In Conversation with sitting Rajasthan High Court judge, Justice Deepak MaheshwariMarch 4 2018
Justice Deepak Maheshwari is a sitting judge of the Rajasthan High Court. After obtaining his LL.B. degree in 1978, Justice Maheshwari cleared the Rajasthan Judicial Services Exam on the first attempt, in 1980. He was promoted to Rajasthan Higher Judicial Service (RHJS) in 1999 and was later appointed District & Sessions Judge, Jaipur Metropolitan.
He also worked as Principal Secretary for the Law & Legal Affairs Department of the state government. He was elevated as an additional judge of the High Court in April 2014.
In this interview, Justice Maheshwari takes us through his career as a judge, and discusses various issues including judicial appointments, pendency of cases, and more.
Did you always aspire to be a judge? What prompted you to prefer the Bench as opposed to practice?
Unlike today, career consciousness was not ubiquitous in 1970s. A respectable government job was considered the first priority by any individual. When I took the Rajasthan Judicial Services (RJS) examination, I was simultaneously called upon to join the chambers of Justice GS Singhvi, former Supreme Court Judge, who was an established lawyer already. However, the RJS result got declared first in sequence and I fortuitously became a judge. It was my first attempt and I was happy to clear it.
You have also served as Principal Secretary for the Law and Legal Affairs department of the state government. How was that experience?
The position of Principal Law Secretary of a state is a bridge between the concerned State government and the High Court. It is a sine qua non for the smooth functioning of the judiciary, as the Principal Secretary is responsible to get the required sanctions from the state government for the balanced development of judicial setup within that state. It may become a tedious job sometimes, but fortunately for me, the state cooperation was excellent.
The state and central governments are held responsible for the majority of litigation in courts. What can law officers do to minimize the litigation involving governments?
First and foremost, do away with archaic laws. I appreciate that there has been some progress in this regard but the same needs to be done further. The second major problem which Indian statutes face is the dearth of clarity in drafting legislation. Take for instance, the Insolvency and Bankruptcy Code of 2016, a newly drafted piece of legislation that had to undergo various interpretations by the courts and tribunals to remove ambiguities. Still, this process is ongoing and amendments have been introduced.
It is not the first occasion when the text of a statute lacks precision or foresight due to which disputes have arisen. To avoid such sort of cases involving lack of clarity on part of the government, it is imperative that legislators keep themselves abreast of modern drafting techniques by attending short courses and seminars on how to draft a legislation with efficiency.
When I was incumbent as the Principal Law Secretary of Rajasthan, I attended one such short course organized by the University College London in London, UK. It was highly valuable. In today’s world, which is dominated by new methods of business and commerce, the need has increased even more.
Could you discuss the role you played in the 68-day-long lawyers’ strike that happened in Rajasthan in 2014?
It was a tough time for judiciary of the entire state when the strike was called by the Bar in 2014. Being head of the district judiciary in Jaipur Metropolitan at that time, it was my responsibility to maintain law, order and integrity of the institution. Due to able guidance and support of senior judges, my colleagues and right-minded members of the Bar, the strike could not continue and came to an end after 68 days of disturbance.
Since then, there has been no strike by the lawyers in Jaipur. This is one positive aspect of it and I congratulate the Bar for its effort to understand the ill effects of a strike and the harm it could have potentially caused to the institution had it continued longer.
What is your take on lawyers’ strikes? How can issues between the Bench and the Bar be resolved amicably?
Strike by lawyers has been declared illegal by the Supreme Court in Ex. Captain Harish Uppal v. Union of India (2002), which has further been reiterated recently in Hussain and Anr. v. Union of India (2017). I am a firm believer of this principle as well. If at all the disputes arise between the Bar and the Bench, they need not be resolved only by way of a strike.
Conciliation is a good method to start with, but the exchange of dialogue should take place between the top representatives of the Bar and the Bench. If the disputes escalate, Chief Justice may be requested to act as the mediator. As observed, ADR is a preferred choice of recourse suggested by lawyers to their clients nowadays. Lawyers should also preach what they teach.
Could you describe a day in the life of a sitting High Court judge?
A High Court judge often decides important questions of law as well as personal liberties. In a single day, he presides over 80 to 90 such cases on an average. His decisions affect public life and therefore, such decisions cannot be rendered without application of mind. Without much elaboration upon the hard work required, it would suffice to say that a judge has to sacrifice his leisure time and work on almost every weekend to ensure that he is able to do justice to his work. Most of the holidays have become symbolic.
In context of the heavy workload on high court judges, what would you say to those who believe that court vacations are too long?
