Conversation with Justice AS Anand, Former Chief Justice of India

Justice AS Anand visited NUJS this year to deliver the annual DD Basu Memorial Lecture. Alongside, he kindly consented to have an interview session with us. Here are the excerpts of the interview. In the conversation, Justice Anand talks about various issues, such as governance challenges in the NLUs, the role of the NHRC, the Supreme Court decisions on minority educational rights, as well as Article 370.

Q: You were part of the Governing Council of National Law School Bangalore and you were also the  first Chancellor at NUJS, what do you think is this biggest governance challenge faced by the National Law Schools at this point of time?

A: I believe Lack of trainers, is one of the foremost problems that the National Law schools are facing today.  Though I wouldn’t say they are doing wonderfully well, they are doing a good job as their products stand out from the others. I have had a number of interns coming to me when I was in the office not only as a Chief Justice of India or as Chairman of National Human Rights Commission but afterwards, when I was a   freelancer. I have had some interns coming to me and they have always impressed me, more than the other students.

Q: That takes us to an allied question. It has always been noticed that the students of NLUs don’t join litigation or higher judiciary and tend to go into the corporate world. What is your opinion on this issue, and how can it be remedied?

A: The NLUs were conceived with the idea of improving the quality of the profession, but unfortunately, in majority of them, today, starting with National Law School Bangalore, campus recruitment is carrying students to corporate firms. Only a few get into to a solicitor’s firm, and even there the students would be engaged only in clerical assignments. That was not the idea for inception of the National Law Universities in the country. These universities have to provide a springboard for the students who join this profession. As Chancellor, when I laid the foundation stone of the NALSAR Hyderabad, I recall having requested the Senior Advocates and other senior lawyers to come forward and offer the students packages which could provide them with an incentive to join the practice. It may not be possible to match the packages offered by the corporate law firms, but they must take them and groom them. They often say there is overcrowding in this profession, but one must always remember that overcrowding is always at the bottom or the lower middle level of it. If you go at the top, for example in the Supreme Court there are only few and you can count them on your fingers.

I have always advocated that the senior lawyers owe it to the profession, to take these bright young students from the national law universities and groom them. I myself am now an antique, but senior lawyers are the ones who have to take it forward.

Q: You had a very long and illustrious career in the higher judiciary. There is a provision in the Constitution that allows eminent, distinguished jurists to be appointed directly to the Supreme Court. Do you think this provision has been implemented enough?

A: I believe that after the appointment of Justice Durga Das Basu, there has not been any such instance where there was implementation of this provision.

Q: Would you like it to be used more often?

A: Yes, but for the implementation of this provision the candidate must be of real eminence and not just in the eyes of those who matter in the profession or legal fraternity but also in the eyes of public. .

Q: How do you think this can happen, considering the collegium system of appointment?

A: On the present collegium system, the less said the better.

Q: That takes us to another question in the recent debate surrounding the age of the retirement of High Court judges, and whether it should be raised. What is your opinion on that?

A: I think that the age of the retirement should be increased. . However I am not saying that the HC judges who retire at 62 are any less brilliant than those who retire at 65 from the Supreme Court. We have had brilliant judges who could not make it to the Supreme Court, not because they don’t deserve it, but for circumstances for which they were not responsible. Two people I hold in very great esteem were both part of the Calcutta High Court, Justice Chittatosh Mukherjee and Justice PD Desai. They deserved to be in the Supreme Court which I believe has been left poorer due to their absence.

Q: You’ve had a very long association with the Jammu and Kashmir. You were the Chief Justice of the High Court there and you also authored a treatise on their Constitution. What is the constitutional situation there, and what do you think is the reason behind the lack of academic engagement with the issue, as the current reportage is mainly political and sensationalist?

A: The issue of Kashmir is embroiled in politics and it is an issue which is not devoid of solutions. Actually what is the problem? There is not even iota of doubt that the accession of Kashmir to India is full, final, legal and binding. Everybody forgets this, because it suits the powers on this side of the border and that side of the border, because the Kashmir issue has become their bread and butter, their halva-paani.

