We can do better justice by concentrating on the matter rather than wasting time on oral observations: Justice RD Dhanuka

Justice Ramesh Dhanuka was elevated as Chief Justice of the Bombay High Court only three days prior to his retirement on May 30 this year. In fact, he had the shortest term as the High Court's Chief Justice..As a judge, he has served for more than a decade and has decided over 21,000 cases..In this interview with Bar & Bench's Narsi Benwal, Justice Dhanuka reflects on his journey from lawyer to judge, oral observations made by judges, the system of judicial appointments, online abuse against judges and more..Edited excerpts follow..Narsi Benwal (NB): What prompted you to take up law?.Justice R Dhanuka (RD): My father was in the legal profession for more than 50 years. He became a judge in 1990 and retired in March 1996. I was the first in our family, after my father, who joined a law college and followed in the same footsteps. I saw my father's progress, what he has done in the last so many years in public service, helping the litigants. That was one of the interests I developed through him - that I should also join the legal profession and if the occasion arises and the opportunity comes, then I will also accept judgeship..NB: After enrolling as an advocate, you joined your father's chamber. What was it like working under your father? Were you given any special treatment?.RD: My experience was very good but there was a vast gap between me and him. He was already a Senior Advocate by then. And I had just joined, so, I got lots of his guidance and support. I used to observe how to take instructions, how to draft petitions. I was also advised by him to visit various courts and see how advocates argue, how judges raise queries, how you deal with those queries. I was also sent to various departments of the High Court with my father's clerk to find out how the department works because you can't start arguing immediately after obtaining a certificate of practice.He used to be engaged in very heavy matters. I used to assist him wherever possible. Otherwise, I was asked to have my independent practice, because he would not recommend my name as a second counsel to favour me. He was always of the view that I should become an advocate independently on my own merit. I was treated as a normal junior. My father must have had more than 25 juniors by that time. So, myself and my wife, we were the last juniors in his chamber before he became a judge. My father was a hard taskmaster. There was no question of any special treatment..NB: During the initial years of practice, juniors say that it is not easy to get opportunities to work under lawyers for good pay, etc. What's your view?.RD: It is not like that. So many solicitor firms are there. So many senior advocates are there, advocates having standing of 10 to 15 years, they require juniors. It is not necessary that you should have a godfather. You may be a first-generation lawyer. It may take some time. You must be very active in your law colleges. Then it is quite possible that from the initial few months, you can start getting briefs. But that also depends on whose chamber you are in, how many opportunities you get from your senior or your colleagues. And making money - this is a paying profession, let me tell you. So, you may get small briefs, you may get big briefs - that always depends on how you show your calibre, how hardworking you are. Because every client that comes to you will expect that you will fight for him economically and try to get him justice. So, it's not as difficult. I don't blame anybody, but what I was taught by my senior was don't compare yourself with anybody else. You say that I am only getting 10,000 rupees per day and another advocate who joined the legal profession at the same time may say he is earning ₹2 lakh, that he has an imported car, he has a big office, he is in the chamber of a senior advocate. Comparison will not do. Better you do your job with your hard work and try to do your best for your client. Don't mislead anybody, do hard work and be humble and honest. One satisfied client will bring you ten other clients and one dissatisfied client will take away a hundred clients..NB: How did you go on to become a judge?.RD: I was called by Justice Swatanter Kumar. He was our Chief Justice then. When he called me for interaction, I disclosed my age. That time, I was not 50 years, I was 47 or 48. I was told that at that time, the age of 50 years was necessary. And I was asked to wait for some time. Then, in 2011, Justice Mohit Shah, who was then the Chief Justice, called me for interaction. And then I accepted. Some of our sitting judges who had seen my performance also must have recommended my name. The Collegium approved and recommended my name. Thereafter, it took around 8 to 9 months to get it cleared by the government. I think some 11 names were sent and only 5 were cleared..NB: Judging by your example, the government has always been slow to approve the Collegium's