your case is a win-win situation. Whether or not you are schizophrenic, you will win this case. They can’t keep you away from work.” Under the Disability Act, even mental disabilities are counted. So, even a mentally disabled person cannot be sacked. For the first time in India, the mental handicap issue was looked at, even though she turned out to be normal.

Yes, you can call me a feminist, I suppose. I’m proud to say that this High Court has given me the space to help women’s issues.

Live Law: You have been called a “People’s Judge” and with good reason. Do you think there is a need to increase legal awareness among the people?

Justice Chandru: Awareness cannot come overnight. NGOs and women’s organizations must work for it. After 1975 when World Women’s Day was celebrated for the first time, a host of women’s issues were recognised. Legal aid service societies also create awareness but it also must come from the roots. I write my articles in Tamil so that more people read and there is a wider audience. I chose a women’s magazine to write in so that it reaches more women. The only problem is that there aren’t many formally educated women.

Live Law: Is judicial reform the way to go?

Justice Chandru: Judicial reforms only reinforce the written constitution. Kesavnanda Bharati case, for instance, played an important role in prohibiting the Executive from intervening with the Judiciary. However, the Emergency soon followed. So you can understand.

Live Law: How was your experience of working with prominent figures like Justice Markandey Katju and Justice A K Ganguly?

Justice Chandru: Justice Katju for some reason didn’t like me and opposed my elevation. He is heading an institute as a judge and he should not make such controversial statements so often. It is easy to make such statements. I think if he were to resign and do all such canvassing, then it’s fine. Media likes him because he has something to say every day.

As for Justice Ganguly, he is a noble judge. I delivered a number of judgments, first with Justice A P Shah then with Ganguly.

Live Law: What are your views on judicial accountability? Is the corruption of judiciary a myth?

Justice Chandru: I believe that no institution should be beyond screening for corruption. Judiciary, like any other pillar of democracy, is accountable. Corruption is a major issue that should not only be defined as a cash order. Judicial corruption is much more than that.

There’s “Uncle practice” and “Laal jhanda” practice. Uncle practice is “I help your son, you help my son” because legally you cannot help your son. Laal Jhanda is when you give a red card in a football field, you engage the son and your work gets done. If you ask me if the judiciary is corrupt, I will say yes. Yes, because the judiciary reflects the society. It also reflects all the ills of the society.

Live Law:  How different is the video piracy situation post the Ashok Kumar orders. Is this the way to go?

Justice Chandru: I merely gave an injection to the video piracy case. See, the service provider makes “Ashok Kumar” a party. According to my intervention in the case, only the particular URL that contains the video is blocked from viewing. But the problem is larger and will have to be dealt with by the Supreme Court. Even now you go to any Middle East country and you will get new releases in cassette forms.

Live Law: The media has been buzzing about your quiet retirement. Do you think judges ought to submit their assets? Should it be mandatory?

Justice Chandru: Government servants must submit their assets, but a judge is a public servant and not a government servant according to many. Additionally, according to the 1971 Corruption Act if you have a disproportionate asset (like if someone earns 5 lakhs and owns 10 lakhs) you must explain your source or it will be declared as ill-gotten wealth by the court. So ideally, judges should recognise that and submit their assets before leaving.

Live Law: What do you think is the solution of the pending backlog of cases in Indian Courts? Is fast-track always feasible?

Justice Chandru: The existing back-log will take 330 years to be resolved. It’s impossible to achieve. The main requirement is a capable judge. A novice will take much longer than someone who is experienced in the field. First solution is to change the appointment system so that more capable people are appointed. Second, judges must evolve their collective strategy to resolve matters. Third, increase the number of judges and give them holidays on rotation so that if I want leave in the month of February I should cover for someone else in June. But the problem is that no one is interested in changing the system.

