After a brief tenure as Chief Justice of the Himachal Pradesh High Court, Justice Rajiv Shakdher is set to return to practice before the Supreme Court..In fact, he was once touted to be on the Supreme Court bench, but fate had other plans. A judge known for passing judgments without fear or favour, his reward was "unhappy" transfers from one High Court to another.He was transferred to the Madras High Court in 2016, where he served until January 2018, before being transferred back to Delhi High Court.After a prolonged delay, he was appointed as Chief Justice of the Himachal Pradesh High Court on September 21 this year, before demitting office on October 18..But far from complaining about how he was treated, he says that judges are only foot soldiers who march when asked and come back when told to.In this interview with Bar & Bench's Debayan Roy, Justice Shakdher talks about his career, the system of judicial appointments and transfers, and more..Edited excerpts follow..Debayan Roy (DR): Do you think you have accomplished all that you set out to do in your 16 years as a judge?Justice Rajiv Shakdher: When I was invited to the Bench, it was not as if I had a mission in mind; I evolved as a judge. Whatever I have done is for lawyers, litigants and academic scholars to evaluate. Whether I have or have not accomplished is actually their call..DR: In your farewell speech, you said that even though you come from an entitled background, it was difficult for you to break into the legal profession and several others are not as lucky as you..Justice Rajiv Shakdher: What I did say was there are some who are entitled and I thought I fell into that category. Why did I say that? I had a roof over my head, I had a good education. My parents were not affluent as is understood ordinarily, they came from a service background. My mother was a principal of a school, my father was in the private service. Members of my family were in the bureaucracy. So to that extent, I was entitled, if you can call it that. There are others who do not even have this. I know of youngsters coming from far off (to Delhi), trying to make a life for themselves in this profession. So, it is difficult for them when you do not know anyone. I did not have any godfather in the profession. And when I entered the profession, I had qualified as a chartered accountant, so therefore I thought I was reasonably qualified to at least make a cut into a good chamber. But then I found it difficult. I went from one Solicitor firm to another, to senior lawyers' chambers, and everyone would meet me and say yes come back a month later, a week later, and it did not fructify.It gave me a sense of disillusionment at that juncture. But finally, I got into a good chamber in a sense. I was made to interact with Mr Soli Sorabjee and when he found out that I was a chartered accountant, he sent me to one of his best juniors, which was Mr Harish Salve. And mind you, at that time, Mr Salve was himself not a designated senior. And it turned out to be a fruitful stay in that chamber. I picked (up) a lot by just watching him, and as he grew in the profession. My association with him was I think about three years or so, but it was fruitful..DR: You had quite a thriving practice at the time you were elevated. What was that key factor that convinced you to accept judgeship? And what deters some of the best legal minds from joining the Bench?.Justice Rajiv Shakdher: Getting into a good chamber is tough, as I just explained to you. I got a recommendation letter from no less than Mr J.B. Dadachandji. I still had difficulty, but fortuitously I was made to join Mr Salve. I learnt my skills about analysis, court craft by watching him. The advantage of entering his chamber at that stage was he would go from court to court - Income Tax Appellate Tribunal, Supreme Court and High Court. And when he could not make reach one, he would give us the opportunity to argue, which is rare. So I did get lucky.When I was called by the then Chief Justice and I was informed by other senior judges that I would be invited to give my consent (for judgeship), I was already designated Senior Advocate and I had a three-year run which was by all counts a wonderful experience. Both in terms of the kind of work I did and, of course, the remuneration that comes with that kind of work (smiles).It could only have got better, correct? As you go on in the profession. But I was exposed to an environment when (if) the Chief Justice of the Court asks you to join the Bench, you ordinarily do not say no because it is an honour conferred on you. There are always several others ready and willing to do that. If they thought it fit to ask you or the seniors asked you to join the Bench, then you should have very good reasons to refuse that. It is a service to the nation, to the country, to the litigants, and it is my belief that if people do not get into the system, then it suffers overall.The other part of your question as to why the best legal minds have not joined the profession - my answer is two-fold.One, there have been some lateral entries in the Supreme Court and all of them had enormous practice, but when they were called upon to join the Bench, they did. As to ones who were perhaps asked and did not join, all of