Constitution bench to avoid conflict of views: CJI-designate

There will be at least one Constitution bench for "authoritative pronouncements" on issues like mercy pleas to avoid conflicting views by smaller benches, says Chief Justice of India designate Justice P Sathasivam.

The 64-year-old judge, who will take over as the 40th CJI in a fortnight's time, feels that a permanent Constitution bench consisting of five judges will solve thousands of cases stuck in litigation, even at the apex court, because of conflicting views from smaller benches.

The new CJI designate also has strong views on the legislative proposal for a bar on judges making casual observations against legislature and executive during hearings, the need for virtual reservation in higher judiciary in appointment of judges and dismisses the idea of setting up circuit benches of the apex court in other parts of the country.
He also wants judges to be cautious while making observations in the courts. It should be limited to eliciting information from parties.

"First, I am thinking of constituting one Constitution bench consisting of five judges for at least one month--which means the total working days the bench will hear matters.
"For cases regarding delay in disposal of mercy pleas, in order to avoid conflicting views by separate two or three judge benches, I am thinking of listing those cases before a Constitution bench of five judges for authoritative pronouncements," he told PTI in an interview.

Justice Sathasivam said this would obviate a situation of a two or three judge bench taking a different view.

"These types of cases I am going to identify. I am going to discuss these issues with my senior colleagues soon after I take over," Justice Sathasivam, who is scheduled to be sworn in on July 19, said.

Likewise, he said there are thousands of cases relating to entry tax pending all over India and imposition of such a tax on vehicles by each state makes it a difficult proposition.
"If a lorry goes from one state to another, every state imposes tax. How that man will survive?

"So, there are many such matters that are pending in the Supreme Court as well. If we bring those cases for argument and decision, that will solve many thousands of cases," he said.

However, the CJI-designate did not favour the setting up of circuit benches of the Supreme Court in other parts of the country saying that such a proposal was ruled out by the full court of the Supreme Court.

Further distance is not a factor now in view of technological developments, he added.
"For setting up regional benches, seven times the matter was discussed. From 1950 till this date, on seven occasions the matter was discussed in the full court of the Supreme Court and on two occasions at the annual Chief Justices' conference.

"These two forums are not favouring these regional benches. Nowadays, in view of the development of technology, like computers, laptops, e-filing, other online facilities, etc, distance is not a factor," he said.

Justice Sathasivam agreed with the view that inter-state disputes like water sharing and boundary problems are consuming several years of the court's time.

However, he cautioned that such issues "cannot be rushed through" as they are not individual cases and concerns the entire people of the states.

"But one information, we cannot rush through it. Like other matters, like Cauvery and Mullaperiyar, these cannot be winded up in one day. We cannot rush through them only for the purpose of rushing through.

"It is a very ticklish question. It cannot be rushed. It cannot be disposed of like ordinary civil or criminal matters. It may take some time and you are right, the Supreme Court has to give more attention to this, and I am going to," he said.

Replying to a question, Justice Sathasivam said the Supreme Court was devoting much time on high profile corporate matters at the cost of general litigants.

"It is true. Unfortunately it is true. To solve these commercial matters, corporate litigations, we have the Arbitration Act. The provision of arbitration is there to get rid of litigation from the courts. But after an arbitration award is passed by a former judge or an eminent person, the aggrieved party again goes to court. Goes to court 'throwing a stone in the Bay of Bengal'.

"Secondly, for corporate cases, they engage leading lawyers and senior counsels. Even now we are able to do more cases, but in view of the high stakes they take longer time. But not at the cost of other matters," he said.
Justice Sathasivam expressed his reservation over the provision of the proposed Judicial Accountability Bill which bars judges from making observations on constitutional authorities saying that it would come in the way of "fair justice".
However, he said that "no judge is entitled to make unnecessary comments". PTI HMP AAC SJK RKS VSC MNS 07071242

Justice Sathasivam said, "If you want fair justice, no one can control the proceedings of the court. Judges know their limitations. In order to understand the problem, they (judges) ask questions, make observations.

"I am sorry to say that it is the media which is writing down our observations and flashing them. They (media) have to wait, because our aim is that every judge must be interactive. He cannot keep mum and decide.

"That is why when we visit subordinate courts, we ask the magistrate if somebody is in the witness box and advocates asks unnecessary questions, don't keep quiet. You ask counsel how it (question) is relevant. You eliminate or don't record that question.
"So he (judge) must be an interactive and proactive judge. So, in that way judges need to make observations. But I am using a rider clause here - my personal view is that no judge is entitled to make unnecessary comments de hors to the litigation or de hors to the lis before him."

The CJI designate concurred with the idea that the retirement age of High Court judges should be on par with that of Supreme Court judges--65 years.

"It has to be done. In those (earlier) days, our health condition was poor. Now our longevity is more. That (longevity) is what we consider while fixing compensation. So, 65 years is a normal age. So the government by this time could have enhanced the age of retirement of High Court judges.

"Unfortunately, these are all matters of constitutional amendments which requires two-third majority (in Parliament) and has to be ratified by 50 per cent of the states," he said. Justice Sathasivam brushed aside the suggestion that there should be a cooling off period of couple of years before a retired judge is given some assignment in tribunals or commissions.

"You know our many legislations which enable the government to create tribunals, commissions etc, are statutory provisions. Who has to be made (head of a tribunal etc.) is provided in the statute. Statute says former judges of Supreme Court or Chief Justice of High Courts etc.

"If government wants, let them eliminate that choice. Let them appoint an IAS officer or IPS or ICS or any leading lawyer. So long that provision is there, they have to appoint a former judge.

"We retire at the age of 65 years. Normally, at the time of retirement, a Supreme Court judge might have experienced as a judge, in the High Court and the apex court, more than 15 years. After the age of 67 years or if you say cooling off period of five years after age of 60 year, what can he contribute at that age.

"We have several tribunals like, TDSAT, TRAI, CAT, NCDRC, AFT. Some important tribunals must be manned by former judges of Supreme Court or High Courts. But where there is no statutory requirement (for appointment of former judges), the judges themselves should refuse," he said.