Then there are the lawyers. There is a serious monopoly of work there. Around 20% of the lawyers control 80% of the work. Also, lawyers are usually interested in fresh cases than old cases leaving the back-logs unattended. And then there is the tendency to strike in Tamil Nadu.

Live Law: Speaking of strikes, from a being fiery politically active youth to someone who believes in work ethics and not hartals, what changed?

Justice Chandru: See the organised staff now has started protesting for everything. The court needs to be open on all days, weekdays or weekends. So I realised it is not a lawyers’ issue, rather it is a social problem at this stage. Within the monopoly of lawyers, there is an obvious unrest because a lawyer who does not have work will naturally show frustration through such demonstrations. The Bar Council wants to maintain status quo and hide their inefficiency, but strikes don’t help their real issues.

Live Law: Our courts still suffer from a colonial hangover. According to a report, you didn’t approve of the common court term “My Lord”. Are we slow?

Justice Chandru: The Bar Council has framed rules about how to address judges in courts, but that has not been put in place. The problem is, even now you are allowed to call a judge My Lord, and maybe if you don’t the result may be different for you. This has gone up to ridiculous levels of servility where a junior judge would call a senior judge My Lord. I have objected to this but then the general explanation is that judges like it.

Live Law: A message for the people from the people’s judge?

Justice Chandru: We cannot ignore the judiciary in a civilized world. Therefore, for the interest of all, the judiciary will have to be strengthened. Judiciary is not beyond accountability and there must be people to shape the institution. The constitutional philosophy must be engrained in every judge.

Justice Altamas Kabir seeks apology from Justice Sathasviam, if remarks in JP Associates case are true

  IBN Live :27 July 2013

Former Chief Justice of India, Justice Altamas Kabir spoke to Karan Thapar in Devil’s Advocate on CNN-IBN. Live Law brings to you the full text of the interview along with the video.

Karan Thapar: First, we shall be speaking of the issues connected to your Chief Justice tenure, before we come to wider issues connected with the judiciary. It has been alleged that the recent ‘NEET judgment’ was leaked through private medical colleges two weeks officially before you delivered it. Is that true?

Justice Altamas Kabir: I wouldn’t know because I don’t know that it was leaked. I have no knowledge whatsoever.

Karan Thapar: I’ll tell you why people ask this question; because the leading Supreme Court Advocate Gopal Sankaranarayan, on his blog, before the judgment was officially delivered, actually predicted that it would be in favor of private medical colleges, he predicted the basis and grounds for that inclusion, and he also predicted that justice Dave would dissent and people say, if he’s got so much correct before the judgment is delivered, surely it proves that the judgment was leaked.

Justice Altamas Kabir: Right, let me put this in another way. Who gains by this leak; number one. Number two is, how did he know that Justice Dave was going to dissent. If it had to be, say suppose it was leaked from my Chamber, from my Chamber here in the Court, or in the residence where the judgment was prepared, supposed it happened here. How would anybody know that Justice Dave is going to dissent? So its, my view is simply its some kind of speculation.

Karan Thapar: So, infact what you’re saying is that there is no question of a leak but just some sort of a co-incidence that Gopal Sankaranarayan predicted so accurately what the outcome would be?

Justice Altamas Kabir: Not very accurately. What he did predict, to some extent it was true, was that it would be above a hundred and ninety pages.

Karan Thapar: He predicted that you would be found in favor of private medical colleges, he predicted that you would conclude that the Medical Council of India would have no jurisdiction, he predicted that Justice Dave would dissent, all three of them are correct.

Justice Altamas Kabir: Err, yes they are. But at the same time I would repeat, that Justice Dave was going to dissent was something that was not known to us.

Karan Thapar: That maybe the co-incidence?

Justice Altamas Kabir: Either it’s a co-incidence or a leak, but it is not from here.

Karan Thapar: You are absolutely confident that there was no leak, either from your Chamber, or at your home, or from the Supreme Court?

Justice Altamas Kabir: Absolutely.

