Every routine matter need not be live-streamed: Justice Rajiv Shakdher [Part II]

In Part II, Justice Rajiv Shakdher, who was a part of the Delhi High Court's e-Court Committee, speaks about live-streaming of cases and how judges should get some leeway to determine whether or not an aspect of a hearing should be aired..He also speaks of the difficulties a judge faces while deciding cases, the importance of humour in the courtroom, and sees the funnier side of the delay in his transfer to the Himachal Pradesh High Court..Edited excerpts follow..[Read Part I here].DR: As Chairman of the Accessibility Committee of the Delhi High Court, you ushered in revolutionary changes to enhance the participation of persons with disabilities. Is there space in the legal profession for them known to be dog-eat dog for such people?Justice Rajiv Shakdher: They are not looking for empathy. They are looking for reasonable accommodation so they can compete with those who are completely able. So one of things I did was to put them on the Delhi High Court Legal Services Committee panel or pro-bono panels. And the reason I did that is that they should get an opportunity to get their skills tested in court. People should get a chance to see them in court, and they should also get to argue, so people also know how good they are. It was giving them an opportunity to be there. In one case, I appointed a differently-abled lawyer as an amicus curiae in a matter involving a differently-abled litigant. For two reasons - first, he would perhaps be able to articulate what the person is going through better, and I may able to appreciate it better. That was also the case of a transfer (smiles). Often as a judge, you assume certain things. It is when your attention is drawn to the difficulties that they face - because I have not experienced it - you come up with a better result. I think this has worked wonderfully for differently-abled lawyers who say that they can do more for legal aid and for themselves.We also got an accessibility audit done. Sometimes, people think having a ramp is good enough. It is also about how do you access the website? When I was in Himachal, a matter was placed before me where the government filed a status report saying how their buildings were differently-abled. My response was that you are self-certifying what you've done - you need an external auditor. I expanded the scope of the matter to accessibility in the High Court and district courts..Debayan Roy (DR): You have spoken about the use of Al in the judiciary and the potential for misuse. When it comes to listing of cases, do you think Al can step in to remove notions of institutional bias, or it should remain with the master of the roster?.Justice Rajiv Shakdher: When you talk about technology, in isolation, it seems a wonderful means of sorting out most of your problems. It is not a magic wand that you can in my view use to sort out issues. Much depends on the algorithm. It is common knowledge that what you feed in is what you get out. If your data is in some ways infected, then even the product can be. So if you intend to use AI technology, you must closely look at what you are feeding it. You can only get good results in this case as well when you put the algorithm out for people to comment on it, tell you what is right and wrong with it, and know if the system has infected data. You should get the algorithm audited, so that you know the possible misuse is ruled out which is what people, experts recommend..DR: Should rosters in courts be decided based on expertise of the judges?.Justice Rajiv Shakdher: You must elevate judges by looking at their domain expertise, so that whatever gaps there are in a particular domain get addressed. But having said that, it is good to rotate judges for their own well-being because they also get stratified and sometimes you also need a breath of fresh air in that jurisdiction. It has been my experience that my colleagues who may not be domain experts in IPR, for example, did a fairly good job when they came to the Bench...most of the statutes which relate to particular domain are no different in construct. So a person who is not, say for example, from the IPR field is also able to perform in those areas and render judgments which are outstanding. When you are in a particular domain, you sometimes bring your practice and views to the Bench, and then take it forward, which has its own negative ramifications. I sat on the IPR Bench and I was briefed by some Senior Advocates in IPR. But my practice was not solely in IPR. But I think I did reasonably well..DR: Has the advent of live-streaming of cases increased access to justice and transparency?.Justice Rajiv Shakdher: I think it (live-streaming) is a very expensive proposition. It is of no use till you follow the protocol. In fact, (Chief Justice of India) Dr DY Chandrachud had set up a committee to devise a protocol for live-streaming. I was heading that committee. And we had judges from all over the country. We devised a protocol which, if implemented, is the right way to go about it. Because, once you live-stream, you should be able to record the proceedings. We had given an interval - a