High Court judge is the only constitutional post that comes on a mere recommendation, sans interview: Justice PN Prakash [Part II]

In the first part of the interview, Justice PN Prakash spoke about the lack of truth in the justice system we inherited from the British and the solutions he has in mind to help fix the system..In this second segment of the interview, Justice Prakash talks to Bar and Bench's Ayesha Arvind on giving district judges their due, how litigation before our courts can be curbed, how the Collegium system can be improved and more..Ayesha Arvind (AA): You have spoken about district judges who were promoted to the High Court getting a raw deal..Justice Prakash: This issue of promotees getting a raw deal has to be addressed. You cannot say that the promotee judges are not as talented. Look at Justices KT Thomas and R Banumathi. This Constitution was saved only because of a promotee. In the ADM Jabalpur case, it was Justice HR Khanna, a promotee judge, a man from the district judiciary, who upheld our Constitution. The other four who were elevated from the Bar were busy with their own internal rivalries. So, to say that the people from the district judiciary are a misfit, is a myth created by the lobbyists. To tone up our judicial system, we will have to do a few things to create competency at the Bar level itself..Sometimes, High Court judges also suffer humiliation. Take the case of Justice VK Tahilramani. After she was transferred to the Meghalaya High Court, she resigned. Former Chief Justice of India Ranjan Gogoi allowed a CBI inquiry against her after her resignation. Even now, after the CBI has exonerated her, she remains stoically silent. Whereas Chief Justice Gogoi in his memoir has referred to her.Note: An initial version of the interview incorrectly said that Justice Tahilramani had resigned after the CBI inquiry was ordered. That has been edited to reflect the correct factual position. .AA: Speaking of Justice Gogoi, do you have any opinion on the whole sexual harassment episode?.Justice Prakash: The three-member inquiry committee had people of high integrity, who were beyond reproach. I can say this because I knew one of them, Justice Indira Banerjee, personally, as she was my Chief Justice.But the manner in which the inquiry was conducted lacked fairness, I feel. Had they suspected the woman’s credentials, they would not have reinstated her. Which means there must have been some truth in the woman’s statement.For a long time, I had been wondering about the committee report having been kept a secret. I got my answer though, from this paragraph in the book Geography of Thought by Richard E Nisbett. It says, “In Asia the law does not consist, as it does in the West for the most part, of a contest between opponents. More typically, the disputants take their case to a middleman whose goal is not fairness but animosity reduction—by seeking a Middle Way through the claims of the opponents. There is no attempt to derive a resolution to a legal conflict from a universal principle. On the contrary, Asians are likely to consider justice in the abstract, by-the-book Western sense to be rigid and unfeeling.”So, though the procedure lacked fairness, what the inquiry committee effectively did was “animosity reduction.” From the woman’s point of view, she perhaps thought it would be futile for her to continue with her fight as our system is not very supportive of the weak and the poor.When they gave her her job back and quashed the case against her, she must have accepted it as a blessing and as a 'Prarabtha Karma'..AA: Coming back your point about toning up the judicial system. How do we achieve that?.Justice Prakash: The Bar is the selection pool for the judiciary, so, we must create competent lawyers. Are our lawyers being taught accountability? Recently, I heard Harish Salve saying in an interview that in England, if a lawyer commits one mistake, she or he is finished. Their license to practice law is gone. The real problem, says English judge Elmar Mack, who decided to remain in India and serve our country after independence, is incompetent people writing poor documents. All of this kachra becomes litigation. In England, such things are taken care of by the solicitors. Problems are nipped in the bud. But here, in our country, these problems continue and go up to the Supreme Court. If 50 percent of civil cases fall, 50 per cent of the criminal cases will automatically vanish. Because, most of the criminal cases in our country are a follow-up of civil litigation. For example, the inability of the civil courts to render justice in a petty dispute leaves one to haggle with his neighbour over something insignificant. And the cases keep accumulating..AA: What can be done to ensure that quality judgments are produced at the district court level so that everything doesn’t need to come to the High Court? .Justice Prakash: The State has to recognise this problem. I feel the district judiciary more or less writes decent judgments. It is just that they are victims of a very feudal system. They are often treated like doormats, so, they lack self-esteem. They work in fear - fear of the High Court, fear of the Bar, of anonymous petitions. How can you expect a mind filled with fear to deliver justice? They can only deliver judgments, not justice. We have to recognise this..AA: What do you suggest then?.Justice