Sit with a judge and you will realize how easily he can get burned out, Justice Badar Durrez Ahmed [Part I]

Aditya AK November 25 2018

Justice Badar Durrez Ahmed is a former Chief Justice of the Jammu & Kashmir High Court and former Acting Chief Justice of the Delhi High Court.

In the first of this two-part interview, Justice Ahmed speaks about technology in courts, overburdened High Court judges, and more.

Justice Ahmed’s decision to take up law might just have been influenced by the fact that his father – former President of India Fakhruddin Ali Ahmed – was an eminent lawyer himself.

Fakhruddin Ali Ahmed was India’s fifth President from 1974-77. Source

“He was a Barrister and the Advocate General of Assam before he went into politics full time. So, it must have been at the back of my mind.”

But his entry into the legal profession happened only after serving a stint as a lecturer at Delhi University.

“I was actually an economist, having studied at St Stephen’s College, Delhi. Then I went to Cambridge University to do my Master’s in Economics and I had decided to do law after that. Unfortunately, in my final year, my father passed away and I had to come back. Both my siblings were in the USA, and we had a lot of issues to tie up like property issues, succession etc.

So, I planned to take a one year – let’s call it an adjournment – before doing Law at Cambridge. But it so happened that since I was in India, I went to meet the Principal at St. Stephen’s, Mr. Rajpal. He said, ‘Since you are here, why don’t you teach?’ And so, I decided to teach Economics for a year.”

Finding extra time on his hands, Justice Ahmed decided to take up the evening courses at Delhi University to study law. He eventually decided not to go back to Cambridge, and completed his 3-year LL.B. from DU.

A lucrative practice followed, and two decades later, the question of joining the Bench arose. Was it always part of the plan?

“No, it wasn’t. In fact, my mother used to tell me, ‘Only a person with a failed practice becomes a judge (laughs)’. I had that at the back of my mind, so it wasn’t part of my initial plan at all.”

A reluctant Ahmed J was persuaded to take up the post of a High Court judge by his friend, Senior Advocate Kailash Vasdev.

“He [Vasdev] was close to Justice BN Kirpal, who was then at the Supreme Court. So, he rang him up and said, ‘Why don’t you get Badar as a judge?’ He replied, ‘Yes, yes. I wanted him. Please send him to meet me’. After meeting Justice Kirpal, I went on to become a judge.”

After his appointment as an additional judge of the Delhi High Court in 2002, Justice Ahmed went on to serve there for almost 15 years. He describes his experience as “very, very fulfilling”. In his famous ‘May the Force be with you’ farewell speech last year, he mentioned that the Delhi High Court is the premier court in the country. So, what sets it apart?

“One, the Delhi High Court is cosmopolitan. You have people from all over the country who have ended up in Delhi and come into the judicial system after being lawyers. We had judges from West Bengal, Tamil Nadu, Maharashtra and many other states. That brings about a lot of cross-fertilization of ideas, and I think that really builds the Court.

“The Delhi High Court is cosmopolitan…it brings about a lot of cross-fertilization of ideas.”

Secondly, the quality and scale of litigation in the Delhi High Court has really gone up. The Bar that is practising in Delhi is really enriched by the diversity of litigation. And it is from the Bar [that] you get the judges, apart from those who come from the district courts.

About 25-30 years ago, Delhi was not really a commercial hub. But now, there is a lot of commercial litigation, particularly in the field of IPR. So, there is a good mix of diverse people from diverse practices. That is what gives the High Court the edge.”

He served as Acting Chief Justice of the High Court twice, before being transferred as Chief Justice of the Jammu & Kashmir High Court in 2017. He describes his experience in the troubled state.

“The Delhi High Court started off as a four-judge court in 1966. It now has a sanctioned strength of 60. But the Jammu & Kashmir High Court has a sanctioned strength of only 17 judges. Before I demitted office, I had written to the Law Ministry and the government that it must be increased to at least 25.

Jammu & Kashmir is a troubled State, as you know. So, people think that things don’t work there. But the only institution that has been functioning there right from the start is the judicial system. By and large, people have faith in the judiciary. Even during militancy, which ebbs and flows, there hasn’t been any aggression towards the judiciary.

“The state has been neglected from a judicial standpoint.”

However, from the judicial standpoint, I feel that the State has been neglected. There was no technology in the courts, the number of judges is inadequate, and the infrastructure was not there. The type of litigation is also completely different. The Bar in Jammu & Kashmir is also good, but the focus is very different. IPR is non-existent; commercial matters are not there, because there is no commerce. All that will develop in time.”

He set out to improve the state of affairs in Jammu & Kashmir.

“The first thing that I wanted to do was to bring J&K up to speed insofar as technology is concerned. Secondly, I wanted to up the confidence level of the Bar and the Bench. Thirdly, I wanted to reach out to the far-out areas in the state. I found that for whatever reasons, previous Chief Justices were not very adventurous. I wanted to have a greater connect with them so that they feel a sense of belonging.”