delayed recording after 5-10 minutes - to exclude the possibility of something coming in the live-stream which is not really relevant to the case, like someone makes some noise.DR - You are proposing pre-streaming censorship?Justice Rajiv Shakdher: Not censorship. We are trying to exclude the possibility of the kind of incidents you have had, someone playing a song when an actress was appearing (Juhi Chawla), those kind of things. The protocol also says let judges be in control of live-streaming. In fact, it also has a system where a person would ask for live-streaming and the other person could also say why it should not be live-streamed, and the judges could take a call. The purpose was that every routine matter need not be live-streamed. For example, if it is a landlord-tenant matter, it has no public interest. After a period of time, the storage becomes too large and expensive, every court might not afford it. Don't take Delhi, Bombay or Calcutta as examples. For some smaller High Courts, state governments don't have the financial wherewithal. It is my view and of several others that if the court suo motu has to live-stream, it must be a matter of some public importance; there are several in the High Courts. But all other matters, unless the litigant asks for live-streaming, why should it be live-streamed? A litigant is not interested in his property matter being live. And if someone wants to join, we always have video-conferencing. Like in family matters, others can join, the link is given to everyone..DR: Even as we speak, Supreme Court has rolled out a beta version of live-streaming on its website for all the courts all-day. But you are saying it not proper? Weren't you part of the e-Committee?.Justice Rajiv Shakdher: I am not saying that it is improper, (but) that was not my call. Whatever steps they may have taken...I was only part of a sub-committee on this and other aspects where we are called upon to give our views.DR: So only Constitution Bench matters should be live-streamed?Justice Rajiv Shakdher: Yes those are matters in which several stakeholders want an insight..DR: Do you think it stretches the concept of open courts a bit too much?.Justice Rajiv Shakdher: No, I think it is also about administrative difficulties, forget about anything else. I mean how do you keep that data for long? I wish people would read the protocol and understand the purpose behind it all. Suppose it is a defamation case and the trial is still going on, people should not be able to form a view based on a part of the proceedings. It would not be fair to either party when the judge has not reached a conclusion. Of course, in physical court, if you are there, you are there, but it is not retained...So the kind of protocol that has been put in place, I think would best serve the purpose and would also allow judges to speak freely. In the Indian system, you have so many cases. Judges make suggestions, for example in family disputes, where they try to persuade parties to arrive at a settlement. But if the proceedings are live-streamed without the consent of the parties, the two people who are in court and those watching would circulate the proceedings to the detriment of the litigants. It would also perhaps embarrass the judge, because he has not reached a conclusion. If the parties are not able to settle. And if the judges writes a judgment against one of the parties, then the litigant who has lost will use this (judge's observations) to somehow portray that the judge was suggesting something to which they did not agree and therefore ruled against them, not knowing that the judge was only trying to suggest the best outcome.I think we should take a call on how to nuance it a little bit more..DR: The Delhi High Court recently got a "Humour in Court" page, which was your brainchild. Tell us how this idea came about and why it is important to have some humour in court..Justice Rajiv Shakdher: There is a little bit of a history to this. When I was in the Madras High Court, I was called to give a talk to the Bar. And I always wondered on such occasions: are lawyers there as a captive audience or do they really want to be there? So I told the members of the Bar there that I am not really going to give them a lecture in that sense about any particular legal topic; better we talk about some humorous incidents in court. And that is where it all began. And believe you me, after the conversation was over, I do not like these kind of interactions with the Bar to be called as lectures, because these are more like conversations. There was a senior member of the Bar and his wife was a lawyer but not practicing. His wife presented me with a book of humorous incidents recorded......Towards the end of my tenure, this was something I wanted to do. So I discussed it with my committee members, who readily agreed and we decided to do this. We unveiled it in the canteen...and I was the first contributor so that they get over initial hesitation. It was narrated to me by a senior judge of that court who has now demitted office..There has always been humour in courts. In the 50s and 60s, there were doyens like Daphtary and Setalvad. We had outstanding judges. It