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Justice Sachar’s New Book Stirs Talks Over the Wrongs in Judiciary

Retired SC Judge Madan Lokur pointed out that Justice Sachar did not allow politics to cloud his judgements.

Updated
Law
7 min read
Published posthumously by Rupa Publications and bearing a Foreword by Indian Jurist Soli Sorabjee, Justice Sachar’s autobiography “In Pursuit of Justice” stems from his handwritten notes and some recorded interviews.
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“The late Justice Rajinder Sachar delivered a lot to the society; and not merely to the petitioners, in the capacity of a judge,” said social activist Medha Patkar at the launch of Justice Sachar’s autobiography In Pursuit of Justice, on Tuesday, 22 December.

Meanwhile, retired Supreme Court Judge Madan Lokur pointed out that Justice Sachar did not allow politics to cloud his judgements. “He was made of sterner stuff,” said Justice Lokur.

Published posthumously by Rupa Publications and bearing a Foreword by Indian Jurist Soli Sorabjee, Justice Sachar’s book stems from his handwritten notes and some recorded interviews.
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'Sterner Stuff'

Participating at a panel discussion about the contemporary issues pertaining to Indian judiciary, steered by Indian journalist Rajdeep Sardesai, at the book launch, senior advocate and politician Kapil Sibal pointed out that you cannot really blame the executive for the failures of present day Indian judiciary, as “judges have to be made of sterner stuff.”

“Ultimately, justice is delivered by human beings. And judges must be made of sterner stuff…If those men sitting in those chairs do not deliver justice, don’t blame the executive…So, if the ‘love jihad’ law, CAA, detention is bad, it must be dealt with (by courts), immediately.”
Kapil Sibal, Congress leader and Senior advocate

Sibal then went on to refer to an ADM Jabalpur case that finds mention in Justice Sachar’s autobiography, in which the judges, allegedly, “did not rise to the occasion”.

Justice Sachar, in his book, wrote:

“On 28 April 1976, the Supreme Court delivered a 4-1 decision on the ADM Jabalpur case, which will continue to haunt the judicial fraternity.

The Supreme Court concluded that ‘In view of the Presidential order dated 27 June 1975, no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous consideration.’ In dire times, the judiciary is expected to be a bulwark against executive excess.

Here, to our everlasting shame, it was the Supreme Court that dealt a lethal blow to freedom by holding the view that right to life does not survive during an Emergency!

Of the five senior-most judges of the Supreme Court, four had ruled in favour of the government, namely, Chief Justice Ray, and Justices Beg, Chandrachud and Bhagwati. The one judge who showed exemplary courage by being the lone dissenter was Justice Khanna.”

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Agreeing with Sibal, on the need for judges to be made of “sterner stuff”, retired Justice Lokur said:

“Kapil is right in saying the judges have to be made of sterner stuff, and that is what Justice Sachar was.”

Justice Lokur reiterated, “Justice Sachar did not allow politics to rule his judgement and that was because he was made of sterner stuff. And if judges are not made of sterner stuff, you’re going to get judgments like ADM Jabalpur.”

Former Attorney General of India, Mukul Rohatgi, however, opined that if the judiciary is failing to carry out its duties, it is because the courts are overburdened.

“Don’t forget that the court is swamped with a number of appeals, and the court has opened its doors much wider than what the Constitution had desired. It has become a super-appellate court. The system is collapsing.”
Mukul Rohatgi, former Attorney General of India

Social activist Medha Patkar, on the other hand, firmly disagreed with Rohatgi, and said:

“Today we see, and we have experienced, the judiciary is not taking any burden in following the constitutional framework… We know that the judiciary is not looking into what Justice Sachar would have.”   

Justice, Over Law

Journalist Rajdeep Sardesai further asked Justice Lokur: “How does a judge, in a polarised society, remain above the din and deliver justice in an equitable manner?”

In response, Lokur pointed out that Sachar, in his autobiography, had spelled out two mantras:

“One, it is the Constitution which is above everything, so you go by the Constitution. Two, judges have to be people oriented. Which means, don’t get into technicality. You have to do human justice. One of the examples he (Sachar) gives was a case of divorce by mutual consent.”

“I particularly remember a case in which a man had been granted a divorce by the lower court, and his wife appealed against it in the high court. I was sitting on a division bench with my colleague, Justice Leila Seth. I asked the woman why she was asking for a continuance of the marriage when her husband was misbehaving. She replied that she needed financial support to educate her daughter and get her married. I asked her if she would agree to a divorce by mutual consent, as permitted by law, subject to the husband contributing an appropriate amount for the education and marriage of her daughter. She readily agreed. The husband too was willing.

