Exclusive: Former Kerala HC judge Kemal Pasha says only merit should matter in judicial appointments, deplores govt intervention

Justice Kemal B Pasha had ruffled several feathers with his bold and ruthless application of laws inside the courtroom and sharp and scathing comments on social issues outside the court while he served as a judge in the Kerala high court. After he retired on 24 May, he has started rattling the power centres by exposing the rot in the judicial system. He has set the ball rolling in the full court reference held on the eve of his retirement itself by raising pertinent questions about the appointment of judges, which has triggered a nationwide debate after four senior judges of the Supreme Court took their concerns to the public.

Kamal Pasha was provoked by the recent move to appoint kin of incumbent judges to the Kerala high court. In an exclusive interview to the Firstpost, he dwells on issues plaguing the judicial system. Edited excerpts:

 Exclusive: Former Kerala HC judge Kemal Pasha says only merit should matter in judicial appointments, deplores govt intervention

File image of retired Kerala High Court judge Kemal Pasha. Firstpost

Some of the issues you have raised after your retirement were also brought up before the public by four Supreme Court judges led by Justice J Chelameshwar. Do you think the controversy regarding the appointment of judges is a serious problem faced by the judiciary?

First of all, I do not approve the action of the four judges in taking the issue to the public. I strongly believe that sitting judges should not conduct press conference or give interviews to the media. I was concerned about the issues I have raised following my retirement even when I was holding the office, but I did not speak about them as I believed it was improper for a sitting judge to do so. Now that I have retired, I am free to speak what I consider right.

Do you agree with the issues raised by the senior Supreme Court judges?

In fact, I am not aware of it. They were aware of something and they talked something about it. Even though I heard it from the media I do not know anything about its merits. Therefore, I cannot speak anything about it.

They raised a pertinent question on the allocation of cases to the judges. They had alleged that senior judges were ignored while assigning cases. Do you find merit in their allegation?

I believe that the Chief Justice is always the master of the roster. He can decide. He can constitute the benches. But there should not be any untimely or mid-term shift in the benches. It should be based on the conventions if there are any. If these conventions are violated they will give room for public criticism. This should be avoided.

Was their such a violation in the decision of the Kerala Chief Justice in shifting you from hearing criminal matters after you ordered a CBI inquiry into the murder of Youth Congress leader Suhaib and registration of a criminal case against the head of a church in a land case?

It was untimely. It triggered a public outcry. I feel that should not have been done. It was not a matured decision. It is not illegal because the Chief Justice has the prerogative to decide the bench. But if his action violates conventions and if it is untimely people may think there is something fishy. In my case, the Chief Justice may not have been influenced by other considerations but it did not appear like that. That’s why there were strong reactions against the decision from the public.

The four Supreme Court judges had also expressed the same concern you have raised about the appointment of judges. Do you think the government is trying to induct judges loyal to them in the courts?

I do not know any such attempts. A judge should be a capable man. He should be knowledgeable. He should be upright. He should be honest and sincere and he should be bold. If such persons are appointed it's ok. If the government is given the authority they will try to implement their agenda. This should not happen.

The Supreme Court collegium recommendation to appoint Uttarakhand chief justice KM Joseph was returned by the government. Do you think it is due to political reasons?

I do not know anything about it. But I learnt that the government has assigned some other reasons. I do not know how far they are correct.

Then why do you think the collegium is delaying his re-recommendation to the government?
I do not know why they have not done it and what is the present stage. I have never tried to find out what is happening in the Supreme Court as I was not an aspirant for a position there. Joseph is a very good judge. Nobody can question his integrity. He should have been elevated to the apex court. He is eminently qualified to be elevated. I am also equally frustrated by the developments in the case.

The government returned the recommendation for Joseph's elevation to the Supreme Court citing his lower rank in seniority and the need for giving equal representation to all regions, SC/STs etc. Do you think judges should be appointed on the basis of these criteria?

