Justice Sanjiv Khanna is now the 51st Chief Justice of India. My congratulations to him.
I have a wishlist that I would like to share with him and it reads like this:
First, everyone knows judges speak through their judgments. So, speak when you have to, but through your judgments, not at public platforms. In college, we would refer to constant speechifying as verbal diarrhoea. Its a terrible disease and can get you into into all kinds of messy situations.
There are a few exceptions to this; you could speak (and you should) at judicial academies in different parts of the country. This will immensely benefit judges and judicial officers and you will also get to know their strengths and problems. A token visit is not good enough – it will soon be forgotten.
You could speak at law schools so that students and their professors know first-hand what judges and justice delivery are all about. You could speak on topics like legal aid and access to justice for the disadvantaged, the marginalised, those in custody and a few other sections of society. Something grounded. Do you know, millions of people are demanding justice, but cannot access courts for one reason or another. Please speak about giving them justice. About a decade ago judicial academies talked of a docket explosion, but there was also talk of docket exclusion. This is a reality you could talk about.
Whatever you do, please don’t speak to God. We have 30 million of them plus a few more. Their message is the same, but everyone interprets this differently. Can you imagine what will happen if God tells you and a brother or sister judge the same thing and both (or more) of you interpret the message differently. What will God think of you?
The other day, my doctor asked me to take a particular tablet before dinner. I asked three different Gods when exactly should I take the tablet. I got three different answers. God can play tricks. Don’t mess around with God and if you do, do it privately, not under the gaze of a camera.
Second, while on decision making, may I suggest that judgments delivered by courts should be short and to the point. Remember Lord Denning’s advice – keep it short, stupid. Please share it with your colleagues, but don’t call them stupid. There is no need to sermonise. If the people want to participate in a sermon, they can always go to a satsang and then there are all night jagrans if you are looking for a long sermon. There’s plenty to chose from. So, why bore everybody with judicial sermons they really don’t care about.
One day, I took a 450-page judgment to my neighbourhood book club. This led to an animated discussion – were we expected to discuss and review a judgment or a book? Opinion was divided, as one would expect, but more importantly, nobody cared to read the judgment cum book. So much for respect for the law and the courts.
Many years ago, I met a professor of English who teaches judgment writing. Among his students are judges of the Supreme Court of Canada and the High Court of Australia and many such legal luminaries. He asked me one question: for whom do you write a judgment? There are many answers to this question. It could be the litigants before you, for there is no one else who is interested in the case but the litigating parties. It could be the lawyers since they need to advise their clients, that is why there are law reports galore. It could be your friend, your neighbour or the average newspaper reader who needs to know the law. The words and sentences employed in the judgment must be crafted accordingly. The average newspaper reader does not know Latin. The lawyers in Delhi or Mumbai have a good knowledge of English, but not the mofussil or taluka lawyers. In other words, short and well articulated judgments are the need of the hour, not hundreds of pages.
Third, please pay attention to appointment of judges. The political executive has emasculated the collegium system of appointments. They appoint whom they want to and disappoint others. The committed judiciary of Indira Gandhi’s dreams is gradually becoming a reality today. There are horror stories of pre-appointment consultations between the collegium and the political executive. I don’t believe them, but there are some who do. There is a recent article in the public domain that mentions this quite explicitly. True or not, the fact is some recommendations by the collegium have raised question marks and the failure to make some recommendations have raised even more question marks. We will know the truth in just a couple of years and if we do have a committed judiciary, we might as well write off our democracy.
While on the issue of appointments, the collegium must also discipline itself. If the collegium doesn’t discipline itself, the political executive will certainly not. There is enough anecdotal evidence to suggest that files forwarded by the government for consideration of the collegium do not follow any chronological order and the collegium also does not follow any chronological order in its consideration. So, you have a situation (once too often) when a high court gets precedence over another. Candidates from that High Court therefore get appointed sooner. Why should the collegium play favourites? This unsavoury game upsets the seniority of judges and will have a visible impact about 10 years later when the appointment of Chief Justices and judges to the Supreme Court are made. While this discussion is relevant today, it looks like it will become irrelevant a decade later by which time the political executive will have taken full control of the appointment of judges. Please see if you can guard against this. You and the Supreme Court are our only hope.
Also read: Full Text | ‘The Seven Mistakes of Ex-CJI Chandrachud,’ According to Justice Madan Lokur
Fourth – pendency of cases. This is a massive problem. We now have more than 51 million cases pending in the courts across the country and more than 80,000 in the Supreme Court. Its difficult to find out how many are pending in various tribunals and other adjudicatory bodies all over the country. Is anybody bothered?
I’m sorry to say this, but your predecessors in office have shown hardly any interest in tackling the burgeoning pendency of cases for a variety of reasons – some, because of a short tenure as the Chief Justice and others because they don’t really care. You may be aware that every other day, somebody or the other makes a plaintive cry for justice. They don’t know that they may not get justice for the next 10 or 15 years and perhaps not in their lifetime. On the other hand, there are some who get justice surprisingly quickly. Is this fair? Justice and its dispensation has to be even-handed. The people of the country expect this. Public trust and credibility are the hallmarks of a robust justice delivery system and if these are missing, we’re heading for big trouble.
The huge pendency of cases can be tackled successfully – it will take a couple of years, but it is possible to achieve. Full cooperation and proper planning by the government and the judiciary is essential. At present, neither of them seem interested and the beat goes on.
It is essential to make all high courts equivalent to the Supreme Court of the state. Why should the Supreme Court entertain cases relating to the interpretation of state and municipal laws? The high court of the state must have the final word and if it makes a mistake, it can always correct the error. Even the Supreme Court corrects its mistakes, why can’t the high courts? The Supreme Court has always been loathe to interfere in interlocutory orders, but now petitions are filed and sometimes (though infrequently) entertained by the Supreme Court. Ask yourself, why?
Finally, please take your colleagues into confidence in whatever you do, particularly your potential successors. Justice management is not a one man show.You can’t tackle all problems by yourself. You also can’t tackle them during your tenure – some problems take time to get sorted out. If your colleagues are involved in the decision making and implementation process, continuity is assured. Often, the succeeding Chief Justice undoes what his predecessor started out to do. Don’t let that happen. Chief Justices of high courts are key players in the justice system. You can (and must) consult them also. After all, some of them might become judges of the Supreme Court one day.
You have inherited a great legacy, that of your uncle Justice H.R. Khanna. He spoke truth to power and in doing so, he was true to the constitutional oath that he had taken. Nothing less, absolutely nothing less is expected of you. I am confident you will take correct decisions in the interest of the Supreme Court and justice delivery across the country. Worrying about the legacy that you have inherited, not your legacy, will help.
Justice Madan B. Lokur is a judge of the Supreme Court of Fiji. He is former judge of the Supreme Court.