Karan Thapar: Now a set of issues connected with the NEET judgment, was that in his dissent, your colleague Justice Dave said, that he had to be quick and therefore short, because of paucity of time, and he also said there was no prior discussion with you and perhaps he did not have proper time for reflection and that worries people when a Judge doesn’t have adequate time.

Justice Altamas Kabir: Well, if I remember correctly, the copy of the judgment- the draft was made over to Justice Dave for atleast about ten days or one week. Atleast one week before the judgment was delivered.

Karan Thapar: In your words, Justice Dave had adequate time, and to complain of paucity of time, is wrong.

Justice Altamas Kabir: Absolutely. Apart from that, what was the main issue involved? The main issue involved in this case was not whether it benefitted students, benefitted people; it was not that at all. It was a legal question. The legal question was simply this, does the Medical Council of India have the right or the jurisdiction, or the authority under the law, to impose a single window exam.

Karan Thapar: Quite right. So what you’re saying is, I’m repeating it again because it is so important to be categorically correct. You’re saying that when Justice Dave in his judgment, he says that he has to be quick and therefore also short, and talks about paucity of time, that paucity of time is untrue, he had a clear ten days.

Justice Altamas Kabir: See, he had sufficient time if we put it this way, to look into the judgment, and the very first opening lines as you would find in the judgment like this, it set out what were the actual issues involved. Just one more thing, those were the issues which he did not address. He went by a personal emotional feeling, if I can understand from his judgment. What he has said is, he believed that a single window examination would be beneficial for the people, but that is not the law.

Karan Thapar: You’re saying that he went by an emotional response rather than the legal point of the issue.

Justice Altamas Kabir: Correct.

Karan Thapar: Let’s leave that aside. A second matter that arises from your tenure as Chief Justice is the criticism that you often, wrongly and improperly, took in hands matters that were actually the concerns of other existing Benches’ of the Supreme Court and your critics say that you did this with some connection with the ‘Guthka Case’, the ‘Sahara-SEBI Case’, the ‘Jayprakash Associates Case’, the ‘Sunil Mittal 2G Case’. How do you respond to that criticism?

Justice Altamas Kabir: I’ll take one at a time. Let us take the Jayprakash Case. Right. This was a case from Himachal Pradesh, where the High Court had directed that a certain amount of money, some hundred crores or so, were to be deposited as a fine on the basis of pollution laws. Right.

Karan Thapar: The former Supreme Court bench had refused, you accepted and agreed and your critics say that you were improper and wrong to step in.

Justice Altamas Kabir: Now, let me just explain that again. When the matter was first taken up by the other Bench, notice was issued, there was no interim order, nothing at all was mentioned. The matter came up before that bench a number of times. Finally an application was filed by writ petitioners for an interim order, and that application was again deferred, deferred, deferred, till finally it was directed by that Bench, that the interim order matter would come up along with the main matter. It did come up and I do remember that the Bench had said no, that we are not passing the interim order. Now, then the matter was before His Lordship, that Bench. The difficulty arose when His Lordship was taking a separate Bench altogether for hearing a final…… its like this, that bench, headed by Justice Patnaik, His Lordship was taking a separate Bench hearing only final matters. At that time when this matter was mentioned before His Lordship, His Lordship said, ‘I cannot hear the matter now, because the matter is before the…’

Karan Thapar: Can I say something?

Justice Altamas Kabir: Yes.

Karan Thapar: And I’m clarifying this for the audience that His Lordship, Justice Patnaik, was prevaricating from one point to another, or delaying, or dragging, and you therefore stepped in…

Justice Altamas Kabir: No, he was not prevaricating but the matter issue was before His Lordship till he took up this Bench and at that bench when it was mentioned, His Lordship said since I’m not in a position to take up the matter now, please mention before the Chief Justice.

Karan Thapar: In other words, you took it up at the specific suggestion or request of Justice Patnaik.