them may have had their own reasons, it is really for them to answer. I told you why I joined. I have always believed that good lawyers should join the Bench even if for a short period after they have had a financially sound practice and then give their best to the system.Second, it is like having a Short Service Commission. It is an experiment I think the policy makers should take ahead, because then you are free of all anxieties also, because you are financially comfortable, you come and give it your best and then you come back again. The response that I got when I articulated this was that you cannot appear in the same High Court (after retirement). If you are good, you can appear in other High Courts and do well. In Delhi, I do not see reasons for lawyers not to accept. Because you have the Supreme Court here, where you can practice..DR: The Bar at the Madras High Court described your transfer back to Delhi as a "big loss" despite a short tenure. How was you time there as a judge? What were some of the cultural differences you saw in Chennai lawyers compared to the Delhi bar?.Justice Rajiv Shakdher: So to answer the first part of your question. When I went there...DR: You were not happy?Justice Rajiv Shakdher: Obviously, I was going on a transfer, I was not happy. But to my utter surprise, I was received so warmly. You were right when you say it was a short tenure, it was only 20 months. The kind of reception I got both inside and outside the Court was outstanding. Frankly, I loved each one of those guys and I got love and affection in equal measure if not (more)...Had it not been for my family and my children who were very young, maybe I would have continued there. But then again, these are things that you do not decide..You are like a foot soldier in the legal system. If you are told to march, you march. If you are told to come back, you come back. Justice Rajiv Shakdher.DR: How fair is that?Justice Rajiv Shakdher: That is the way it is. We must take the good with the bad.DR: You do not wish it changes?Justice Rajiv Shakdher: These are things if the policy makers have to look at, they will look at. I can only speak for myself. When I was put in that position, I took it on, when I was told to march I did, and when told to come back, I did.DR: What is your take on opting out of judgeship midway? There have been several instances.Justice Rajiv Shakdher: As a judge, opting out in the middle is like giving up on something midway. There are people who have expectations of you, you are a judge anywhere you sit. And, if you decide to do the right thing, you can do it from everywhere. So what difference does it make if I am in Delhi or Madras? If I had resigned or if people resign, you are taking the easy way. If you are very troubled, I can understand, it is a personal call. As I look at it, once you raise your hand, you go the entire way. If you opt out, it is not about you but the civil society and the nation. You cannot make it about yourself. Like the men in uniform, you are also people in service..DR: You had recently stated that "judges have no agenda, their duties and powers are delineated by the Constitution. Judges have no ideology." But this doesn't seem to be the case, given how some courts decide cases.Justice Rajiv Shakdher: See when I said that, I said it because I believed in it. And it is not really for me to comment on whether someone who believes otherwise. It is my belief, it is what I was brought up with. And, each has his own..DR: As a High Court judge, I am sure you have gone through several judgments by other courts while deciding a case, putting a (particular) point forward. Do you still think that is the case?.Justice Rajiv Shakdher: See that is the beauty of the job. If you think a view taken by another court does not align with your view, but you have the space in law or in the Constitution to navigate around it, you should do it. That is what I did. Unless it is a judgment of a superior court that is binding. You do what you do best, that is stick to the Constitution and the law. One of the hallmarks of a great judicial system is neutrality. When I say judges do not have ideology, I meant exactly that. When you look at someone's journey through law, whether he was neutral all along (or not), do not just go by his last judgment, because that will be on a particular set of facts. Look at his journey throughout, perhaps then you may come to a more fair conclusion about what the judge was all about..DR: Justice KV Viswanathan in a recent judgment said that this is a democracy of perceptions. There have been so many cases in the Supreme Court, and High Courts too, where lawyers in sensitive matters have tried not to argue before a particular bench because they think the judges will not be fair. How do you see this?.Justice Rajiv Shakdher: You know the best way I can answer this, having been a sportsman, especially a cricketer. As a team, you do not decide which pitch you play on; once you get one, you must play the match. The matter will get decided, you do your bit, which is represent your client fairly, robustly. And it is for the adjudicator, that is for the umpire, to decide. And at the end of the day, as I have said before, people evaluate, analyse, and legal scholars will