“Like all aspirants, I had some rivals who did not want me to become a judge.” – Justice Mukul Mudgal

Justice Mukul Mudgal, former Chief Justice of Punjab & Haryana High Court has about 25 years of experience as a litigating lawyer after which he was elevated as a Judge of the Delhi High Court. He later went on to become the Chief Justice of Punjab & Haryana High Court. Passionate about sports, J. Mudgal has been involved in the drafting of National Sports Development Bill that proposes to bring all sports federations, including the BCCI, under the purview of the Right to Information Act..Recently, the Supreme Court has appointed Justice Mukul Mudgal as the head of three-member panel to inquire into the allegations of IPL spot fixing and betting. Justice Mudgal has been very vocal about legalising sports betting in the country..In this interview with Bar & Bench, Justice Mudgal talks about the initial years of his experience, his elevation to the bench and various roadblocks, his thoughts on the collegium system, judges salary and other varied issues..Bar & Bench: You were born in a family of musicians. What drew you towards law?.Justice Mukul Mugdal: My parents were Indian Classical Musicians; my mother was a performing artist and my father was a music teacher who was honored with Padma Shri. They were running one of the renowned institutions of Delhi. Therefore, I had to be top of the line to gravitate to music. Since, I was fond of sports in school, I could not visualize myself being good in music. I had some interest in music and I still have lot of interest in music but I didn’t fancy myself as a renowned musician. I always had the passion for standing up for the underprivileged and perhaps that made me gravitate towards law..B&B: How were initial years of your career?.MM: I was fortunate to join the office of one of the leading Constitutional lawyers of India, Late Dr. YS Chitale. I worked with him for 5 years till I became an Advocate on Record (AoR) in 1978. It was grueling but also one of the best learning experiences. Dr Chitale was a wonderful human being, very generous but extraordinarily tough as a senior. I may have been stressed at that time but those 5 years set up my basics. I am eternally grateful to him for making me work as hard as he did..After I passed the AoR exam, he said that I should be on my own. He advised me to work with one of busiest lawyer’s office in the Supreme Court, Shri. PH Parekh. I worked with him for a year..B&B: You were appointed a Judge of High Court of Delhi on March 2, 1998. How did it all happen?.MM: I was the Secretary of the Supreme Court Legal Aid Committee from 1986 to 1995. We did lot of pro bono work including Sunil Batra, Prem Shankar Shukla (handcuffing case), the Bihar under trials case etc. I was amicus in all these matters. In 1994, Chief Justice Venkatachaliah had asked for my consent to be appointed as judge but he became too busy thereafter, and that proposal didn’t go forward. Then in July 1997, Chief Justice Verma asked for my consent. I told him that my consent had been obtained once before and it had affected my work. But he assured me that the appointment will come through and to his credit it did. Though there were some road blocks in the law ministry, two very eminent Senior Counsels, one of whom was the then Attorney General Ashok Desai and the other Shri. Soli Sorabjee, helped in clearing these roadblocks..B&B: What roadblocks are you talking about?.MM: Political roadblocks. Like all aspirants I had some rivals who did not want me to become a judge. Initially the Delhi High Court Bar was of the view that an outsider i.e. Supreme Court practitioner should not be appointed as a judge in the Delhi High Court. I must say that to the credit of the Delhi High Court Bar, within a month or two, they accepted me as one of their own and gave me tremendous love, affection and respect..B&B: What do you think of the collegium system?.MM: Look, I had some role to play in the Advocates on Record case; I was the AoR in that case. The judgment was warranted because at that time, executive interference had become disturbing. Some good names were knocked off, some bad names were put in, and the executive had the last word. So, in those circumstances the judgment strove for judicial independence..The collegium system works really well when all the members of the collegium are objective and strive for the betterment of the institution. It is a disaster when you get together and say “one of yours, one of mine” or let personal likes and dislikes come in the way of merit. Judges who follow the path of least resistance and do not decide controversial cases but otherwise have kept their records clean do tend to get appointed..Fali Nariman who led the argument has said in his book that one case which he regretted winning was the Advocates on Record case. Perhaps it is time to bring in a change, but I would still maintain that judicial primacy must be there. There must be inputs from the leader of the opposition, the law minister and one eminent jurist but there must be at least 3 to 4 judges and one eminent retired judge so that selection gets a wider input. It should not be a closed-door affair as it is today..B&B: What are your thoughts on the National Judicial Commission?.Mukul Mudgal: I think the time has come to alter the collegium system. Not to totally replace the collegium system, but to alter it, to bring in outside inputs. That has become necessary in view of the nature of appointments. It is not that outstanding judges have not come through