In 1947, sovereignty returned to the rulers of India. In Kashmir’s case however, at that time, Maharaja Hari Singh did not accede to either state, but signed a standstill agreement with India and Pakistan. Pakistan signed it, but went against it and invaded the region. When asked about it there were reasons as absurd as the invaders not being in their control. But then people can always look into the facts and understand the reality.  It was on October 26^th, 1947, that the Maharaja signed the instrument of accession, exactly the same as other states and Mountbatten as the Governor-General of India accepted that accession. After accepting it he wrote a letter saying that that the final decision can be taken by the popular vote after law and order is restored and the land is rid of invaders. There was no legal sanction for it, and even assuming there was, the necessary preconditions have not been taken care of.  Do also note many people don’t know that the PoK has a Constitution of its own, and that constitution does not say they are part of Pakistan.

The Constituent Assembly was constituted in J&K and in 1955 when the drafting took place, Sheikh Abdullah gave the people the choice either to accede to India or to Pakistan or stay as separate from both. He repeatedly asserted that, neither Jinnah’s animosity nor Nehru’s concern should influence this vote and it should be, decided freely and fairly. The people decided that the region shall remain an integral part of India which is now reflected in Article 3 of the J & K Constitution. If that is not a referendum than what is? That assembly was the most fair one and no one has raised questions on their representative character. Hence, there is no doubt that the accession of Kashmir to India is full, final, legal and binding. However everybody forgets this, because it suits the powers on both the sides of the border and also because the issue has become their bread and butter.

Q: Then why do we have Article 370?

A: Articlce 370 has been created as a bridge. One may note that only at the stage just before the third draft of the constitution, the members of the Constituent Assembly realized that nobody from J&K was present. Then after consulting Sheikh Abdullah, 4 persons were nominated, who made it extremely clear that since they had not taken part in any discussion or drafting or debate in the framing of these provisions, special provisions would have to be created in their favour.

Q: You referred to judicial independence during the course of your earlier address. Now that you are a retired CJI, and you see judges approaching their retirement sometimes getting affected by the lucrative post-retirement benefits, what is your take on this issue? Do you think there can be judicial independence in light of post-retirement benefits?

A:  I don’t have any comments about my predecessors, but I can tell you personally that for 6 months after retiring as CJI, I refused to take any arbitration, any opinion or any consultation. A number of lawyers approached me asking to make an exception for them but I needed my cooling time. When the Attorney General approached me saying that the government was considering my name as NHRC Chairperson, I said I’d be very happy to have my name not considered. But since the Act said it had to be a former Chief Justice, it was an important call and I wouldn’t run away. I accepted it also because since at that time there were only 2 or 3 people who were eligible for this.

However, one concern is the number of tribunals that have been constituted.

Q: Regarding the NHRC, ever since its inception we’ve seen increasing involvement in the judicial system. We’ve seen this in the context of post-Godhra cases in Gujarat, and in the Bandhua Mukti Morcha and bonded labour cases. How do you perceive the role of NHRC with the changing times?

A: Whenever there is violation of human rights and it is brought to the notice of the NHRC or NHRC comes to know of it, it is morally and legally bound to consider it, take notice of it and take remedial steps. All the orders in Godhra case and others – I am the one who as chairperson of NHRC, took to the Supreme Court. Many people warned me that the Supreme Court might not interfere or that this might cause some criticism, but to me my conscience was clear, that I had approached the highest court to file the issue of infringement of human rights of the people. And it is then, the court’s conscience which determines whether they want to interfere in the issue or not. But it the end they did interfere.

Q: What do you think about the entire paradigm of minority rights adjudication by the Supreme Court? There have been several Constitution bench decisions, but none have cleared the air.

A: In the autobiography of Fali Nariman, Before Memory Fades, there is a reference to minority educational institution cases. I had asked him, when he was counsel for the minorities, whether the founding fathers contemplated that Article 30 would be applicable to post graduate speciality and super-speciality courses. He vehemently answered “yes, yes, yes!”. In his book, when quoting this incident, he writes, ‘but now I realize I was wrong. If I had admitted it back then , we would not be in the mess we are in today, which the Supreme Court has created, in case after case.

Special thanks for Prof. Shameek Sen for helping us conduct this interview.