decide what you did while you were there. So it is not really for the lawyers to, based on a perception, or call it pattern, decide whether they would or would not want to [argue before a judge].DR: Is it not fair to judge a judge?Justice Rajiv Shakdher: That in any case you do. It would be utopian to think lawyers are not judging judges. Senior Advocates are like generals in a war who decide whether or not to do something, but according to me, why avoid batting on the pitch if you get one to bat on? It is set out and fixed, play it. In a sense, that challenges the umpire also. Yes, if people had not argued matters before me based on some perception that it is not the court where they should argue, I would not have gotten the opportunity to say what I had to. Fortunately, I never had to face it. .DR: Which is the more appropriate system for appointment of judges - the NJAC or the Collegium?.Justice Rajiv Shakdher - See there are two views about it. There is a view that the Collegium system, whatever its faults, works better, like with democracy how it persists. The other is those who say that NJAC is a better system. Most of them concede that it did require a certain amount of modulation. That model has never come up before the Court for consideration. If it did, maybe it would take a different view. I think the jury is still out - if it is worked upon, we could get that system with some modulation. These are issues on which the policymakers have to take a call, but if they do, they have to keep in mind what votaries of the NJAC say that it needs modulation..DR: Any decisions of the Supreme Court from the last decade that you think you would have decided differently?.Justice Rajiv Shakdher: I do not want to theorise, I was not there. Unless you have full insight into what the matter is about...judgments only represent a part of what was argued, what was then appreciated and then translated into a conclusion. Especially in an adversarial system, when you are sitting as a judge, it is important to appreciate them as they happen. Someone who reads a judgment later on may think that they would have come to a different conclusion. It is when you are sitting on the hot seat and deciding the matter that you can reach a conclusion. Whatever conclusions you arrive at, it is fair for people to arrive at different ones, for scholars and even litigants. That is something a judge lives with, so I cannot say I would have come to a different conclusion, because I was not living that case. It is very easy for people to say so. But they do not know what is the full scale of the arguments..Part II coming up shortly.
After a brief tenure as Chief Justice of the Himachal Pradesh High Court, Justice Rajiv Shakdher is set to return to practice before the Supreme Court..In fact, he was once touted to be on the Supreme Court bench, but fate had other plans. A judge known for passing judgments without fear or favour, his reward was "unhappy" transfers from one High Court to another.He was transferred to the Madras High Court in 2016, where he served until January 2018, before being transferred back to Delhi High Court.After a prolonged delay, he was appointed as Chief Justice of the Himachal Pradesh High Court on September 21 this year, before demitting office on October 18..But far from complaining about how he was treated, he says that judges are only foot soldiers who march when asked and come back when told to.In this interview with Bar & Bench's Debayan Roy, Justice Shakdher talks about his career, the system of judicial appointments and transfers, and more..Edited excerpts follow..Debayan Roy (DR): Do you think you have accomplished all that you set out to do in your 16 years as a judge?Justice Rajiv Shakdher: When I was invited to the Bench, it was not as if I had a mission in mind; I evolved as a judge. Whatever I have done is for lawyers, litigants and academic scholars to evaluate. Whether I have or have not accomplished is actually their call..DR: In your farewell speech, you said that even though you come from an entitled background, it was difficult for you to break into the legal profession and several others are not as lucky as you..Justice Rajiv Shakdher: What I did say was there are some who are entitled and I thought I fell into that category. Why did I say that? I had a roof over my head, I had a good education. My parents were not affluent as is understood ordinarily, they came from a service background. My mother was a principal of a school, my father was in the private service. Members of my family were in the bureaucracy. So to that extent, I was entitled, if you can call it that. There are others who do not even have this. I know of youngsters coming from far off (to Delhi), trying to make a life for themselves in this profession. So, it is difficult for them when you do not know anyone. I did not have any godfather in the profession. And when I entered the profession, I had qualified as a chartered accountant, so therefore I thought I was reasonably qualified to at least make a cut into a good chamber. But then I found it difficult. I went from one Solicitor firm to another, to senior lawyers' chambers, and everyone would meet me and say yes come back a month later, a week later, and it did not