Never. The only criteria for the appointment of judges should be their calibre. It should not be partitioned on the basis of region, caste, religion, and sub-caste.

If the government has denied elevation to Joseph on the ground that his home state of Kerala already has enough representation in the Supreme Court, it should explain why there are more judges in the apex court from Delhi. As regards to seniority, there are many instances when juniors were elevated. Therefore, there is no meaning in the government argument.

Do you see these as signs of politicisation of the judiciary?

There is such an allegation. Let us wait and see whether it is true or not. The government should not interfere in such matters. Who should be judges and who should not be judges is something to be decided by an independent authority and not by the government or any other interested persons. There should not be any role for the government in the appointment of judges.

There have been allegations that the BJP government is saffronising various institutions. Do you find any attempt by the BJP to capture the judiciary too?

There have been such allegations against all the governments. Take the issue of Justice Khanna. He was a great judge. He was overlooked in the appointment of CJI. This forced him to resign, and he resigned. The present government may be taking it as a precedent and trying to put their people in the courts. But this should not be the attitude. The government should not interfere in such matters.

Do you think the collegium is strong enough to resist political interference in the functioning of the judiciary?

The Collegium is the best system for appointing judges. It should be strong. If the government brings in a system and persons nominated by it are included in it, it will reflect in the selection of judges and may affect its independence. The system should have no relationship with the executive.

You said in your recent speech that judges in the Kerala High Court are being appointed on the basis of caste, religion, and sub-caste. Is it because of the influence of the government?

The state governments have no role in the appointment of judges in the high courts. They act only as a postman. The judges’ appointments in the high court are made by the collegium. I spoke about the appointment of judges in Kerala after seeing certain names recommended by the collegium in the media. Most judges, including me, have not seen many of them in the court. This is why I said that judges are not to be partitioned like family property.

We have been seeing governments in Kerala partitioning several posts like vice-chancellors in universities based on religion, caste and political criteria. Do you think it is right?
If it is done it is wrong. The government also have a responsibility to ensure justice in its actions. There is a common belief that there should be communal representation everywhere. Of course, it is well and good as far as other departments are concerned. But imparting justice cannot be done by anybody and everybody. Only persons with calibre can do it. Whether they belong to a particular caste or not should not be criteria to select such persons. Merit alone should be the consideration for the appointment of judges. Dispensing justice is a divine function. When persons who have to perform divine functions are to be selected, the appointing authorities should ensure that they have the capacity for it.

You spoke about post-retirement appointments of judges. Do you mean that the government is using this option to influence judges?

The faith of the people in the judiciary is paramount. If some aspersions are cast against that faith and if there is deterioration of that faith, the judiciary will fail. If I take up a job immediately after my retirement people may doubt my integrity. If persons have doubt about the integrity of the judges that will sound the death knell of the judiciary.

The chances for people to doubt the integrity of the judges are high in Kerala because the government is at one side in a majority of the cases dealt by the high court. That’s why I said there should be a cooling period of at least three years for judges to take up salaried jobs under the government. This was the idea given by justices SH Kapadia and TS Thakur. They were great judges.

Do you see a dilution of the authority of the judiciary in the recent times?

No. Not at all. So long as I was there, I feel that I had proper authority and I have used it while dealing with cases. That authority has not eroded.

This is your personal experience. Concerns are being expressed about its dilution from various quarters. The opposition had even moved an impeachment notice against the present CJI. Is this not an indication that everything is not well at least in the Supreme Court?
See, I should not speak anything about it. I must keep my decorum. Even though I am a retired judge now, I should not forget that I was a judge. It is not proper for me to comment on the conduct of another judge.

What are your concerns about the judiciary?
The issues I have raised in my speech about judges’ appointments is my biggest concern. Judges should be appointed only on the basis of merit. There should not be any other considerations. Apart from this, the escalating pendency of cases is also a matter of great concern. This is because of a dearth of judges. The government should appoint more judges to solve this problem. We also need more courts.

Updated Date: May 26, 2018 16:32:25 IST