Prakash: Law education must be made a very serious affair. In England, for appearing in the sessions court, you must have a certain number of years of experience and you would have had to clear certain examinations before taking up a murder case. Because, you are dealing with somebody’s life. Whereas, in our country, anyone can appear in such a case. We are providing very poor legal services to our citizens.And to provide quality legal aid to our citizens, we need rigorous training for our lawyers and judges. We also need to weed out common ills such as perjury in the courts, which have been plaguing the judiciary for years. A judicial quack is far more dangerous than a medical quack. The latter only injures a patient, but the former gets a whole generation into frivolous litigation and kills them thus.We have to make the judiciary people-friendly, easily accessible and less expensive. I am told the charges for legal assistance in Delhi are exorbitant. All this makes the less fortunate lawyers resort to corruption, to create a nexus in motor accident cases, fudge insurance papers and such things, and the common people end up suffering. We have to make a serious effort to serve the common people and a concept of service has to be created at the level of law colleges itself. Make it compulsory for law students to go serve in mofussil areas after enrolment for a year or for two years. Abolish document writing by document writers. Documents must be written only by competent lawyers. And if anything goes wrong, the Bar Council must be strengthened to take action against the lawyer.Then, litigation will be controlled. Once civil litigation is controlled, criminal litigation will automatically be controlled. Indians are not a society of criminals. I went to the United States and I visited the Alcatraz Prison. I was shocked to learn that 33 per cent of people in the United States end up in prison. Whereas in Tamil Nadu, we have 10 Central Prisons and the total population in those will not exceed 50,000 at any given point in time. In a population of seven crores in the State, 50,000 is nothing..AA: You have also spoken about changing the physical location of the Supreme Court..Justice Prakash: Yes. I don’t know how much will you agree with it, but I really feel that the Supreme Court should be shifted to somewhere in Madhya Bharat (Central India).I am really worried about the health of our Supreme Court lawyers and judges. The pollution in Delhi is so bad that by the time you reach the Supreme Court, you will have so many diseases. You may not be able to render justice. Also, when you shift the Court to Madhya Bharat, it will become more accessible to the southern states of India. Shift to a good physical environment, a sprawling campus, somewhere in a city like Indore or Hyderabad. Also, video conferencing has to be encouraged. Lawyers from anywhere should be able to practice in the Supreme Court. .AA: The Supreme Court has also kept matters of much importance pending. Do you think it implicitly supports or facilitates the government when it comes to curbing citizens' rights?.Justice Prakash: Much has been written and said about all this. But given the pressure of work in the Supreme Court - much of which is sometimes self-inflicted because it burdens itself by taking up so many Public Interest Litigation (PILs) - any delay on the Supreme Court’s part cannot be deliberate. We can’t say that the Supreme Court is teaming up with the government. That will be too uncharitable. No government ever wants a strong judiciary. This happens all over the world. But thanks to Dr BR Ambedkar and our Constitution, the Indian judiciary is a self-repairing system. Except for financial assistance, it doesn’t require help from the government. The judiciary is capable of repairing most of its problems on its own..AA: My next question is on the Collegium system. Is there a better system that we can have for appointing judges?.Justice Prakash: I am a product of this Collegium system. But of course, we can have a better system. Why don’t we look at it this way? I became a judge because five people in the High Court and five people in the Supreme Court believed in my abilities. But somewhere, there should at least be a minimum of an interview. Suppose you were to hire a cook or a driver for yourself. You’ll ask them to make something simple like idli and chutney, or rice and dal. You will ask the driver to reverse the car and show. But, for a constitutional post of a High Court judge, one that comes with wide powers under Article 226, there is not even an interview.To become a politician, you have to keep convincing the people every five years. To become a bureaucrat, you have to crack an exam. But, a High Court judge is the only constitutional position that can come on a mere recommendation.And once a judge, you will be a judge till you turn 62, unless you are impeached, which again is very rare. What a risk one is taking..AA: What, according to you, is the alternative? .Justice Prakash: We should all collectively think about this without malice. All this canvassing that goes on for a High Court judge’s post, because everybody wants this power, must stop.I doubt whether I would have even been able to clear the munsif examination, let me confess this to you. That is why I respect the district judiciary. They prove their mettle by writing an