Outgoing CJI Gavai defends collegium system, bats for creamy layer exclusion in SC quota

New Delhi: Outgoing Chief Justice of India B R Gavai on Sunday strongly defended the collegium system for appointing judges, made a strong case of exclusion of affluent people from Scheduled Caste quota, and regretted not appointing any women judges during his tenure in the top court.

In a candid informal interaction with journalists at his official residence, the 52nd CJI, first Buddhist and second Dalit to helm the Indian judiciary after K G Balakrishnan, said he was leaving the institution "with a full sense of satisfaction and contentment" and reiterated his resolve to not accept any post-retirement assignments.

"I made it clear when I took office that I am not going to accept any post-retirement official assignment. For the next 9-10 days, it's a cooling-off period. After that, a new innings," he said.

On his last day in the office, Justice Gavai talked about almost all critical issues including the shoe throwing incident, pendency, criticism of his verdicts on Presidential reference, his controversial views on exclusion of creamy layers amongst Scheduled Castes from quota benefits, and under representation of women in higher judiciary.

Strongly defending his views on introduction of a creamy layer concept to exclude affluent people amongst the SCs from quota benefits, he said, "If benefits go repeatedly to the same families, a class within a class emerges. Reservation must reach those who truly need it." "If a chief secretary's son or the child of a landless labourer working in a village... has to compete with the son of an IAS or an IPS officer... would it be on an equal platform," he asked.

He warned that without such exclusion, reservation benefits tend to be cornered by a few families across generations, leading to a "class within a class." He, however, clarified that the final call on this issue "has to be taken by the executive and the Parliament".

Strongly defending the collegium system, he said it helps in "maintaining independence of judiciary".

While acknowledging that no system is perfect, he stated it is "better suited to select" judges as lawyers "don't come and argue before the prime minister or the law minister". "There is criticism that judges appoint themselves. But this ensures independence. We also consider Intelligence Bureau inputs and the executive's views, but the final say lies with the collegium." Responding to criticism that he diluted timelines for governors' decisions on bills, Justice Gavai said, "The Constitution does not permit the court to read timelines where none exist. But we have said the governor cannot sit indefinitely. Judicial review is available in extreme delays." He cited the "separation of powers" and maintained that while a governor "cannot sit over the bill for endless time" and a limited judicial review is available, the judiciary cannot read something into the Constitution that isn't there".

On taking up social work, Justice Gavai, the son of political activist Ramkrishna S Gavai, said that it was "in his blood" and that he hopes to spend time working for tribal welfare in his home district of Amravati.

Calling pendency a "huge problem", he noted that the top court under his leadership started leveraging artificial intelligence (AI) for categorisation and classification of cases and tackling it must be the "utmost priority".

"AI will help. But the utmost priority must be reducing pendency and improving disposal across all levels of the judiciary," he said.

The outgoing CJI regretted being unable to appoint a woman judge to the top court during his tenure, but clarified it was not due to lack of commitment.

"The collegium decisions require at least four judges on board. Consensus is a must. No name came that the collegium could clear unanimously," he said.

Then came a question about Justice B V Nagarathna's written dissent to collegium's recommendation to elevate Justice Vipul Manubhai Pancholi to the apex court.

"It is not happening for the first time. If the dissent had any merit, four other judges would have agreed on it," he said.

He did not concur with the popular view that the court must rule against the governments to establish that they are independent.

"You decide on the basis of the papers before you. The government may win or lose. Independence is not measured by how often you rule against the Centre," he said.

Justice Gavai also spoke about the unprecedented and shocking incident of an elderly lawyer hurling a shoe towards him in his courtroom, apparently over his purported remarks on Lord Vishnu.

Asked why he chose to "forgive" the lawyer, he said, "I think that was the decision which I took instinctively, maybe because of the thought process that has evolved through childhood. I thought that the right thing was to just ignore." On the role of social media on court proceedings, he expressed concern over misreporting and misuse of live-streamed content.

"What you don't say in court is put in your mouth... Perhaps the next CJI can examine this," he said and referred to AI-generated memes and videos of the shoe throwing incident.

On the abolition of death penalty, he said that it was being awarded in rarest of rare cases and moreover, he, as a judge, never awarded it during his over two-decade career in judiciary.

"For 20-“30 years, jurisprudence has moved toward long incarcerations rather than death. I haven't upheld a single death penalty," he said.

He said if the judges' relatives are meritorious then they should not be deprived and speaking for himself, he said they are rather put to stricter scrutiny while being recommended for the judgeship.

Justice Gavai, who introduced quota for OBCs, SCs and STs in appointments to the top court staffers, refuted the observations that there were lesser women staff in the apex court.

He also highlighted that the government cleared nearly all names recommended by the collegium during his tenure.

"About 107 judges were appointed across high courts. I gave 14 judges to Bombay HC and 12 to Madhya Pradesh." Asked whether the prime minister visiting a CJI's residence affects judicial independence, he declined comment.