Justice Altamas Kabir: They mentioned the matter before me.

Karan Thapar: Making up to a very important point that upto now people have ignored, but the reason why I want to pursue this is because on Wednesday, a Bench headed by your Successor Chief Justice P Sathashivam, actually sharply criticized the order that you passed. I want to quote what that bench said; they said “We do not approve the manner in which the interim orders came to be passed; we do not sit on appeals over orders passed by a Court” and that “the orders should not have been passed”. Surely, that is indictment of what you as the Chief Justice of India, just a few days earlier did!

Justice Altamas Kabir: I agree with you that it is an indictment but it is not a correct indictment. Whatever he has said, is unfortunately incorrect in the sense, I’m making this point once again, that this matter was mentioned before me because there was no interim order, at the same time there was a direction for them to pay the amount of hundred crores, fine. What I did was, I did not pass an interim order or any other orders upto a certain stage.

Karan Thapar: If you agree that it is an indictment and you add that it was an incorrect indictment, do you feel embarrassed or do you feel annoyed?

Justice Altamas Kabir: I feel both. And I’m going to take some kind of action if this quote turns out to be true, if it was said in the open Court.

Karan Thapar: It was on the Front Page of Thursday’s Times of India, it was not denied by the Chief Justice of India and his fellow Judges on the Bench I presume, they stand by it. What action do you propose to lay?

Justice Altamas Kabir: I’ll tell you one thing. I had spoken to the Chief Justice, Justice Sathashivam, as soon as I’d seen the news out in the morning.

Karan Thapar: What did he say?

Justice Altamas Kabir: His Lordship said I’ve never said this.

Karan Thapar: Why did he deny it?

Justice Altamas Kabir: Then I spoke to Justice Gogoi, he was a partner in the Bench. I asked him, “Did you all say this?” He said, “Certainly not! We never said this at all”. Now, I’m going to take some positive steps in the sense, that I have requested these judges to give it to me in writing and then I shall, if necessary, take it to the Times of India.

Karan Thapar: So, the point that you’re making to me is, and I’m underlining it, you feel both embarrassed and annoyed.

Justice Altamas Kabir: That’s right, I am.

Karan Thapar: Do you believe that if these comments turn out to be correct and have been made by one of the Judges, you owe an apology?

Justice Altamas Kabir: Absolutely. Certainly.

Karan Thapar: You have no doubt about it?

Justice Altamas Kabir: No doubt about it.

Karan Thapar: If Justice Sathashivam has said what I actually quoted, you are owed an apology.

Justice Altamas Kabir: That’s right.

Karan Thapar: Let’s come to the third issue that arises from your tenure as the Chief Justice. Prashant Bhusan, a very senior Supreme Court Advocate, has questioned the way you, within three to four days of announcement of your successor, appointed a Constitutional Bench to go into a matter connected with him and he says that this is perhaps a conflict of interest because it concerns a certain range of doctors, some of whom are your personal physicians and are treating you and this not a matter that you should have gotten into at all.

Justice Altamas Kabir: I don’t think so, I think he’s got it all mixed up, like he normally does. Anyway, Prashant Bhusan, as you know very well, he has…the media has made him what he is today, I don’t know if you have seen him appearing in any other matter except for matters relating to Public Relations.

Karan Thapar: Okay against this criticism that he has made against and he had made it publicly, he has gone into the wrong end of the stick.

Justice Altamas Kabir: That’s right.

Karan Thapar: Does he owe you an apology for having gone public with this criticism?

Justice Altamas Kabir: Of course. All of this are nothing but cannons. I don’t know why but there seems to be a kind of a, just before I retired, since a week before then, certain newspaper items began to come up.

Karan Thapar: I have to ask you precisely, that why is it that just before you retired, and shortly after you retired, stories or allegations, criticisms based around facts or mis-reports emerging in the newspapers? Why are you suddenly being targeted?

