Outgoing CJI Gavai says judges need not rule against govt to prove independence

Outgoing Chief Justice of India (CJI) BR Gavai on Sunday (November 23) said that a judge does not have to prove his independence by ruling against the government, adding that judicial independence is non-negotiable.

Justice Gavai, during an interview with Bar and Bench, further stated that a judge must take his decision in a case must be solely based on the papers before him.

“In some quarters, the notion is that unless you decide against the government, you are not an independent judge. That is not correct,” he said.

“For a judge, you do not decide based on whether it's the government or private individuals. You decide as per the papers before you. But in some quarters, there is a notion that unless you decide everything against the government, you are not an independent judge. It is not a correct approach,” he added.

On judicial transfers

Asked about the controversies regarding judicial transfers during his tenure, Justice Gavai said that transfers were made only when required or guidance of senior judges was needed at the concerned High Court.

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“We only made transfers when it was needed or guidance of senior judges was needed in that High Court. Some transfers were because of complaints received (against judges), but they were processed only after verification from consultee judges,” he added.

As for no woman judge being appointed to the Supreme Court during his tenure, Justice Gavai attributed it to a lack of consensus among the collegium. “We considered some, but there was no consensus among the members of the collegium,” he added.

The ‘creamy layer judgement’

With regard to whether the “creamy layer judgement” should be made into a law, Justice Gavai said that it was up to the executive to take a call on the matter.

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“Whether to give a legislative effect to our judgement is an executive decision. But I had reasoned if son of a chief secretary can compare with son of an agricultural labourer, then it is not equal treatment. The affirmative action reservation is to bring equality when the ones who were deprived could not be brought into the folds of equality,” he said.

“We have seen many Scheduled Caste (SC) families have grown up. We have seen how SC families have got reservations generations after generations,” he added.