Justice Hrishikesh Roy interview: ‘A mature govt wouldn’t interfere too much with judiciary’

Did you also discuss business? There was a plan to reiterate or update the judicial code of ethics?

The CJI had a couple of ideas, of course. He wanted to introduce a process of interaction with potential judges in their region rather than calling them to Delhi. We discussed the potential reaffirmation or updating of the ethics code. Not like a formal announcement, but we had discussions about how the institution might address certain situations.

Are you referring to how the Supreme Court intervened in the incident where Allahabad High Court judge made controversial remarks against Muslims in speech?

That is the recent incident. But whenever such incidents happen, there are a few options. Trying to counsel or talk to the individual, transfer, holding back work, the in-house inquiry procedure or impeachment. Even when you transfer, if the government does not want it, there are instances when it has not given effect to such transfers.

So what should the institutional response be in such cases?

I am not sure. I think all our options are soft options and not very effective. We are not equipped to deal with such situations. You see, the Constitution has several safeguards for judges, which are required for us to do our job, free from any external pressures. These safeguards are required but they are also coming in the way of institutional responses. But I must add that this is just one or two judges in over 1000 judges of constitutional courts. Perhaps, we made a mistake in choosing a person but it’s not as if everything is bad.

You mentioned transfer as an option. A transfer to the North-East is considered a punishment in judiciary but is that a solution?

Transferring someone as punishment to any of the Northeastern High Courts would offend the people there. They feel insulted if a person with a bad reputation from state X is sent to them. You see, these are much smaller high courts, some with three judges. If one of the three judges is problematic, one-third of the High Court is affected so the impact is much larger. I feel it is better to move them to a larger state where their impact is less.

What difference has live streaming and social media made to the work of the courts?

When I was a lawyer in Guwahati, Assam was a disturbed area and because I did a lot of pro bono work, media persons would ask me for details of some important hearings. Eventually, alongside my practice, I also used to write, as a legal correspondent, for the Press Trust of India and The Assam Tribune. Being a lawyer means being sensitive enough to understand that the judges’ passing remark does not necessarily reflect the final judgement. Nowadays, with constant focus and live streaming, reports are often limited. They may catch the readers’ eye, but have very little to do with the actual proceedings. By the time you are in the Supreme Court, there is some experience. But at lower levels, like in a trial of a high-profile person, it is challenging for less experienced magistrates, not to be swayed by external focus.

How does one uphold judicial ethics amid this constant public gaze…temptation to play to the gallery.

Everyone is administered the oath when they become a judge but for those who lead by the oath, these principles are sacrosanct. Why do we administer the oath in a solemn ceremony? So the person knows that they are stepping into a responsible position and cannot behave in a manner unbecoming of a judge. They need to be aware of their responsibilities, not only during court hours, but beyond. Most of us do that but if someone doesn’t believe in that, perhaps a mistake was made in choosing such a person. The judging or choosing process may involve scrutiny. You may find someone suitable, but over time it may appear that they were not the right choice. Such mistakes can happen in any system…right now we do not have an effective answer to address such an aberration.

Is it worrying when a High Court judge resigns to join a political party?

It is not just now… any government tends to prefer people on the bench who are sympathetic to their cause. It’s a natural tendency. Judges with their experience can balance into the right thing, but the government must also realise that it is not forever. We are a democratic country. Today, we have a government. Tomorrow, it could be another government. A mature government wouldn’t interfere too much with the judiciary. It does not benefit them.

What has changed in the judiciary since the 2018 press conference by four judges?

With hindsight, the four judges, I think, were pushed to the wall and felt that they had to act. I’m sure they thought it through, even if not for long, considered the implications of organising a press conference. Perhaps, one or two judges were more active and others went along. Maybe they wanted to make a statement but there was a battery of media persons and whether that was known to everybody is also a question I have in mind. But, privately, there is a sense that they should have avoided it if they could have.

Since the press conference, there is a bigger spotlight on the office of the CJI and how they deal with other judges…

A Chief Justice, besides being wise about the law, needs to be wise about life. Life is never a level playing field. There are pressures, counter pressures and a constant flux. The dilemma is always there to do something or not to do something. A judge is judged by the way he is conducting himself. The visible part is what you see in court but the other parts are not visible to public eye. You may talk about one judge or two judges but not about the rest. If a judge is not talked about, she is a judge who can be considered to have balanced things well.

What are your views on former CJI DY Chandrachud inviting the Prime Minister for the Ganesh puja?

Obviously, it was a private function and he is a friend of mine. He may be Chief Justice Dhananjay for you, for me, he is Dhan. We are batch mates from law school. I thought it would have been better if it had been avoided. Or, at least, if there were other guests, it would have not mattered. I am sure nothing of importance was discussed in that meeting. I am very confident about that. That image could have been avoided because the public will interpret it in a certain way.

The government last year issued a circular withdrawing from arbitrations in big public contracts. Does that add to the pendency problem?

When the governments aims to make India a hub of arbitration, such memos send contrary signals. Either make a policy decision that you’re not interested in arbitration and everyone speaks in one voice…In different forums, the government has expressed a desire to make Delhi or Mumbai hub of arbitration and compete with cities like London or Singapore. I feel this may not reflect the government’s complete policy. Because internationally investors want assurance of a quick redressal mechanism which is crucial for attracting big investments.

Will you be taking up a post-retirement job if the government offers one?

I was sounded out a few months ago to gauge my interest and I said no. I have politely declined when someone from the government called me as well. I want to be a private individual after retirement. My immediate task is to find rental accommodation and Delhi is an expensive city so I hope for professional work to sustain myself. Apart from that, I have my calendar marked out for the theatre festival organised by the National School of Drama, which I will go see. When people say they must raise the retirement age, I say oh, no, not for me!

As you retire, what is one thing about the judiciary that worries you and what gives you hope?

The complexity of issues we deal with is only increasing. That is a challenge for the future. What gives me hope is that the younger lot is bright. For many of them, law is a first choice and they want to build their career so they will bring great value.