recommendations..RD: That is not my personal view. I must be very clear about it. Sometimes it is early, sometimes it takes some time because they also have to undergo a procedure. Some mechanism, I believe, should be there, because waiting for an indefinite period causes a lot of concern. The candidates whose names are recommended by the Supreme Court Collegium face uncertainty on whether it will go through. As soon as your name is recommended, people come to know. Then if it remains pending for quite some time, nobody knows for what reason it is pending. Then people start talking about you, that this must be the reason, that must be the reason. So that is a little uncomfortable, according to me. There must be some timeline. In the last year, I have read so many orders of the Supreme Court, particularly from the Bench of Justice Sanjay Kishan Kaul and Justice Abhay Oka. Various directions were issued for the government to expedite appointments. There should be some streamlining mechanism so that timely appointments are made, so that candidates whose names are recommended know what is the effect of their applications. For service judges, it does not make much difference, but for practicing lawyers, it affects your practice. You don't know whether your name will go through or not. So, you are wondering when to wind up, how many more matters to take, whether briefing lawyers may brief you, etc..NB: How was your experience of being a judge for 11 years?.RD: It was really wonderful. My first sitting was with (former Chief Justice of India) Justice Sharad Bobde on January 23, 2012. And I was given very good tips by Justice Bobde - how to ask questions, when to ask questions. You have to consult your senior judge before you ask questions. What I was told is that the minds of both judges should be on the same page, so that there is no conflict of opinion from day one. You share your views with the senior judge. If we are on the same page, he will guide you, go ahead, ask questions. As a junior judge, I got lots of opportunities from all my senior judges. Justice Bobde, within 2 or 3 days of my appointment, asked me to write a judgment. So, I started reading some law reports, how to formulate the facts, the submissions made by the lawyers and then how to conclude. A few more suggestions were given after considering my draft, on what changes should be incorporated in my draft. Justice Dhananjay Chandrachud, I must specifically mention. I was given lots of opportunities by him. When I was dictating some orders, draft orders were prepared by me. Justice Chandrachud was so polite and kind to me. He would ask me, 'Ramesh. if you don't mind, may I make a few corrections in your draft?' I was so happy that a senior judge like him would ask me so politely instead of throwing away my draft. I requested him to correct them and kept those corrected drafts as precedents in a separate file so that when I wrote the next judgment, I would go through that file. In fact, I referred to them even till the last day of my career. There was a vast difference between the knowledge and experience of Justice Chandrachud and me at that time..NB: What was it like working with Justice Chandrachud?.RD: He was my elder brother, but he always treated me as a friend. Though there was a vast difference, he never gave me the impression that I am a junior and that I can't participate. From day one, he allowed me to participate. In fact, once we both were hearing a very heavy matter where Senior Advocate Fali Nariman was appearing for one of the parties and some other leading senior advocates were appearing on the other side. I used to read most of the briefs in advance. I had a query about the matter at hand. I asked Justice Chandrachud something about one of Mr. Nariman's arguments. He said, 'You ask this question to Mr. Nariman'. I got a little frightened at first, that he being such a top lawyer and me as a junior judge, if I make any mistake, he will ask a question. But Justice Chandrachud said, 'No, no, you have to ask.' Before I could say something, he told Mr. Nariman, 'My brother just wants to ask you some question.' Even for asking that question, 3-4 times I wrote it in my notebook. Then I formulated that question and asked it. Mr. Nariman was so happy. He said, 'Yes, yes, I am bound to reply to the queries of the learned judge. I am so happy that he is asking me questions.' I was thrilled with that answer..NB: Judges have often been criticised for making unnecessary observations during hearings. How do you see this?.RD: I believe that whatever issue is at hand, you must deal with it thoroughly. Oral observations won’t make a difference. They will not become precedents. If you dispose of your matter, then you can focus on the others. Oral observations in open court, criticising someone unnecessarily, should be avoided. Because of the time constraint, we have enough work to do. We can do better justice by concentrating on the matter before us rather than wasting time on making observations orally..NB: Speaking about observations in open court, you had once said something about the burden on judges and the piling backlog. How do you think this burden can be reduced?.RD: My first suggestion is that the strength must be increased. Competent persons must be appointed. Of course, those appointed are competent. Thirdly, judges who are comfortable with a particular subject - their talents must be used for better disposal. Experiments like commercial law given to those comfortable with criminal law are necessary at some stage, but not always. Next, I think the remuneration or salaries must be hiked. The amounts paid to advocates, if compared with our salaries, ours is nothing. But for me, this amount was sufficient and I think if you have a simple living and a small family...but for others this amount might be too less. Further, I think the existing infrastructure needs to be improved. Most important is there must be some check on frivolous matters. Advocates must help us in this. Before us, they are the judges of the matter and they know the truth. So, they must avoid filing frivolous litigation..NB: We have seen advocates kill time by making repeated arguments or seeking unnecessary adjournments. Some judges turn up late to court. Do you think live-streaming will make lawyers and judges more conscious of the court's time and make proceedings productive?.RD: Live-streaming was discussed on a number of occasions and there is a mixed response. Video clips from YouTube are shown wherein only certain parts of a day's proceedings are shown or are viral, wherein someone is speaking to a judge in a disrespectful way. Also, an advocate sometimes has to concede that they are unable to make a statement and they leave it to the court. But because of live-streaming, they would not be able to concede and they will have to argue because if they concede, there would be some misinterpretation of the client and a complaint might be filed. However, I believe live-streaming will help cut short the arguments of advocates and unnecessary wasting of time. It is one part, but it shouldn’t be allowed to be circulated or recorded. Even during the COVID-19 period, despite a warning, people recorded VC hearings..NB: On the topic of frivolous matters, do you think that of late, the Bombay High Court has become a battleground for politicians to settle their scores with opponents?.RD: No, I don’t think that our High Court is becoming a battleground for politicians. It is only that these matters are highlighted by the media. The courts are there to adjudicate the merits and demerits of a case and if there is a frivolous matter, hefty costs are imposed. The problem is there is no check on filing of such cases..NB: There are also numerous PILs being filed by so-called social activists and even by politicians. Your views on this?.RD: In most such PILs, the courts ask the petitioners to deposit some money. Most of them fail to deposit money and their matters are dismissed. As a check, it must be a rule itself that if anyone wants to file a PIL, they will have to take prior permission from the court and the court will decide if there is any prima facie cause or not and only then they must be allowed to file PILs..NB: Judges these days are often subjected to criticism and trolling on social media for their oral observations, judgments, speech etc. Should they be afforded some protection from online trolling?.RD: Protection of judges should be there from such trolling. In fact, our fraternity itself must protect our sisters and brothers. But for every matter, there cannot be any action of contempt, otherwise half the time, the courts' time, would be wasted on initiating contempt proceedings. We usually ignore such criticism 99 per cent of the time. One should understand that often, the losing party and disgruntled persons indulge in cheap publicity stunts. If we are disturbed by such trolling, we won’t be able to do our duty. We cannot be touchy like this.But again, it is a matter of perception. If one particular judgment is delivered in a manner by the High Court, the Supreme Court is there to correct it. Even judges are humans. Nobody can criticise like this, otherwise we won’t be able to work. We have to deal with so many cases daily. It should not be like no judge would dare to pass any order and if you pass it you will be subjected to criticism. I think some preventive action is needed as no judge is given any opportunity to explain what they think etc. Thus, we can only ignore all this criticism..NB: Criticism these days is not only for judgments, but even when an advocate is appointed as a judge, people allege nepotism. Do you think nepotism exists in the process of judicial appointments?.RD: People may talk anything, but there is a procedure for an advocate to be appointed as a judge. The Collegium conducts an independent inquiry before recommending any name. It finds out even through consultee judges and so many other people for one single person's recommendation and considers so many aspects