To elaborate upon what I just said, even if a judge was to sit for the whole calendar year without taking a day off, arrears would not come to an end. There is abundance of fresh filing in courts every day which requires relief of urgent nature in some way or the other. Though the workload may reduce a little bit by modifying the court vacation schedule, it is practically not feasible to bring a substantial change without increasing the number of judges.
The present low strength of judges is leaving no stone unturned in disposing of maximum cases. It is a well-known fact that there exist vacation benches to cater the urgent matters which come up during court vacations. Furthermore, 2017 onwards, judges of the higher judiciary are now required to sit on chosen Saturdays as per the recommendation of the Chief Justice of India. Notwithstanding this fact, the judge to public ratio has to increase if India wants better administration of justice.
Do you see a direct co-relation between the number of vacancies in high courts and the growing pendency of cases?
As stated previously, there is a direct correlation and it affects things substantially. To mitigate it, the procedure of appointment should be such that as soon as the vacancy occurs, it must be filled immediately. In the current system, it takes up to several months in order to officially appoint a judge from the time his name is recommended. Particularly, for the judges who are elevated from the lower judiciary, this gap may be reduced even further based upon their official track record as a judge.
What can judges and lawyers do to bring down the pendency of cases?
Unwarranted adjournment is a major factor that augments pendency. In my view, it is often the case that lawyers seek adjournment on behalf of their clients who do not want the case to proceed because of expectation of an adverse order. My suggestion might go against the interest of some lawyers, but to curb this phenomenon, they can assist the court without making any such request despite insistence by their clients. The pendency will automatically reduce as the number of days for hearing a matter will reduce.
What is your take on the recent events at the Supreme Court, where there appears to be a rift among judges?
Every institution has its own internal problems. I can say with certainty that not a single person in the Supreme Court wants fragmentation of the institution. Courts are often looked upon as the last resort by the public when everything else fails. But, if some members of the judicial fraternity have themselves started losing faith in the system, it can only be considered a sad state of affairs. Since the differences have been made public, the Supreme Court will be more cautious of its internal administration to preempt any further embarrassment.
What is your take on the Collegium system of judicial appointments?
A transparent Collegium system, as it exists today with the decisions being made public, is a better system than the previous Collegium system, which used to work behind the closed doors. However, there is one catch in it which some judges have also highlighted. If there is a negative report against an individual who is yet to be appointed to the higher judiciary and his published report is in the negative, it will blemish his career for the lifetime, which may be detrimental to his overall performance.
Further, a possibility of wrong assessment of a candidate cannot also be completely ruled out. It entails a heavy burden on the Supreme Court to ensure minimum chances of error while recommending a name for judicial appointment.
What is the most memorable case you have decided as a judge?
There are two cases that I will always remember. These were criminal cases related to the same accused, a notorious dacoit in the states of Rajasthan, Madhya Pradesh and Uttar Pradesh. In one of those cases, I acquitted him, whereas in the second case, I convicted him. However, after pronouncement of both the judgments, he revealed that the reality of matters was reverse, since the prosecution witnesses deposed falsely, although the judgments were rendered after a fair trial.
This revelation not only shocked me personally, but also shook my faith in the very basis of paper administration of justice. I wondered how justice could prevail in such cases despite a judge applying himself with industry, being upright at all times, studying the matter with labour, and following the procedures established by law. If the evidence adduced by the witnesses is not true consistently, what would the ultimate result be? It is not within the hands of judges.
But the bigger picture involves a more pressing issue on this aspect. Even if the witnesses were to speak the truth at all times, what security or protection can the state provide to these vulnerable and poor people against the mighty wrongdoers? Can we then legitimately expect them to speak the truth before the court?
How do we ensure that the best law graduates (or at least a part thereof) are incentivized to join the judiciary?
Salary and infrastructure are the major hindrances in this regard. If they can be taken care of, I don’t see any other reason why the best brains would not like to join the judiciary.
It is obvious that a graduate of a top Indian university or international university would want to work in a condition that is conducive to his expectation. Currently, the salary structure of subordinate judiciary is not high enough to sustain a family of a judge in a cosmopolitan city, where I believe most of the best law graduates would like to work. Otherwise, if a young graduate with international exposure is transferred to a remote rural area as a judge, what do you think are his chances of working with contentment?
Similarly, the infrastructure of lower courts is not up to the mark, but it is improving; some regions have done well compared to others. For example, there is a vast difference between the infrastructure of the district courts of Delhi and Rajasthan; the number of aspirants for the Delhi judiciary vis-à-vis the Rajasthan judiciary speaks for itself.
What advice would you have for judges of the subordinate judiciary?
Having earned 38 years of experience in judiciary, I can simply say that impartiality, honesty, patient hearing and hard work are the virtues that a judge must retain and keep reminding himself of. A judge cannot ignore the responsibilities assigned to him. What he can ignore are his personal problems and hardships. Be God fearing!
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