Democratic process is followed for judge appointments since elected representatives consider names: Justice Shaji P Chaly

Elevated to the Bench after 29 years of practice as an advocate, Justice Shaji P Chaly was an active member both on the judicial as well as the administrative side of the Kerala High Court. .During his nearly eight-year long stint as a judge of the High Court and a member of its computerization committee, Justice Chaly had a front-row seat to the paradigm shift the Court went through in the recent past, effected partially by the COVID-19 pandemic.An outspoken votary for digitising the justice delivery system, even on his last day as a judge, Justice Chaly urged lawyers to harness the power of technological advancements to better address the needs of litigants who knock on the doors of justice..However, these changes were initially met with opposition, with bar associations in the State voicing their concerns loud and clear. However, Justice Chaly, who was once the President of the Kerala High Court Advocates' Association, believes that lawyers in Kerala have now adapted to the changes and are even finding the new system more comfortable and efficient.The former judge speaks about this and more in an interview with Bar & Bench's Giti Pratap..Edited excerpts follow..Giti Pratap (GP): It has been 37 years since you started your legal practice. How have the last few weeks of retirement been?.Justice Shaji P Chaly: I used to be very punctual; I would start from my house by 8:30 AM and reach the Court in five minutes. On the first day, it was a little bit difficult. I thought that I should break that punctuality first. So I went for exercise and took my breakfast a little late, etc, to get over that. In the afternoons, I was finding a little bit of uncertainty. It is a natural feeling. To get over that, I come here and read. I read journals and law books..GP: So you are still keeping in touch with the legal field..Justice Chaly: Definitely. It is very interesting. Everyday there will be something interesting, some new judgments will be there from the Supreme Court and various High Courts..GP: From what I gather, you come from a completely non-legal background. Growing up, was law always the goal or did you have any other aspirations?.Justice Chaly: Law was my dream. Somehow or the other, I developed this passion. I got admission for post graduation in Maharaja's College in 1982. That year, admission to law colleges started only in December 1982. So till then, I was doing my post graduation but I discontinued that and joined the law course..GP: At the farewell reference held in your honour, Advocate General Gopalakrishna Kurup K said, "the path to success is twice as hard for a first generation lawyer". Was this the case for you? Did you ever feel like the lack of a legal background held you back?.Justice Chaly: No, never. I did my entire education in government schools. Even when I became a lawyer, I used to go and talk to even the oldest lawyer in the High Court. Very senior lawyers like Easwara Iyer were practicing then. It was a habit for the young lawyers to go to senior lawyers, meet them and talk to them. They would tell you how to present in court. If they had seen you performing in court, they would tell you the drawbacks..GP: You were elevated as a judge in 2015. What made you answer the call to judgeship? Did you always aspire to be a judge?.Justice Chaly: In 2008, my biodata was taken, but it was considered along with others. Later, when Justice Ashok Bhushan was the Acting Chief Justice here, he invited me to join the Bench and got the biodata. I cannot say that I was not inclined to be a judge. Anybody in the profession who wants to serve the State or the nation would like to become a judge. Advocacy is very different, you can argue any point. Being a judge means that you have to confine yourself to the law on the point. .GP: Speaking of judicial appointments, what are your thoughts on the Collegium system? Do you think it breeds nepotism in the judiciary?.Justice Chaly: No, you cannot say that anybody, the government or parliament is overlooked when judges are appointed. That is not correct because a clear selection procedure is adopted. First, the Chief Justice sends it to the State government which passes it on to the Governor who then sends it forward. It is considered by the Supreme Court and then the Central government also considers it. They are considering these names as elected representatives of the people. If they object to any of the names, their objections will be considered. There is a clear-cut procedure made by the Supreme Court in that regard. The people's elected representatives, the elected body is considering these names. So you cannot say that a democratic process is not followed..GP: There is also the criticism that the Central government is sitting on recommendations and that they are selectively approving names for elevation and transfer. What is your take on this?.Justice Chaly: When the Supreme Court sends recommendations to the government and then when the government takes a decision on that, they (the Central government) may be having their own procedure. Whether there are any drawbacks for any particular individual, that is their lookout, they have their own machinery to do that. I don't know if any selective method is done by them to eliminate people on the basis of something else..GP: At the High Court, you were a very active member of the computerisation committee during the pandemic period, when courts were forced to move to the virtual space. Could you talk us through that experience?.Justice Chaly: The computerisation committee was already there in the High Court but I was not a member until 2018, when Justice Hrishikesh Roy, who was then the Chief Justice, made me a part of it. Very passionate people were in the committee such as Justice AK Jayasankaran Nambiar, Justice Muhamed Mustaque and Justice Raja Vijayaraghavan. Justice Raja is a technocrat also, he is basically an engineer. After I joined in 2018, we started thinking of making modules and we started doing that, creating the fundamentals..During the pandemic, it was easy for us to start everything online. It took only 3 or 4 days. Online courts and video conferencing started in 3-4 days. Kerala must have been one of the first High Courts to start online courts. It was easy because the foundation was already there. Initially, the lawyers