it, some of the best judges have come through the collegium system; but the not so good ones have also come in and that is why change is required..B&B: What are your views on the All India Judicial Services?.Mukul Mudgal: It would be a welcome step provided those who enter the judicial services are assured or given at least a 40% to 50% chance to be in the High Court. That is when you will get the best talent at the grass root level. Secondly, this obsession with seniority in promotion of district judiciary must be abandoned. A person whose date of birth is such that he does not stand a chance to go to the High Court, might not strive for excellence though he may have merit. It is not that seniority should be ignored but merit must take the front seat and seniority must be secondary. There should be a minimum threshold, say 5 years or 10 years of experience, beyond that the most outstanding should be picked up and taken to the High Court. Of course, there is a chance of favoritism there but by and large I think, then, everybody will at least strive towards excellence..B&B: What are your thoughts on judges taking a post retirement job?.Mukul Mudgal: I would not like to comment on it because I have refused all post retirement jobs. It is a personal choice..B&B: There is a huge pendency of cases. What can be done to bring it down?.Mukul Mudgal: We have to adopt two major measures. One is get rid of Order 21 i.e. execution of decrees. It is one of the most arcane things in the Civil Procedure Code and adds to at least 40% of our litigation in the district court. My view is that the judge who delivers the judgment must ensure its execution in 30 or 60 days. Do not have execution separately, because the woes of many decree holders start only after the judgments are delivered. This must be immediately scrapped and this itself will lead to at least 30% reduction in arrears..Secondly, in the criminal justice system the present system of plea bargain is a disaster. I think the criminal law system, must be more flexible and must give power to compromise matters. If you do these two things, it will help reduce cases..Also make sure the under trials don’t clog the jails. I think we will go a long way then. More than half the work in the district judiciary on the criminal side is bail [matters]. I would say, if the offense is not heinous or of such a nature as to shock the conscience of the society, bail must be the rule, as long as the person ensures he would not run away and does not interfere with the investigation. We are clogging up jails. Most of the sessions judges and magistrates are unwilling to grant bail, fearful of the higher courts as the High Court may take the view that the bail was given for the wrong reasons. I, as Chief Justice, always strove to assure the District judiciary that bail must be granted liberally provided the criteria are met; and nobody will take an adverse view of it. So, I think all this will go a long way. All these fast track courts are a waste of time and are not going to help..B&B: What about increasing the number of judges?.Mukul Mudgal: Certainly, our judge to population ratio is worse than some of the countries that are not considered developed. The number of judges is totally inadequate..Look at the kind of work, which a Supreme Court, High Court or a district court judge does. As you come down the ladder you find that district judges have to handle more and more cases. Where will you get the quality in work? A poor magistrate has to handle hundreds of bail matters and now he has to show the number of disposals as well. There is this huge obsession with the number of cases disposed but that leads to shoddy disposal, to numbers being inflated. The Delhi High Court decided, when I was there as a judge, that it will not insist on number of disposals per judge, and the actual disposal went up and quality of work went up too. I think these are important factors. There is no number of disposals required for a High Court judge or for a Supreme Court judge but it is expected from a magistrate or a district judge. So prescribe such criteria for High Court judges and Supreme Court judges because there have been more than one non-performers both in High Courts and the Supreme Court..B&B: Why do you think that the government or the state remains the largest litigator?.Mukul Mudgal: I am going to tell you something about one of the government institutions called the National Highway Authority of India (NHAI). NHAI had constituted an independent expert group for settlement of disputes and I used to preside over it, which also had a former deputy CAG, one former vigilance officer and one retired engineer of NHAI..We used to go through the cases, which the NHAI was pursuing, and advised them whether to carry on with the case or drop it. Today what happens is that the officer within the PSU or the Government is fearful of the fact that if he decides not to litigate a matter, allegations of corruption might be raised against him. Nobody wants to take a chance, so they suggest you take a chance and litigate. As a result, huge amount of worthless litigation from the government is pending. I think independent expert groups should be available in every ministry and every public sector undertaking. The NHAI model should be followed elsewhere so that the government officers don’t have to decide the case and an independent group would decide and so there is no responsibility on the officers. It has been done in case of NHAI, I don’t see why all public sector undertakings and all ministries