Despite having a short tenure as Chief Justice (less than a year), Justice Ahmed was able to achieve his goals. However, he is of the opinion that Chief Justices should be given a longer tenure if they are truly expected to make a lasting change.

“I think that Chief Justices should have a tenure of at least two years. I was fortunate to have achieved all the three things that I wanted to in my short tenure. Fortunately, the government also supported me. I also got the full co-operation of my colleagues, which is usually the most difficult thing to do. Judges are usually not welcoming of technology. If you set out to do something as a Chief Justice from day one, you can do something.”

Thanks to his initiative, the J&K High Court was brought on par with other high courts in terms of technology. He also introduced video conferencing for hearings in which the parties were from far-off places like Kargil and Leh.

On the topic of technology, Justice Ahmed reveals himself to be quite the tech geek, a far cry from the average tech-phobic judge. In fact, he used to even dabble in computer programming, and created the first “app” for lawyers.

“Long before I became a judge, our chamber in the Supreme Court was the first to get a computer. When it was installed in 1984, all our colleagues came to see what a computer looked like! These were the days when you had the IBM PC XT. Data was stored in floppy drives and the hard disk had a capacity of 10 MB.

I taught myself computer programming during that time. As there were no programs available for lawyers, I made one for our practice. Other lawyers also asked for it, so I gave it to them. It was a program called ‘Lawyers’, to keep tab of cases, clients, accounts and billing. I made two separate ones – one for counsel practice and another for lawyers who had a solicitor practice.

Interestingly, one of the first persons who took my program was Justice AM Khanwilkar, who was on the same row in my chambers!”

Justice AM Khanwilkar of the Supreme Court

Having been part of the Supreme Court eCommittee ever since its inception, Justice Ahmed has been at the forefront of the eCourts movement. Though he says there is a lot of scope for improvement, he describes the eCourts app as one of the greatest achievements.

“Through the eCourts App, you can find the causelist and case status of a court in the most obscure towns in India.”

Justice Ahmed is also in favour of having near paperless courts and video recording of court proceedings, an initiative that the Supreme Court has now taken up seriously.

The conversation moves on to an issue that has long plagued the judicial system, and continues to do so: pendency. So, is there a direct co-relation between pendency figures and the number of vacancies in courts?

“Surely. You can’t have a one-to-one relation, where if you have one judge less, you can predict how it will affect pendency. That is because there are many other factors that come into play. But the greatest impact on pendency can be made by filling up vacancies.”

A number of solutions have been offered to tackle the issue, including the suggestion of reducing/doing away with court vacations. Here is Justice Ahmed’s opinion on that:

“I am opposed to that idea, personally speaking. Somebody should sit with a judge who works, and you will realize how easily he can get burned out. Fortunately, I didn’t get burned out, but the fact is that I have had 80-150 matters on different topics on my board throughout my career. That is a hell of a lot of matters.

“If you take away or reduce the vacations, what are you turning your judges into?”

You read those matters, go to Court, hear arguments all day, and at 4:30 you get up. After that you try to formulate ideas for judgments you have reserved. Then you need time to dictate those judgments, correct them, pronounce. All your weekdays and weekends get consumed by this. So, if you take away or reduce the vacations, what are you turning your judges into? You can’t have quality judges and this kind of disposal at the same time.”

So, how can lawyers and judges contribute towards trying the stem the flow of pending cases?

“There must be a change in mindset vis-à-vis adjournments. Lawyers on both sides tend to accommodate each other. As a result, court time is wasted. Even when one lawyer opposes an adjournment, the dialogue takes up say 3-4 minutes. Suppose there are 20 instances like this in a day, you lose 80 minutes in a day. Both the judge and the lawyer who has come prepared, lose time.

Lawyers, particularly in final hearing matters, should be given a time schedule to argue. I tried that as an experiment in some cases, and it worked very well. But that can only happen if there is co-operation between the Bench and the Bar.”

The problem, Justice Ahmed says, lies in failure to ensure implementation of existing laws. The Civil Procedure Code (CPC) rule capping the number of adjournments in a case is hardly followed at all, in his experience. He shows the problem judges face while trying to implement this rule.

“If I have 80 matters listed for a day, it is not physically possible to hear all of them. I know that there will be at least 10-15 matters where people will argue seriously. If someone stands up and asks for an adjournment, I will agree, because there is someone who has come prepared to argue.

You need to reduce the number of cases heard by a High Court judge in a day to not more than 10-15 cases. Then, he can be very strict about adjournments. It is then that you will be [able to] adhere to the CPC norms. The problem with this country is that on paper, we are top-class, but in reality, we are completely divorced from what is on paper.”

Stay tuned for Part II of the interview.

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