In Conversation With – Justice (Retd.) Shiva Kirti Singh

serving as the Chairman of the Telecom Disputes and Settlement Appellate
Tribunal, New Delhi (“TDSAT”),
Justice (Retd.) Shiva Kirti Singh has been recognised as an extraordinary
legal-mind with an eye for detail. Justice Singh has previously served as Chief
Justice of the Allahabad High Court before being elevated as justice of the
Hon’ble Supreme Court of India. In an exclusive interview for Comparative
Constitutional Law and Administrative Law Quarterly (“CALQ”), Justice Singh responds to questions on Judicial Reforms
and legal issues that have dominated the public discourse. We wish to thank
Justice Singh for taking out the time for the interview.

Justice Singh, you have had an illustrious
career in law. From your days as a practicing advocate to Chief Justice of the
Allahabad High Court and then as judge of the Supreme Court, to now the
Chairman of TDSAT, you have come a long way. When you look back at your
journey, what is that you feel has changed over the years? (For both the bar
and the bench)


Looking back at my professional journey in the Bar and the Bench, I find
remarkable change in the quality of the Bar. 
It is much better than in the yester years, may be because of opening of
a number of National Law Schools with serious course content of five
years.  The Bench largely remains the
same.  Hopefully the better quality Bar
will soon start getting elevated and that may improve the quality of the Bench
as well. 

Owing to the scepticism around the
collegium system for appointment of judges, the executive brought about a
change through enacting the NJAC Act, 2015. The Supreme Court though did not
seem have an affinity for the latter. In the present circumstances, where would
your inclination lie? With the present collegium system or the one prescribed
by the now defunct NJAC Act or any other system?

Singh, J. – No
system is good or bad, it is the people manning the system who make all the
difference. Having said so, I am still inclined in favour of the present
Collegium System but with some minor changes such as a right in favour of the
Executive to veto any particular proposal for elevation for good reasons which
may be made public if the affected person wants to challenge it on the judicial
side.  The number of veto should be
limited to 1/10th of a Court’s strength so as not to adversely
affect the working strength of higher judiciary to a debilitating stage.

CALQ By and large, the proposition that Tribunals/quasi-judicial bodies/ Law Commission of India etc. would benefit from the experience of former judges of the High Courts and Supreme Courts has found acceptance. Concerns, however, arise when few of the appointments are made to politically-sensitive posts (Governor of a state etc.). What is your opinion on the issue regarding post-retirement appointments of Supreme Court/ High Court judges? Do you think that there ought to be rules prescribed to deal with this? In your opinion, will a mandatory “cooling-off” period serve us well?

Singh, J. – Post
retirement appointments of Supreme Court / High Court Judges should be confined
to only judicial posts which, by their very nature, require their experience
and expertise.  For such posts, a cooling
off period of at least six months to an year shall enhance the image of all
concerned, at least in public perception.

CALQ What are the reforms that you
wish to suggest for greater efficiency of the lower judiciary? Do you think All
India Judicial Services will be a more efficient mode of recruitment of judges
to lower judiciary and is now long due?

Singh, J. – Yes,
I am now of the view that at least for lower judiciary it will be beneficial to
have an All India Judicial Services. 
State-wise recruitment should be permitted only when sufficient number
of persons do not opt for a particular State to meet its needs.

CALQ What are your views on the
idea of establishing a separate court of appeals, to lessen the burden of the
Supreme Court? Attorney General KK Venugopal has been mooting for this idea for
a long time and very recently, Vice President Venkaiah Naidu raised a similar
demand. In your opinion is this measure feasible? (If yes) How do we go about
transitioning from the status quo to a new beginning?

Singh, J. – In
my view also, establishment of a separate Court of Appeals as an adjunct to the
Supreme Court shall lessen its burden. 
The idea is feasible provided experienced Judges and lawyers are engaged
to work out a useful compartmentalization of the Supreme Court so as to make it
more useful to the people and the Nation but without compromising its
Constitutional responsibilities.

CALQ In recent times, there have
been occasions when the Hon’ble judges have recused themselves from cases
without providing any reason. Should there be prescribed rules & procedure
to adjudge the need for recusal of a justice from matters before the Supreme/
High Court?