Justice Altamas Kabir: That is precisely what I’m trying to understand. In fact in my press release, which I wrote after these things came out, I wanted to keep quiet, I said why go into all these controversy. But when that Frontline news appeared in the Indian Express, and then the…

Karan Thapar: Can I interrupt; for the sake of the audience I would clarify that the frontline news in the Indian Express was a report from the letter written by the Gujarat High Court Chief Justice, alleging that bias has let you to not elevating him to the Supreme Court which he should have been elevated but you were aggrieved because he never put away with the accusations against your sister as Judge in the Calcutta High Court. Why all of this is suddenly emerging now?

Justice Altamas Kabir: I don’t know, maybe because no longer I have the control over the Bench. I have retired.

Karan Thapar: Are you being targeted, are you being picked upon?

Justice Altamas Kabir: I would certainly say so from a certain section. Definitely. But I think we should get a response from the members of the Bar in general.

Karan Thapar: Many of these stories are emanating from fellow judges, I’m summarizing and guessing but its folded accurate guess, does it worry you that people who were your colleagues until last week are now leaking stories about you, true or false?

Justice Altamas Kabir: I wouldn’t comment on that. If there is, then I’m sorry to hear such a thing could have happened, but I would have never expected any of my colleagues to do this.

Karan Thapar: Before I change the subject, two quick questions. Do you have enemies that you have accidently, or inadvertently or deliberately created?

Justice Altamas Kabir: Yes, yes, Prashant Bhusan is one of them I guess, because I’ll tell you why. Personally I believe that the High Court’s powers in writ jurisdictions should not be forgotten. The High Court should not be degraded of its powers that comes directly under Article 32 of the Constitution….

Karan Thapar: I understand, so you’re saying that Prashant Bhusan is one enemy; do you have any enmity or bad blood to put it sophisticatedly with your successor Justice Sathashivam?

Justice Altamas Kabir: Not at all. There is no reason why it should be. Not at all.

Karan Thapar: No reason that you can think of. Do you think that is not even possible?

Justice Altamas Kabir: No, I don’t even think that is right to be commented on, no, I don’t think so.

Karan Thapar: Discretion is a better part of the valor in your answer, I note.

Justice Altamas Kabir: Well, take it for whatever it is. There’s one more person who could be a part of this, and that is one section of the press. And this is not exactly a surmise but the way in which things have been reported recently, seems to suggest that.

Karan Thapar: Are you suggesting that The Times of India, which has many critical stories about you, is targeting you?

Justice Altamas Kabir: It looks like it. And I don’t know for what reason.

Karan Thapar: The Indian Express possibly as well?

Justice Altamas Kabir: Indian Express they brought out that letter which has been written by the Gujarat Chief Justice, now, there I had explained in my press release that they possibly do not know how the collegiums functions.

Karan Thapar: In other words, the Indian Express story about you can be put down to ignorance; but the Times of India story, is motivated.

Justice Altamas Kabir: Is motivated.

Karan Thapar: Some of the journalists, and I’m going to name them, Dhananjay Mahapatra has been highly regarded as a legal correspondent. Does he have an access to files?

Justice Altamas Kabir: I wish I knew, because when I was office, atleast two months before I retired from office, he was writing all sorts of, whatever was good. He was publishing well. But at the same time, he did want an interview with me. And I said no.

Karan Thapar: And you’re suggesting by that answer, with that sudden change in tone, which went from complimentary to critical, because you refused him an interview.

Justice Altamas Kabir: That could be one of the reasons. I cannot fathom anything else.

Karan Thapar: Okay, let’s get out of this. Leave now, this whole business of allegations, stories, innuendo about you, or the fact that you’re being targeted and picked upon, either by the fellow judges or the press, let us now come to the central issue of concern to the Indian people.

Justice Altamas Kabir: But I would still like to say something about the process how the collegiums work.

