“Many competent, honest persons have not been brought to the Supreme Court” – Former SC judge, Justice AK Patnaik

Justice AK Patnaik does not waste too much time in getting to the point nor does he bother with diplomatic double-speak. Prod him on the ongoing debate over judicial appointments, and his answer leaves little room for doubt. After admitting that his own elevation to the Supreme Court was “blocked” by a collegium member, denying him the chance to retire as Chief Justice of India, the former judge goes on to say that,.“The best have not come to the Supreme Court.”.It is a directness that is maintained through the entire conversation..Harking back to the days of Indira Gandhi, Patnaik says that the government wanted to have a judiciary that would help the government in implementing its agenda..“In Indira Gandhi’s time the courts were packed with what were known as (in Mohan Kumarmangalam’s words) ‘committed judges’. The government assumed the right to decide whom among the judges was committed to the Constitution and who was not.”.“That is why Justice Verma and others ruled that the best way to appoint judges was through the collegium system.”.The judgment he is referring to is the 1993 majority judgment authored by the late Justice JS Verma in the “Second Judges” case. He says that there were two objectives for putting the collegium system in place..“The first was to ensure the independence of judiciary with the judges having a final say in the appointment of judges, leaving out political considerations. The second objective was to ensure that a competent and honest person is selected, as the collegium knows best about the candidate.”.Despite the best of intentions, the system has proven to be far from perfect..“Many competent and honest persons have not been brought to the Supreme Court. There has to be some institutional way of finding out who is good and who is not good, or who has got more merit and who has got less, there needs to be some comparative assessment.”.And it is not just the need for an effective assessment process that has worked against the collegium system. It is also the creeping in of personal biases and prejudices..“Whichever judge becomes a collegium member, he will pull up his own persons who he knows or those who are from his own state. For example, I was posted in Madhya Pradesh and have never been posted in the South, I know judges from my state and I will push for [their] appointment. I wouldn’t know much about good judges from the south and they would be ignored.”.For all its shortcomings though, the collegium system does have some benefits. For example, the preservation of judicial independence..“The independence of judiciary has been achieved because of the kind of judgments that have been delivered. Judges who did not owe their appointment to the Executive acted independently. Also, those who have acted independently have not been punished and some have been brought to Supreme Court.”.The Autonomy of the High Courts has gone.The drawbacks of the current system are not limited to the Supreme Court alone. A similar situation has arisen in the High Courts as well..“The Chief Justice of a High Court knows that his career is dependent on the Supreme Court collegium members so he starts canvassing with the collegium members.”.The canvassing works in both directions..“Supreme Court judges who wanted certain persons to be appointed in the High Court whether they had merit or not kept on insisting to the Chief Justice “You please appoint him, you please recommend him!” These things happen behind the scenes and everybody knows about it! The autonomy of the High Courts has gone.”.Justice Patnaik says there is a lot of factionalism and bitterness in the judiciary. An informal system of regional representation has been practiced in the apex court, and Patnaik wants this to be institutionalized..“This is a federal state and these are practical aspects. So representation should be there but you should look at his merit, his judgments, his integrity, and then elevate him. This is not happening in the country. What is happening is “My man, your man”. Seniority is bypassed.”.So will the NJAC be any better?.“I hope [factionalism] will not happen in the NJAC because everything will be institutionalized. It will no longer be an inside affair of judges. Some external check has to be there. There has to be an independent Constitutional body and that has now been provided. NJAC is a separate independent constitutional body, which is not the Executive nor is it the judiciary!”.As a senior judge in the Supreme court, and as Chief Justice of Madhya Pradesh, Patnaik has enjoyed a ring-side view of the workings of the collegium system..“When I was there in the collegium, there was no one from Madhya Pradesh High Court; I insisted to the CJI that when Justice Gokhale retired, this vacancy should go to [Justice] Arun Mishra. If you don’t have this, the CJI will start packing the court with his own people. Supreme Court is the national court but this representation should not be done at the cost of quality. If you don’t have a suitable candidate, don’t do it.”.“I think Gopal has done the right thing”.Justice Patnaik was also a member of the collegium that recommended the elevation of Gopal Subramaniam to the Supreme Court’s Bench. The elevation eventually did not come through, with Subramaniam withdrawing his consent. Patnaik is certainly not pleased with the way things have turned out..“Gopal’s credibility and integrity is beyond doubt and he is absolutely competent.”.“If the Government had anything to say, they could have said it to the Supreme Court. They shouldn’t have sent the papers to the President and in my opinion the President also should not have signed the papers and approved three names for appointment.”.“I think Gopal has done the right thing. He had the right to withdraw especially when the Government was opposing (his elevation) in such a nasty way. I would have done the same thing.”.“Truth is not everything”.The collegium system has also been attacked by former Supreme court judge, Markandey Katju. The judge has made a number of allegations of corruption in the judiciary. Understandably, these disclosures have drawn a mixed reaction.Although Patnaik says there is a lot of truth in what Katju has said, he doesn’t appreciate the manner in which it has been brought to light..