should not have an independent expert group..B&B: Public interest litigation – do you think it is being misused?.Mukul Mudgal: In some cases it has been misused, but largely it has done good. Of course, it has been misused sometimes by rival industries by sponsoring NGOs to block the progress of the competing industry. It has happened and will continue to happen but the courts should be, and in most cases are, intelligent enough to see through the device and take a strong view. I have done a lot of public litigation myself; so, obiviously, I will support it..B&B: You have been a litigator for a long time (25 years) and then you have been a judge. How does one make the judiciary a lot more effective?.MM: The judiciary should be given more infrastructure support. To the credit of both the Haryana and Punjab governments, they never refused funds for the improvement of judiciary. Haryana Courts are model courts, infrastructure wise. Punjab is following suit though a little slowly due to crunch of funds..Salaries have improved considerably, and I think they should improve further and more perquisites should be provided. A house is a must for judges. I think largely in Punjab and Haryana judges have got it as well as in Delhi. Judges must be free from the day-to-day worries to perform better..B&B: There has been a fair amount of debate on judges’ salaries..Mukul Mudgal: Judges obviously want more salaries and to a large extent it is justified. Today a TDSAT member is given about Rs.3 lakh per month. I don’t see why the judges shouldn’t be given that much salary but then, the TDSAT member doesn’t get the same perquisites that judges do. Though the salary may not be good, the perquisites perhaps make up for it. Above all, I think the quality of life is much better. You can regulate your time and indulge in your hobbies and interests. Some judges’ work late into the night, I didn’t..B&B: Any regrets on leaving the Bar?.Mukul Mudgal: No. I don’t regret leaving the Bar at all because I think my quality of life improved hugely. Whatever I could do for what I thought was the cause of justice; I was able to do, to my limited extent, as a judge. I have no regrets whatsoever. It came at the right time. I am very satisfied with my choice and I would recommend to all practicing lawyers to do their bit for judicial system. Good lawyers coming into judgeship will be wonderful; they will make very fine judges..B&B: Any advice for young lawyers?.Mukul Mudgal: In my time, the income of a junior was meagre. Even though I had a very generous senior who paid his juniors, most seniors did not. So, I was very fortunate but it is a struggle in the beginning and you should not look at monetary returns; that will come later. So, for the first 5-10 years you work a lot and get very little, then for next 5-10 years you work a lot and get a fairly good amount; and I suppose in next 10 years you work less and get much more..Money is always important for a youngster, one cannot belittle that. I would say people should also think about the quality of life they spend. If you are in a corporate firm, which has international clients, then the hours are absolutely killing. Consequently, the quality of life diminishes though you may get good financial returns. I don’t know but you can check out what the burn out rate is and how many people who start in big corporate firms stay on. I think the drop out rate is significant..B&B: What do you think of national law school and 5 years legal education?.Mukul Mudgal: It is good but sometimes many of them become very-very job centric. The quality of education is far superior and the talent, which goes in, is the cream. When I joined law, it wasn’t such an elite course..The advantage of 5-year course is you intensively study all the subjects; the disadvantage is you become very – very career centric and your exposure to other facets of life is very limited. I think that they lack the exposure that a graduate student gets, but they make up, perhaps, on the technical side where their training is far more intense..B&B: You have been in the profession for more than four decades, what are the changes you see in the bar and the bench?.Mukul Mudgal: The quality has improved but the yearning for money has become more and more. I think we had far more patience in the 1970s. Of course, people have economic compulsions. I was fortunate that though my family was not wealthy at all, they supported me. I was not worried about survival as I was staying in Delhi..B&B: Judicial activism. Your thoughts?.Mukul Mudgal: I am all for it. But judicial activism should be when one of three organs (now media is the 4th organ), is not performing. It is then that the court must step in. The court stepping in must be for a fixed period of time. It should not be a permanent stepping in which has unfortunately happened in case of empowered committees especially in environmental matters. Some of these committees are manned by outstanding persons but by making them the sole arbiter, some committees have had issues. I think the Supreme Court needs to rethink or change them. You can’t have permanent empowered committees. Governance must return to the government but you must keep a strict check..One of the practices of the Supreme Court I do not approve of, which Supreme Court was following previously, is that you could not file an application in a pending environment matter, if it affected you, without the consent of the amicus. Look I have been amicus in more than 50 cases and this practice gave enormous power to the