were apprehensive of whether they would be able to participate in these online proceedings. But later, they also realised that it is easy and convenient for them to sit in an office room and do this instead of coming to the court. Now, everyone has adapted to this system, even very old lawyers are finding it very convenient. .GP: According to you, what are some of the main benefits and drawbacks of digitising courts?.Justice Chaly: The benefit is that anybody can participate in the proceedings. Anybody can enter, be it clients or newspapers, they can enter and find out what is happening in the court. People just read newspapers and arrive at conclusions. Or they see some movies and they think this is how the court works. That is not the reality, it is very artificial. You cannot know what is happening in the courts just by reading newspapers. Here, they can find out how the cases are decided, that reference to law should be there. When a sensational case comes, people will be thinking it should go in one manner. But now, people can see how the court deals with it, how it deals with various situations, how it follows procedure and how it arrives at the conclusions..GP: In your opinion, does live streaming aid in judicial accountability or does it hamper the smooth functioning of courts?.Justice Chaly: No, nothing like that. Kerala High Court is on hybrid mode. The Chief Justice of India has directed to make it hybrid. The government has spent huge amounts. We have to utilize it. It is comfortable and clients and the public can see how the lawyers perform. Transparency is there. There is no disruption at all. I used to hear cases on hybrid mode. Lawyers used to appear from all places..GP: With social media and live streaming, even off-the-cuff remarks of judges get widely reported and critiqued on social media. What is your take on this?.Justice Chaly: This happens because judges are not always aware that there is live-streaming or that they are being recorded. In time, judges will realise that we may have to restrain ourselves from making any comments. But it is better that we do it. People may take it in a different manner, media may take it a different manner, but that is how we open up a conversation with the members of the Bar. We may say something, but if we take that sentence and those words alone, one may wonder what is this man doing there. They may think it is something entirely unconnected with the law. But you have to open up a conversation with lawyers. Lawyers may say something, and to bring out the truth, we may ask many questions. But that question may have a different impact if you take it individually. You'll have to take into account the entire scenario. But when people read it, they have a different picture about it, which is not the reality..GP: Apart from digitising the High Court, there has also been a significant effort to digitise district courts as well. What were some of the challenges posed by the fact that not all district courts are in the bigger, better connected cities?.Justice Chaly: There were problems of basic infrastructure, but we could get over that. Now funds are allotted by the Supreme Court to perfect the infrastructure by improving connectivity, having dedicated power supply, installing additional generators, etc. Now, it is gaining very good momentum. The Chief justice and the computerisation committee have directed district courts also to keep it (online courts) open. Roll calls, which is a time-consuming process as far as the district judiciary is concerned, especially when there are 150-200 cases to call each day, can now be done online. Lawyers don't have to go to court to do this. The courtrooms are also very small, so this is a method to get over that as well..GP: Over the last 37 years, how have you seen the legal profession in general evolve?.Justice Chaly: This is a very interesting profession. Everyday you find something new. As a first generation lawyer, initially you may find it difficult to find out the law involved. But what I used to do whenever a case came to me is that I used to refer the bare acts and provisions first and then start preparing. You cannot look at law like you would a story book. Whenever you get a case, you get adapted to it. That was my approach. In two or three years, you start getting work and you find it difficult to adjust the time. As I said earlier, when we came to court, we used to go and meet senior lawyers and talk to them. I think that is absent now. Whenever a senior lawyer is standing behind you, we would give them the seat. That is absent now I feel. I am not finding fault with these people, many things change as time changes..GP: Do you have any words of advice for young lawyers?.Justcie Chaly: There are very good young lawyers, lady lawyers. The problem I feel is that instead of finding out the provisions of law first, they will find out the proposition of law first from judgments of the Supreme Court and High Court. Many a time, they end up missing the facts related to the case and they will rely upon these judgments. That is not the correct approach. First, you have to find the law involved and then you have to look at the facts involved and whether they would fit into the judgment you are referring to..GP: Now that you have retired from service as a judge, what are your thoughts on judges taking up post-retirement jobs?.Justice Chaly: I am not against it for the basic reason that judges know the method of adjudication very well, to follow the basic principles, etc. If judges are eliminated from that process, the adjudication at these posts such as Human Rights Commission, Lok Ayukta, etc may not be that correct. Through their vast experience, judges know how to tackle cases, how to deal with particular factual situations, especially sensitive situations, and how to apply the law. This will be totally absent if judges don't take up those jobs. There is nothing wrong with it, but people will say many things. I don't think that is correct. Many people were saying after retirement that the government has made me a commission member. Nobody asked me. These are all fake news. .GP: What is next for Justice Chaly? Can we expect to see you back in the courts?.Justice Chaly: I plan to do that. I plan to go to Delhi and make an attempt to practice there. It is tough process, because you are as good a beginner lawyer then. But I want to try it and see if there is some spark left.