Normally, the application for divorce has to be filed in the lower court. Both parties are required to wait for six months. After that period, if they still want a divorce, it is granted. I was conscious of the fact that the whole proceeding could take time. I therefore asked the couple to file a petition under the Act for Divorce by mutual consent before us in the high court so that we could grant them an immediate divorce. They had already been living apart for more than two years.

My colleague, Justice Seth, looked at the matter in a purely legal manner. She asked me how we could grant a divorce by asking for a petition to be filed in the high court, and without waiting for the prescribed six months. I tried to persuade her saying, who knew what would happen in six months; why not give relief without delay, especially when the husband and wife were agreeable? As mentioned earlier, they had been living apart for a much longer period than the six months required by law.

Technically speaking, Justice Seth was correct. I felt that a purely technical approach to the law—sending them to the trial court—would be a denial of justice and equity, and I preferred justice over law.”

Referring to the recent “love jihad” ordinance passed in Uttar Pradesh, Justice Lokur said: “There is no way this (UP government’s) ordinance can be sustained, either by a constitutional point of view or in a people-oriented way.”

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On the Master of the Roster Issue

“...Now, this is where a nexus between the judiciary and the executive became evident, leading to one more instance of the judiciary letting us down. The Chief Justice at that time was Prakash Narain. As I have mentioned earlier, he had gone along with the executive in the matter of the supersession of two judges in 1981.

He was a good chap but not a strong judge. Also, I suppose he succumbed to a human weakness—he was retiring in August 1985, and naturally, he was keen to go to the Supreme Court. He could be spoken to by Shiv Shankar, M.L. Fotedar and others.

At the time, H.R. Bhardwaj was the minister of state for law. He did not possess much, shall I say, delicacy. Lawyers knew this about him.

He knew my general approach and also that if the petition merited a decision against the government, I would decide so. He therefore did not want the matter to be heard by me. According to procedure, the Chief Justice periodically decides the roster for each bench and judge as to the kind of matters they will be handling—criminal cases, service matters, writs or civil constitutional cases. The normal practice is that the Chief Justice and the senior-most, or first puisne, judge hear civil appeals, important writ matters or constitutional matters because it is considered that he, or she, would have more experience. I was the senior-most judge at the Delhi High Court at that time, with more than a decade of experience in handling diverse types of cases, of which the last four years had been dedicated to civil constitutional matters.

There was no way Chief Justice Narain could not allow me to hear the matter. If I were a sitting civil judge, it had to come back to me. What he did was that after the winter break when it was time for him to decide the roster, he made my bench a criminal bench so that I could hear only criminal appeals. This was most unusual because the first puisne judge is always given civil work. The purpose of the Chief Justice’s action was glaringly obvious.”

Justice Lokur, at the book launch, said: “Master of roster is in charge and if he gives precedence to some cases and not to others, you have institutional problem. This is also an individual problem as some judges may find an important case less.”

Medha Patkar also said that when the courts “deal with issues of human rights and activists rights, then they really discriminate between human rights activists but corporate activists. This is clearly seen in cases of Varavara Rao, Sudha Bharadwaj, Stan Swamy, etc.”

“Justice Sachar believed in upholding human rights and mass movement. We have wide range of issues to deal with. It is violence that comes in when activism and activists are incarcerated.”   
Medha Patkar, social activist

While former Attorney General Rohatgi did agree that master of roster gives “an indefinite power to hear the cases,” he seemingly referred to the bail granted by the Supreme Court to Arnab Goswami, and said:

“You talk about Stan Swamy, you talk about XY, there may be aberrations. You talk about a journalist getting bail in the vacation…it was about freedom of speech…that bail was equal to 1,000 bails, and 1,000 bails cannot be heard in the vacation.”     
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Rajinder Sachar – More than a Good Judge

“He delivered a lot to the society and not only to the petitioners as a judge. He was not necessarily judging the judges but judging the judgments. The courage today is lacking in a lot of judges.”   
Medha Patkar, social activist

During the course of the panel discussion, Patkar had also said: “Justice Sachar was a great mentor and a very close friend, philosopher and guide.”

Further, she stated that, “as the chairman of PUCL, he fought every battle, not only right to food, but right to non-violent agitation.”

In fact, the protection of civil liberties is necessary not only for those who are victims at a given point of time; it is equally necessary for all those who want nothing more than to live peacefully in society. If one does not speak up for those whose civil liberties have been violated, there will be no protection for anyone in society. It is only when we are able to create a society where nobody can get away with human rights violations, that there can be peace.”

Justice Sachar’s grandson, author Sanil Sachar, fondly described him as a friend to all, a sounding board and a gentleman.

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