Singh, J. – In
my view no prescribed rules and procedure are required to govern the discretion
of an Hon’ble Judge in seeking recusal from any specific case.  It should be left to the concerned Judge to
disclose or not to disclose the reasons.

CALQ Sir, since you have served at
a High Court as well as the Supreme Court- do you believe that the notion of
‘being a High Court Judge in a remote state/ state far from the parent court is
a form of punishment’ for the sitting judge? If not, in the present system, do
you think transfer of a Chief Justice of a ‘larger’ High Court to a
significantly ‘smaller’ one shall be treated (for lack of better word) a
punishment posting?

Singh, J. – Yes,
I do believe that sending a High Court Judge to a remote State, far away from
the parent Court is a form of punishment but often it helps the concerned Judge
in re-building his reputation in neutral environment.  I am of the firm view that transfer of a
Chief Justice of a bigger and significant High Court to a smaller one is a form
of punishment.

CALQ Recently, J. Chandrachud
remarked that “impeachment is not necessarily an answer in every situation
you can think of regarding judicial demeanour.” The idea is that the judges can
either be transferred or their judicial work can be withdrawn or they can be
impeached. Do you think there is a need for a more nuanced mechanism for
greater accountability of judges for ‘wrongful behaviour’? If yes, what would
you propose as a suitable mechanism?

Singh, J. – I
agree with the remarks of Hon’ble Chandrachud J. If a Judge has committed
“wrongful behavior” in matters unrelated to the judicial work, transfer may be
in the interest of the Institution as well as the Judge concerned but for a
wrongful judicial behavior, there can be no appropriate punishment than
impeachment or removal through any other suitable mechanism which should ensure
that the punishment is proposed by a majority of the Judges of the Supreme
Court and is not merely on the asking of the Executive.

CALQ For long there has been
ongoing debate on judicial restraint vis-a-vis judicial activism. While cases
like Vishakha clearly establish the need for judicial activism, however, there
are other cases where the apex court is criticised for overstepping its powers.
In your tenure as a justice of the Supreme Court how did you go about balancing
these conflicting interests?      

Singh, J. – Judicial
activism is required to ensure that where there is a right, there must be
remedy.  However, it should not be used
to create new rights and thereby encroach upon powers of the legislature.  The Highest Court in India is respected
because it has always shown keen awareness of Constitutional limitations in
respect of its powers.

CALQ Recently, Senior Advocate
Harish Salve squarely blamed the Supreme Court for its verdict on 2G Spectrum
and Coal Block allocation for the economic slowdown in the country. Do you
think the criticism is justified? From your experience, how do the judges take
such criticisms?

Singh, J. – I
do not agree with the views of Mr. Salve. 
There can be no such absolute black or white inference from a judicial
verdict.  Similar view can be taken by
someone of effects of demonetization and the strong measures against wrong
deeds of several Banks.  Like the verdicts,
whether these measures will benefit the country or not can be judged only after
few decades.  Temporarily, such course
corrections do create confusion and inconvenience.  These kinds of criticisms generally do not
affect the Judges and in my view these should not.

CALQ A section of the public
discourse on the Supreme Court in light of the recent events, has had the
tendency to shake the public confidence in the institution. As a former judge
of the Supreme Court, are you worried by this trend? Please tell our readers
what goes on in the minds of the bench when they encounter such events.

Singh, J. – Yes,
as a former Judge of the Supreme Court, I do get worried by the increasing
trend of public criticism of the Supreme Court when aimed not at judgments but
at specific Judges / Chief Justices.   As
a policy the Court rightly ignores such public comments till it finds that the
comments are with a design and meant to interfere with the dispensation of
Justice by the Court.  The power to
punish for contempt is resorted to sparingly, only when the Judges are
convinced that the derogatory comments cannot be by chance but are designed
with malicious intention.  At that stage,
the Court generally does and in my view must act tough with due firmness.

Interview conducted by Gagan Singh and Akhil Shandilya, Editors-in-Chief, CALQ

on 1st November, 2019.