Karan Thapar: I will come back to that. The first issue I would come to before I come to the issue how the collegiums works, it concerns the corruption in the judiciary. The former Chief Justice, Justice Jagdish Sharan Verma said before he died that he could not say there were no corrupt judges in the Supreme Court; Former Law Minister Shanti Bhusan swore an affidavit that eight of the fifteen Chief Justices were corrupt; Mamata Banerjee, Chief Minister of West Bengal said that money is paid to buy judgments. Do we have a serious problem of corruption in the judiciary?

Justice Altamas Kabir: At the Supreme Court level, I don’t think so.

Karan Thapar: When you say ‘I don’t think so’ that does not sound very confident.

Justice Altamas Kabir: Err, well, I particularly cannot know whether somebody is doing something or not. It is not possible to tell if somebody does something underhand.

Karan Thapar: I will tell you, the Supreme Court itself creates a doubt in the mind. The Campaign for judicial accountability has raised serious questions as regards the property of Chief Justice Agarwal; the income tax department is now investigating into the alleged disproportionate assets of former CJ Balakrishnan, both were Chief Justices just a couple of years ago. You know that the former Chief Justice, Justice Dinakaran of the Karnataka High Court could not be elevated because of question marks regarding his financial dealings. Justice Sen of the Calcutta High Court almost got impeached except he saved himself by resigning; Justice Yadav of the Punjab and Haryana High Court is actually facing a Court proceeding. People turn around and say when such eminent Justices, and I have named five atleast, face serious question marks, is there corruption at the highest level?

Justice Altamas Kabir: Alright. Take Justice Balakrishnan. Many allegations have been made against him, but nothing has been proved. He is still the Chairman of the National Human Rights Commission.

Karan Thapar: I should add there, that former CJ Verma in an interview to the SEBI program said that:

1. He should have resigned when the allegation first appeared when he was the Chief Justice of India, and,
2. He should definitely step down as the heads of the National Human Rights Commission, and if he doesn’t, the Government should sack him and that was said by one of his most illustrious speeches.

Justice Altamas Kabir: True. But then there are a lot of things to be said about my said illustrious predecessor; I wouldn’t like to go into, but…

Karan Thapar: What are the things that you are suggesting? Are you suggesting that Justice Verma’s record is entirely just and clean?

Justice Altamas Kabir: What I would suggest is simply this. That maybe it is better when you’re in office, to say things, than when you demit office, you start opening your mouth.

Karan Thapar: Are you accusing him of opportunism?

Justice Altamas Kabir: I wouldn’t say opportunism, because he wouldn’t get out of this, but certainly this sort of criticism after when a person demits office, doesn’t behold. A person of that stature.

Karan Thapar: Let us come back to the key issue of corruption in the judiciary; you by your answers suggest that you are minimizing it, are you doing that, because as a judge it would be awkward for you to let down this side in public or you genuinely believe that what the concerned media, the public say and that the corruption is exaggerated?

Justice Altamas Kabir: I believe that it is exaggerated. Because, can you name me, except for these five Judges mentioned, you said of allegations against Justice Balakrishnan, against Justice Agarwal…

Karan Thapar: And the campaign against Judges Accountability has named other judges as well which is not coming to my mind right now, but it is there in the net courses, so there must be atleast fifteen more.

Justice Altamas Kabir: I don’t remember so many, this is an exaggeration. By and large I feel the judiciary is above fault.

Karan Thapar: We have very little time and in this little time I would like to raise a connected issues, which is the collegiums system of appointment of appointing judges. Once again, Former CJ Sharma, who’s 1993 judgment led to the setting up of the collegiums system went on record to this particular program, that India now needed the National Judicial Commission, that the collegiums system wasn’t functioning properly, that it wasn’t selecting the right people, and let me add, that position is endorsed by the former Chief Justice of the Delhi High Court, Justice Shah, it is endorsed by Seniors like Fali Nariman  and Soli Sorabjee as well as by the Supreme Court Bar Association. As the former Chief Justice of India, where do you stand on this issue?