only needed to be sort of put out there not only for the lawyers to enjoy, but for the common litigant also who is interested, or a legal scholar. When you upload these incidents, it also gives you a sense of what the court was at that particular time...Every court should do it. We must lighten up; of course, we deal with very serious issues, but this helps Indian judges deal with them in a very light atmosphere. Judges get a break from monotony and lawyers remain officers of the court in their banter. By the way, even Bar & Bench can contribute to it..DR: What is that one thing in your judicial career you think you could not do?.Justice Rajiv Shakdher: This is a lighter answer to a very serious question that you asked me! When I was at the threshold of being appointed Chief Justice of the Himachal Pradesh High Court, and one was not certain when the notification and warrants would be issued. There was a litigant who appeared before me because my roster included family law matters. There was this lady who said, since the buzz was in the air, 'Sir aap mera case sunke jayiye please' (please hear my case before you leave). So I was telling my bench partner that perhaps the gods are listening to her and it is not happening! For her it was a really important matter, she said it in innocence..DR: What were you finest moments as a judge? Anything you close very close to your heart?.Justice Rajiv Shakdher: There is no one moment. You put your heart and soul into each judgment; there are some tough calls you take. For example, I did a matter where a lady had taken recourse to surrogacy. She was a government servant, but under the rules, she was not being given leave as a birthing mother, and I found it very strange...I cherished the result, that I could make that difference to lots of people who can take recourse to surrogacy and be able to take leave as a birthing mother. There are several other cases which are close to my heart. But it is for you and others like you to evaluate how I came through.I was tested to hilt when a person came to court and said my mother needs a transplant and there was an organ donor for which permission was not granted...When I started hearing the matter, I called the donor to the chamber to ascertain whether she had given consent voluntarily. I realised she was a person of modest means, she had three daughters, the husband was an auto-rickshaw driver. When I questioned her, I felt that the consent was not given voluntarily. When I was writing down the judgment, I was caught between the emotional crisis of what the petitioner wanted for his mother and something that I thought was not in the best interest of the donor. Justice Learned Hand's quote that he would do justice according to law gave me a clue of how to proceed. Though I am of the view that if law and justice are too far, then the common man does not understand that. But in a case like this, it gave me some guidance.DR: The final outcome becomes very important in such cases?Justice Rajiv Shakdher: It may be harsh for one party, but that's your job. If I were a lawyer, I would plead and do my best. But the difference between a lawyer and a judge is that we put pen to paper. No one likes deciding!.DR: Any decisions of the Supreme Court from the last decade that you think you would have decided on differently?.Justice Rajiv Shakdher: I do not want to theorise, since I was not there. I also believe that 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 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 he would have come to a different conclusion. It is when you are sitting on the hot seat and deciding the matter that you can possibly come to a conclusion. Whatever conclusions you arrive at, it is fair for people to come to a different point of view, especially for scholars and even the litigants. That is something a judge lives with. So I cannot say I would have come to a different conclusion unless I was living that case. It is very easy for people to say they would have decided differently. But they do not know what is the full scope of the arguments..DR: You were seen getting your proximity card (for the Supreme Court) to practice again. What have you learned as a judge that will make you act differently as a lawyer now?.Justice Rajiv Shakdher: Good question. See being on the Bench for over 16-and-a-half years, one think has certainly changed is that I would understand better the perspective of the other side in difficult situations. And then convey to the court the point of view of the side I am representing. If in the process I fail to persuade the bench, then I would understand their compulsions from a legal point of view. Because judges need to come to a conclusion one way or another. Not every conclusion should be taken to heart. I am sure lawyers do not that even now, but I have a better understanding of what role an adjudicator is. Sometimes, they go by letter of law, sometimes they fine-tune the law and then come to a conclusion. We represent as lawyers only one side and try and do our best. But judges look at both sides and come to a fair conclusion. Having matured in age and otherwise, I would perhaps appreciate that better.