fructify.It gave me a sense of disillusionment at that juncture. But finally, I got into a good chamber in a sense. I was made to interact with Mr Soli Sorabjee and when he found out that I was a chartered accountant, he sent me to one of his best juniors, which was Mr Harish Salve. And mind you, at that time, Mr Salve was himself not a designated senior. And it turned out to be a fruitful stay in that chamber. I picked (up) a lot by just watching him, and as he grew in the profession. My association with him was I think about three years or so, but it was fruitful..DR: You had quite a thriving practice at the time you were elevated. What was that key factor that convinced you to accept judgeship? And what deters some of the best legal minds from joining the Bench?.Justice Rajiv Shakdher: Getting into a good chamber is tough, as I just explained to you. I got a recommendation letter from no less than Mr J.B. Dadachandji. I still had difficulty, but fortuitously I was made to join Mr Salve. I learnt my skills about analysis, court craft by watching him. The advantage of entering his chamber at that stage was he would go from court to court - Income Tax Appellate Tribunal, Supreme Court and High Court. And when he could not make reach one, he would give us the opportunity to argue, which is rare. So I did get lucky.When I was called by the then Chief Justice and I was informed by other senior judges that I would be invited to give my consent (for judgeship), I was already designated Senior Advocate and I had a three-year run which was by all counts a wonderful experience. Both in terms of the kind of work I did and, of course, the remuneration that comes with that kind of work (smiles).It could only have got better, correct? As you go on in the profession. But I was exposed to an environment when (if) the Chief Justice of the Court asks you to join the Bench, you ordinarily do not say no because it is an honour conferred on you. There are always several others ready and willing to do that. If they thought it fit to ask you or the seniors asked you to join the Bench, then you should have very good reasons to refuse that. It is a service to the nation, to the country, to the litigants, and it is my belief that if people do not get into the system, then it suffers overall.The other part of your question as to why the best legal minds have not joined the profession - my answer is two-fold.One, there have been some lateral entries in the Supreme Court and all of them had enormous practice, but when they were called upon to join the Bench, they did. As to ones who were perhaps asked and did not join, all of them may have had their own reasons, it is really for them to answer. I told you why I joined. I have always believed that good lawyers should join the Bench even if for a short period after they have had a financially sound practice and then give their best to the system.Second, it is like having a Short Service Commission. It is an experiment I think the policy makers should take ahead, because then you are free of all anxieties also, because you are financially comfortable, you come and give it your best and then you come back again. The response that I got when I articulated this was that you cannot appear in the same High Court (after retirement). If you are good, you can appear in other High Courts and do well. In Delhi, I do not see reasons for lawyers not to accept. Because you have the Supreme Court here, where you can practice..DR: The Bar at the Madras High Court described your transfer back to Delhi as a "big loss" despite a short tenure. How was you time there as a judge? What were some of the cultural differences you saw in Chennai lawyers compared to the Delhi bar?.Justice Rajiv Shakdher: So to answer the first part of your question. When I went there...DR: You were not happy?Justice Rajiv Shakdher: Obviously, I was going on a transfer, I was not happy. But to my utter surprise, I was received so warmly. You were right when you say it was a short tenure, it was only 20 months. The kind of reception I got both inside and outside the Court was outstanding. Frankly, I loved each one of those guys and I got love and affection in equal measure if not (more)...Had it not been for my family and my children who were very young, maybe I would have continued there. But then again, these are things that you do not decide..You are like a foot soldier in the legal system. If you are told to march, you march. If you are told to come back, you come back. Justice Rajiv Shakdher.DR: How fair is that?Justice Rajiv Shakdher: That is the way it is. We must take the good with the bad.DR: You do not wish it changes?Justice Rajiv Shakdher: These are things if the policy makers have to look at, they will look at. I can only speak for myself. When I was put in that position, I took it on, when I was told to march I did, and when told to come back, I did.DR: What is your take on opting out of judgeship midway? There have been several instances.Justice Rajiv Shakdher: As a judge, opting out in the middle is like giving up on something midway. There are people who have expectations of you, you are a judge anywhere you sit. And, if you decide to do the right thing, you can do it from everywhere. So what difference