Justice Altamas Kabir: Let us take Justice A.P.Shah first, our former CJ of the Delhi HC. Justice A.P.Shah is a person who has reason to be aggrieved. He was not brought to this Supreme Court. I don’t want to go into the details as to why he wasn’t bought, but there must be some very, very strong reasons.

Karan Thapar: You mean his opinion is motivated?

Justice Altamas Kabir: It’s motivated.

Karan Thapar: But what about Fali S. Nariman, what about Jagdish Sharma, the architect  of the collegiums system, now saying that it is not functioning and frame a National Judicial Commission instead?

Justice Altamas Kabir: One thing I will say is that I wish Justice Jagdish Sharma any of these things a little earlier.

Karan Thapar: He said on October last year on this very program.

Justice Altamas Kabir: Yes, why not earlier?

Karan Thapar: After it took time for him to realize.

Justice Altamas Kabir: So long? So long it took him to realize? When did he retire? It is not that.

Karan Thapar: Let me come to one point, the charge against the collegiums system is that it is neither transparent nor objective. You don’t have written laid down criteria for selecting the judges and as a result quite often the selection made by judges is subjective both in terms of those who elevate and as well as those who they refuse to nominate.

Justice Altamas Kabir: Have you had any chance of reading of what is known as the ‘Second Judge’s Case’? That is the case which was file by the Adv. on record association of the SC or the SP Gupta case? Over there it says that the, what was considered as appointments, what are the qualities of a judge. These have been very clearly defined in there.

Karan Thapar: But they are not laid down in writing, are they?

Justice Altamas Kabir: They are not laid down in writing, but…

Karan Thapar: But they are not the criteria’s that are made in writing, and as you read, it will be as follows, that quite often judges make assumptions that are subjective and that subjectivity often means that the wrong person often comes up.

Justice Altamas Kabir: Now in order to do that, what happened was, in the second judge’s case as it is called…

Karan Thapar: We are hopelessly out of time, sorry to interrupt, but is the point that you are making is that you believe that the collegiums system is working perfectly?

Justice Altamas Kabir: I would say it is. Under the circumstance, the best that you can have.

Karan Thapar: Do we need to switch to a National Judicial Commission to improve the selection process?

Justice Altamas Kabir: I don’t think so because the Government is the biggest litigator. It is the largest hand of litigation in the country.

Karan Thapar: But why do you think the NJC would be dominated by the Government? When there is the opposition on one side and we have the eminent jurists on the other side; would that be preferable?

Justice Altamas Kabir: but at the same time, no, because in that case, the independence of the judiciary, in my view, would be hit. And please, ask your readers or whoever is listening to go through the P. Reference of 1998, and also the other judgment.

Karan Thapar: We are way out of time and I would like to end by asking you one last question. Your positional repo as the most recently retired Chief Justice and it’s been just eight days that you have retired, that the collegiums system is working perfectly under the circumstances; we do not need a NJC?

Justice Altamas Kabir: One thing, I did not say perfectly, but that is the best that we can have, under the circumstance.

Karan Thapar: You don’t think that there is any angry set of protests by the Gujarat Chief Justice because he wasn’t elevated to the Supreme Court, which we mentioned earlier, or, the fact that in your own press release, repeatedly he was thwarted by the same collegiums when you wanted to elevate the Madhya Pradesh Chief Justice. That is the pro that it is not working?

Justice Altamas Kabir: No, no. the collegiums cannot be enforced by anybody. It is a collective decision.

Karan Thapar: So you stick by the collegiums?

Justice Altamas Kabir: It says in that judgment, that out of five, even two choose to defy, then they don’t refer the name.

Karan Thapar: So you’re speaking to stick to the collegiums?

Justice Altamas Kabir: For the time being, yes.

The interview is embedded below.