amicus. The amicus may be a busy lawyer who may not have time to look into the application. If you take a mammoth task you can’t sublet it, also the court should not bar access to justice however bad the case may be..The amicus may be a good person but may not have the time or inclination to look at the application. You can’t stop access to justice. I don’t know whether this practice still exists. In my time, I did not agree with it..B&B: What are your views on death penalty?.Mukul Mudgal: I was a lawyer in the case of Bachan Singh v State of Punjab. Let me tell you the inside story of the rarest of the rare cases. Mid-way through the case, my senior Dr. Chitale told me that “only Justice Bhagwati is with us, the remaining 4 judges are against us”. So he said that “we are not going to get it struck down, so you go through all the judgments where the Supreme Court has reduced death to life, and figure out a line of reasoning from each of them.”.So, I went through all such cases, wrote down the reasoning in general terms and those are the tests found in the doctrine of rarest of rare cases; they were the submissions in the judgment in the Supreme Court. This is the inside story; and strictly speaking there has been some misinterpretation of the judgment. The Bachan Singh judgment did not say these are the rarest of the rare cases. It held that these are some of the factors, which go into determining whether death should be awarded. However, later judgments of the Supreme Court have said that these principle of the rarest of the rare cases apply. So, it was not the law laid down firmly in Bachan Singh’s case but it became a law subsequently by following of the judgment as if it laid down the circumstances of the rarest of rare cases..B&B: And your views on the death penalty itself? .Mukul Mudgal: It should not be there. It is not a deterrent. All over the developed world, the death penalty has been abolished. Please tell me, have murders decreased in this country? In this entire debate for death penalty in rapes (pauses) the emotions are understandable; the reasoning is not. I understand the emotion behind the outburst but you don’t frame laws based on one incident or two incidents. The changes in law should be thought over in a calm manner..Secondly, I am totally opposed to the reduction of age of juveniles; it is totally contrary to all civilized jurisprudence. I don’t agree with this knee jerk reaction at all..B&B: Do you think audio or video recording of court proceedings should be allowed?.Mukul Mudgal: Yes it should be allowed but it should not be freely available. Only in case of appeal if a person says that a point was argued but was not dealt with, the appellate court should be able to see whether it was dealt with and that will lead to a better judgment. It helps the judges also sometimes when you are writing the judgment and you forget some of the points. Sometimes judges get angry and say something, which they should not. I also must have done it but if I knew there is audio recording perhaps I would have been more careful..B&B: You were the Chief Justice of Punjab & Haryana. Are you in favor of the convention that a judge cannot be the chief justice of his parent high court?.Mukul Mudgal: I think it needs a re-think. This has happened because of some Chief Justices promoting their kinsmen, members of their caste etc. in various courts. The solution is to have good quality judges and good Chief Justices. I was in Punjab for one year and two months, and fortunately the social behavior in Punjab and Haryana is not very different from Delhi..Take the case of a Chief Justice who comes from Kerala to North India, for him it will be an alien life style, alien food and different social norms and by the time he adjusts he will either become isolated or dependent on some judges. It is not a good thing. If you have good quality judges, please appoint them as Chief Justices. I think, in some cases, it has not worked well..Most of them are sent as a Chief Justice for such a short time that either they retire or they are looking to go to the Supreme Court. And once you are looking to the Supreme Court, you would not like to stir the waters and you would like to play it safe. Once you play safe, progress is hindered..I would have done a lot more as Chief Justice of Delhi High Court as I knew the system. But fortunately for me I was able to do a lot in Punjab and Haryana also. I was fortunate to be part of the collegium along with Chief Justice AP Shah and Justice Madan Lokur and my collegium in Pujab included me, Justice Goel and Justice Gogoi. I was very fortunate to have been part of 2 excellent collegiums comprising of judges of outstanding ability, who only thought of the good of the institution and did not have any favorites to push. In such a system, the collegium system is very effective but not always so..B&B: What do you have to say on the retirement age of the High Court judges?.Mukul Mudgal: It should be exactly the same as Supreme Court. That will remove many of the ills of the collegium system..B&B: You did not make it to the Supreme Court?.Mukul Mudgal: There were already three judges from the Delhi High Court in the Supreme Court. I think that was the reason, as they can’t have a 4th judge from any High Court and that is fine with me..B&B: What interests you other than law and sports? .Mukul Mudgal: Classical music, sports and reading. My son heads a rock band and is a lead singer of his rock band. I am the only lawyer in the family, the first generation and perhaps the last generation.