does it make if I am in Delhi or Madras? If I had resigned or if people resign, you are taking the easy way. If you are very troubled, I can understand, it is a personal call. As I look at it, once you raise your hand, you go the entire way. If you opt out, it is not about you but the civil society and the nation. You cannot make it about yourself. Like the men in uniform, you are also people in service..DR: You had recently stated that "judges have no agenda, their duties and powers are delineated by the Constitution. Judges have no ideology." But this doesn't seem to be the case, given how some courts decide cases.Justice Rajiv Shakdher: See when I said that, I said it because I believed in it. And it is not really for me to comment on whether someone who believes otherwise. It is my belief, it is what I was brought up with. And, each has his own..DR: As a High Court judge, I am sure you have gone through several judgments by other courts while deciding a case, putting a (particular) point forward. Do you still think that is the case?.Justice Rajiv Shakdher: See that is the beauty of the job. If you think a view taken by another court does not align with your view, but you have the space in law or in the Constitution to navigate around it, you should do it. That is what I did. Unless it is a judgment of a superior court that is binding. You do what you do best, that is stick to the Constitution and the law. One of the hallmarks of a great judicial system is neutrality. When I say judges do not have ideology, I meant exactly that. When you look at someone's journey through law, whether he was neutral all along (or not), do not just go by his last judgment, because that will be on a particular set of facts. Look at his journey throughout, perhaps then you may come to a more fair conclusion about what the judge was all about..DR: Justice KV Viswanathan in a recent judgment said that this is a democracy of perceptions. There have been so many cases in the Supreme Court, and High Courts too, where lawyers in sensitive matters have tried not to argue before a particular bench because they think the judges will not be fair. How do you see this?.Justice Rajiv Shakdher: You know the best way I can answer this, having been a sportsman, especially a cricketer. As a team, you do not decide which pitch you play on; once you get one, you must play the match. The matter will get decided, you do your bit, which is represent your client fairly, robustly. And it is for the adjudicator, that is for the umpire, to decide. And at the end of the day, as I have said before, people evaluate, analyse, and legal scholars will decide what you did while you were there. So it is not really for the lawyers to, based on a perception, or call it pattern, decide whether they would or would not want to [argue before a judge].DR: Is it not fair to judge a judge?Justice Rajiv Shakdher: That in any case you do. It would be utopian to think lawyers are not judging judges. Senior Advocates are like generals in a war who decide whether or not to do something, but according to me, why avoid batting on the pitch if you get one to bat on? It is set out and fixed, play it. In a sense, that challenges the umpire also. Yes, if people had not argued matters before me based on some perception that it is not the court where they should argue, I would not have gotten the opportunity to say what I had to. Fortunately, I never had to face it. .DR: Which is the more appropriate system for appointment of judges - the NJAC or the Collegium?.Justice Rajiv Shakdher - See there are two views about it. There is a view that the Collegium system, whatever its faults, works better, like with democracy how it persists. The other is those who say that NJAC is a better system. Most of them concede that it did require a certain amount of modulation. That model has never come up before the Court for consideration. If it did, maybe it would take a different view. I think the jury is still out - if it is worked upon, we could get that system with some modulation. These are issues on which the policymakers have to take a call, but if they do, they have to keep in mind what votaries of the NJAC say that it needs modulation..DR: Any decisions of the Supreme Court from the last decade that you think you would have decided differently?.Justice Rajiv Shakdher: I do not want to theorise, I was not there. Unless you have full insight into what the matter is about...judgments only represent a part of what was argued, what was then appreciated and then translated into a conclusion. Especially in an adversarial system, when you are sitting as a judge, it is important to appreciate them as they happen. Someone who reads a judgment later on may think that they would have come to a different conclusion. It is when you are sitting on the hot seat and deciding the matter that you can reach a conclusion. Whatever conclusions you arrive at, it is fair for people to arrive at different ones, for scholars and even litigants. That is something a judge lives with, so I cannot say I would have come to a different conclusion, because I was not living that case. It is very easy for people to say so. But they do not know what is the full scale of the arguments..Part II coming up shortly.