examination, undergoing training, writing thousands of judgments. While I got catapulted to becoming a High Court judge. And then this whole thing about judges’ sons becoming judges. Also, do you mean to say that are no competent lawyers in the mofussil areas who can become judges?Lawyers practicing in the High Courts are only getting the opportunity. Take Justice S Nagamuthu (who was a lawyer practicing before the Madurai bench of the Madras High Court before his elevation) for example. Like him, there must be so many other competent people. But only writ lawyers appearing before the first three benches get noticed. These are the questions we need to ask. When I was a lawyer practicing in the Madras High Court, I did not have much work before court numbers one to five, and there was every chance that the Chief Justice might not have known me at all..The fear is that if you give power to the executive, they will pack it with their yes men. But, this has become a constant topic of debate with the government. There are so many retired Supreme Court judges willing to serve. Why not form a committee? Let them conduct interviews of the candidates supported by the High Court Collegiums..AA: The Supreme Court Collegium and the Central government have been at loggerheads over appointments for some time now, with several recommendations made by the Collegium gathering dust. What is the way out?.Justice Prakash: These confrontations are bound to happen. This tension is inevitable in a democracy. Of course, ideally it should not happen, but conflicts between the executive and the judiciary have been prevalent for years. There is this famous instance recorded in several books by jurists, where sometime in the 1826, Monstuart Elphinstone, who was the Governor of Bombay as it was called then, challenged the then Chief Justice Sir Edward West to a duel over a disagreement.Two years later, Justice West died of ill-health. The challenge to the duel is said to have worsened his health..AA: You disposed of 69,190 cases during your tenure as a judge of the Madras High Court. But in your retirement speech, you said that this was hardly a feat and that Artificial Intelligence could easily match the number soon. Do you see this becoming a reality?.Justice Prakash: It is just the discipline that I picked up from my senior, Mr Rajamanickam. And the Supreme Court has said that judges should live like hermits. I took it seriously.And I declared my assets because there is nothing to hide. All I cared about was to be true to my job. To be honest with you, I don’t know a lot of things. But whatever little I knew as a judge, I knew very thoroughly. So that subject confidence about criminal law I had, I understood it and embodied it. Had you put me on a second appeal or given me a civil assignment, it would have been disastrous..AA: Can you recall some of the most memorable cases you presided over, or judgments you delivered while a judge at the Madras High Court?.Justice Prakash: The making of the Criminal Rules of Practice, 2019 is something that I am very proud of. It is a result of 15 long years of labour. The previous Rules that courts in Tamil Nadu were using were from the year 1958, and it was based on the 1898 Code of Criminal Procedure (CrPC). After the Madras Presidency was dissolved, all new states except Tamil Nadu came up with their own new Criminal Rules. This used to bother me a lot and during my years as a lawyer, so I started preparing a draft. Once I became a judge, I discussed it with the then Chief Justice Sanjay Kishan Kaul. He immediately constituted a committee comprising Justices Nagamuthu, M Chockalingam, and myself.After Justices Nagamuthu and Chockalingam retired, Justices G Jayachandran and N Satish Kumar joined me in the committee. We took the State government and all other stakeholders into confidence, and developed the new Rules. These Rules will serve criminal jurisprudence for the next 100 years..AA: Is 62 too early a retirement age for high court judges? Do you feel you have much more to offer?.Justice Prakash: I have much to offer and I have started teaching underprivileged law aspirants already. But 62 is a good age limit. Beyond that, people will get fed up of us. You have to keep moving to keep making place for others. Give a chance to others. You can’t say that only I am going to be a judge. Just move out gracefully. Those who want to go to Supreme Court and practice, can do it. If they want to do arbitration, they can. And people like me, who don’t want to do that anymore, don’t need to. I can just sit and teach. Some years ago, I had gone to meet former CJI MN Venkatachaliah In Bangalore and he told me that he, along with his colleagues Justice JS Verma and Justice V krishna Iyer, had decided never to take up any post-retirement jobs or to do arbitration. They had decided to only serve the people. I was really struck by it. It is true, right? Why should one accept any government posts after sitting on a constitutional post of a High Court judge?I know that I am a Utopian and none of my suggestions will find favour with the entrenched. It does not matter. This institution gave me identity and I will always keep saying what according to me will be good for this system, even if nobody asks. .Our judicial system is a farce, thrust upon us by the British: Former Madras High Court judge, Justice PN Prakash [Part I]