“We have to ensure that the reputation of our institution is intact. It is very important. Truth is not everything. You can’t pull down an institution in public. The reputation has to be preserved.”.Interestingly enough, the “institution” whose reputation he strives to protect was one he joined by sheer coincidence. Initially aiming to become a doctor, Patnaik ended up studying the arts instead. With social service in his mind, he took up law. Finding success in the Orissa High Court at a young age, Patnaik soon began making regular appearances in the Supreme Court. It was here that he found two, young lawyers who he sought to emulate – Kapil Sibal and Harish Salve..“I thought to myself that to come here and catch up with them, it will take a minimum of 10 years. So, I was toying the idea of how to catch up with them. Then this offer to become High Court judge came to me. I said, “Alright! I should go there.” Of course initially the Chief Justice said I was too young at 41. A year later, my name was sent again. It took another two years for the appointment to come through.”.Switch from the Bar to the Bench.In January 1994, AK Patnaik was made a judge of the Orissa High Court. A month later, he was transferred to Guwahati. Looking back, he says this proved to be a major advantage..“I took oath as Orissa High Court judge on January 13, 1994. I took oath on transfer on February 7, 1994 in Guwahati, where no one was known to me. No attachment and no friends. I was not from the same Bar – so it was a big advantage. I was there for 8 years. And I went back when Justice GB Patnaik told me that I am required in Orissa.”.Thereafter, then CJI Lahoti sent him to Chattisgarh..“After 4 months Lahoti told me, I would move you to MP High Court before I demit office.” I asked, “What about Chattisgarh? He told me “You had gone to Chattisgarh to bring up the High Court. According to us, the Chattisgarh High Court is not just walking, but is running.”.Justice AK Patnaik is proud of the fact that throughout his career in the High Court, almost all the judgments were dictated in open court.“As a result, my judgments are very rarely criticized! Only one judgment with Justice Swatenter Kumar in Namit Sharma on the Right to Information Act was criticized. He said High Court judges should be appointed. I was very uncomfortable with it. At that time, my mind was not made up whether what was done was right or wrong. Later on when review was filed, I changed it.”.Given the fact that he has been in the judiciary for two decades, AK Patnaik’s experience is not limited to the collegium system alone. He has also seen, first hand, how the judicial machinery has tried to tackle pendency..“The only way to expedite the criminal trials and reduce pendency is to increase the working strength of judges and public prosecutors and, to add more courtrooms.”.When I was Chief Justice of Madhya Pradesh, the state government had provided the requisite funds. As a result a trial is completed within 6 months to 1 year from the date of filing the charge sheet and suits are settled in 1 year.”.And while at the Madhya Pradesh High Court, Patnaik also got the chance to see the workings of a unique attempt at clearing pendency..“By the time I went to Madhya Pradesh, a great administrator, Chief Justice UL Bhatt, had put in place a ‘unit system’ where judges had to meet 30 units per month.”.Let’s say, if a judge disposes off a session’s case, he will get 8 units; 2 sessions case, 16 units. So, a session judge had to dispose of 4 session’s cases to reach 30 units. When I went to Madhya Pradesh, the lawyers came and said that in order to complete the units, in the same court one side argument was going on and the other side evidence was being recorded, and judges were not paying any attention..“I constituted a committee of high court judges who had been elevated from the subordinate judiciary to revise the system. The committee suggested, “Instead of 8 units we will give 12”, so if two sessions cases are decided, you get 24 points. Even then lawyers started writing to me, “We cannot take this speed! They did not have the capacity.” So I called them and said, “Will you be happy if I declare all Saturdays as non-court working days?” They said, “Yes”. I said “Except in urgent bail matters/injunctions”. So, in full court we decided it, circulated it and that is how a system is in place in Madhya Pradesh. So, everything is possible!”.At the same time Patnaik points out that judges cannot be judged purely on their disposal rates..“You have to see the quality, whether justice has been carried out. There is scope for improvement everywhere.”.Experiences as a Supreme Court judge.Justice Patnaik was elevated to the Supreme Court in 2009, and the next five years were to bring forth a number of challenges..“Since this is the last court, the lawyers put in their best fights and some of the best talent is available in the Supreme Court. And Patnaik developed his own techniques to utilize this talent..My technique as a judge has been to provoke the lawyers in such a manner that they come out with their best. This was one such experience.”.The other challenge was writing a judgment as a Division Bench..“When I was Chief Justice in Madhya Pradesh, the brother judges would say, “chief justice keh raha hai. Likh do! Why take panga with him.” And here, I was not the Chief Justice. If your brother judge does not agree, my judgment is just a piece of paper!. My technique was that you should reason out the judgment so well that the brother judge will look at all authorities and would say, “What he has written down is correct!” That is how I succeeded.”.Post retirement days.Justice Patnaik was offered the position of Chairman, State Human Rights Commisssion of Orissa, after his retirement. However he refused, as he wanted to stay in Delhi and spend some time with his family..He is doing some arbitration work. Also, Justice GP Singh has taken a commitment from him to continue revising his book on Interpretation of Statutes..“I want to write. I feel like I should continue doing good work – I should deliver lectures, I should write to bring about various changes in the system.”