in each case. Nepotism is not there as one cannot say that people are appointed only from judges’ families or senior advocates’ families. A recommendation does not come from all this, there is proper scrutiny. Thus, the opinion of the public needs to be changed. And one most important thing is, people should understand that whether it is an advocate or a doctor or any other profession, a child follows the steps of their father and mother. In the last five years, there are so many first-generation lawyers who were made judges. It is not as if only people from judges’ or senior advocates’ families are appointed. Of course, they will have a better experience, yet everyone suitable is appointed. Kith and kin aren't recommended merely because they come from a family. They have to prove their own calibre and talent and they have to be independent. Also, there is no prohibition that only one person from the judges' family must be appointed. I personally feel that one must see the sacrifice that more than one person in a family is making by giving up their large practice for national service..NB: There have been debates on the suitability of the Collegium system of late. What are your views?.RD: No system is perfect. It requires some modifications considering the demand. But I am not in favour of removing this system. In High Court Collegiums, there are senior judges who know all the advocates and thus there is a balance. By and large, I don’t find any problem with the Collegium system and I firmly believe this system should continue..NB: Your recommendation to be elevated as Chief Justice of the Bombay High Court was issued on April 19 and yet the government approved it only three days before your retirement. What would you like to say on this?.RD: Justice DY Chandrachud reposed faith in me and recommended my name. I had left it to destiny. A large number of people prayed for me and I became Chief Justice for two or three days. For me, the fact that I became the CJ matters and that was also my father's dream. But as far as my behaviour, conduct etc. is concerned, that did not change. I sat for two days as CJ. For me, it was an opportunity to serve Court. But the question of one day, one month or one year doesn’t make any difference. I have no heartburn about this. Whether it could have been done earlier, I don’t want to comment.My friends and well-wishers had this view that it should have been done earlier, but I can’t join them in this belief. There is some anxiety about the candidate's name if recommended. There is some uncertainty and thus such decisions must be taken expeditiously. My relatives, who were not familiar with the procedure, thought once recommended, it would mean I was appointed, and they started calling me saying why they were not invited for my oath taking, etc. I accepted this three-day tenure with a smile, but my status as a judge was intact. What I wanted to do for our nation, I did that and I am satisfied with my service..NB: The fact that courts take such long vacations is often criticised. What do you want to say on this?.RD: We are all overburdened. As a layman, one would get the impression that we are working only as per the court hours. But our work starts early in the morning. We have to read case papers, come to court and attend hearings, dictate judgments and after court hours, we sit in our chambers beyond 9 pm sometimes. Even on weekends, we are doing our dictation and other table work. And during vacations, only for 10 days or a week we go on leave, and then the remaining days, we keep working. We are not even taking care of our health. Some judges suffer from diabetes, back problems, blood pressure, etc. Still, we sacrifice our health and keep working. So, there are no vacations as such. And it is not that there is no judge available as even during vacations, we have vacation courts for the public..NB: There have been instances of judges becoming Governors or MPs post-retirement. What is your view on this?.RD: First of all, age of retirement must be increased. In so many countries, 62 is not the age of retirement. By the time you become seasoned and you have vast experience, you get retired. Nobody will have an expectation that I will get some government job or not. All judges, even if they are offered, would not accept it as they have some better work to do like arbitration, chamber practice, etc. For those who do not get such better opportunities, there might be some expectation from somebody. The only condition must be that nobody should say that you have stopped deciding against the government, because if you stop deciding against the government, you get some jobs. People are bound to criticise. Thus, a judge has to do his duty till the last date of his service. Posts of Governor or MP, I personally say, must not be accepted. But if there are posts to head some tribunals etc, you can accept. No judge should accept such Governor posts. Then there is more linkage and you are bound to invite allegations from the members of the public.