“This whole thing about ‘judges making judges’ is off the mark” – Vikramajit Sen J.

Vikramajit Sen, who retired on December 30, 2015, spent a little over three years as a Supreme Court judge. Appointed as a permanent judge of the Delhi High Court in 2000, Sen J was made the Chief Justice of Karnataka in 2011. Exactly one year later, he was elevated to the Supreme Court on December 24, 2012.

In this interview with Bar & Bench’s Pallavi Saluja, Sen J. talks about his decision to take up law, judges appointing judges, and much more.

Pallavi Saluja: Why Law? 

Vikramajit Sen: When I was about 10 years old, my father and I were driving under Hardinge Bridge (now Tilak Bridge) and I saw this nice, imposing building. I asked him what it was and he told me that it was the Supreme Court of India. So I asked him, ‘What do they do there?’ And he replied that it was where lawyers argued their cases. I thought it would be an interesting career choice.

I went on to study at St. Stephens and later got into Law Faculty. I had two teachers at Law Faculty who were from Yale; they wrote such glorious recommendatory letters. At that time, Yale confirmed my admission, which was unheard of in ’73-74. But I never ended up going there.

Perhaps if I had gone, like all my other friends, I probably would have settled in the US.

Pallavi Saluja: Did you always aspire to be a judge?

Vikramajit Sen: The first time I entered a court was when I became a lawyer. I remember thinking then that I would make a lot of money and have a lot of cars!

However, I found that juniors were not treated with respect; sometimes whatever a senior said was just accepted. And this was where the disenchantment came in; I didn’t want to just make a lot of money by making a fool of the Bench or getting a wrong decision on facts.

Of course, you can only be happy on the Bench if you know why you are doing it. It helped that my family backed [the decision]. I think it is far more satisfying to be on the Bench, and I wouldn’t have had it any other way.

Pallavi Saluja: How did it all happen?

Vikramajit Sen: I was arguing a case in court 1 of the Supreme Court. The then Chief Justice, [JS] Verma started discussing something with his companion judge, so I kept quiet. He wore these thick spectacles, so when he looked at you, you felt like you had done something wrong!

In the evening, I got a call from the opposing counsel. ‘What did you think of the hearing?’ he asked me. I said that I found it very irritating that they didn’t let me argue freely. He said that the Chief Justice was asking, ‘Who is this person?’, and it so happened that the companion judge was from the Delhi High Court, so he knew who I was. I later found that my name was being considered. Later that day, the CJI had told the Delhi High Court to send my name for elevation to the Bench.

Pallavi Saluja: Judges making Judges

Vikramajit Sen: Recently I spoke about a lady lawyer who we had heard for a week or 10 days (and not a male lawyer as was reported). I was sitting with CJI Thakur and after some time, Justice Thakur turned to me and said, ‘Who is this person? We should consider her for judgeship’. I told him that I agreed entirely and that I would find out. Unfortunately, I found that the lady was too young to be elevated.

The point I’m making here is this whole thing about ‘judges making judges’ is off the mark. In my case, the CJI didn’t know who I was; he had to check with his colleague. And in the case of this very bright lady, who I’m sure will get elevated, neither of us knew her.

Pallavi Saluja: So you agree with the decision of the Supreme Court?

Vikramajit Sen: I think the decision was right. The collegium system may not have been part of the Constitution, but we are a common law country that has immense respect for precedents. Initially, there might have been a little extra stepping-out, for the right reasons. Whoever is at the helm of power, whether it is the present party or the previous, they all knew that at that time the appointments were not the best and they were bad for totally oblique reasons. So, naturally, the courts had to react. I think the judiciary should be left alone!

The collegium system may not have been part of the Constitution, but we are a common law country that has immense respect for precedents.

There should be meaningful consultation with the government, which happens, because a lot of names are rejected by the government – sometimes rightly and sometimes wrongly. Gopal Subramanium is one such person. Nobody can say that as a lawyer, he did not fit the bill. But the government had its own reasons for axing his name.

Pallavi Saluja: Do you think age is a valid criterion for elevation?

Vikramajit Sen: I think age is a very valid criterion. In the High Court, you should not be elevated before 45. My name was being considered for at least 7 years before it happened. At that age, what I wanted to do was completely different; I would say, ‘I will fix that corrupt lawyer’. But when you get on the Bench, you have to be much more mature.

Pallavi Saluja: What about increasing the retirement age of judges?

Vikramajit Sen: As regards maximum age, I think all High Court and Supreme Court judges should retire at the same age. It should be increased to 70, and for the lower courts, it should be 62-65. It is a colossal waste to lose a man at 65. In 1950, 65 was an old age, but today it isn’t. If a judge’s health is fine and he is discharging his duties, he should go on till 70.

There is a lot of manoeuvring involved in coming to the Supreme Court. This should end. I suspect If there is a uniform retiring age, a lot of people will continue as high court Chief Justices, it won’t be so stigmatic. So you may then be able to pull out somebody who you perceive to be a dynamic judge to be elevated to the Supreme Court.

I think all of us accept seniority, in the sense that we would not like anybody to have the power to pull up a junior judge and let him overtake. Going and meeting senior judges, and canvassing your case should not happen in the judiciary.

Going and meeting senior judges and canvassing your case should not happen in the judiciary.

Pallavi Saluja: Pendency – the biggest menace

Vikramajit Sen: There are far too many appeals preferred to the Supreme Court; it is not postulated by the Constitution. If you have 80 matters to read per day, it is fatiguing. When our present Chief Justice said that there is very little job satisfaction, this is what he meant. It is a futile exercise, because 80-90% of the petitions are dismissed.

In the Supreme Court, you have a strong lawyer lobby. There was one Chief Justice who tried what is the prevalent practice in the US, where out of a committee of 9 people, you had to get 4 people to agree to a hearing, otherwise the case was dismissed. But there was a big protest when that was sought to be introduced.

We need to devise a system where we don’t have to hear so many SLPs, and judges will do more fruitful work. You will have time to look into conflicting judgments of high courts and develop the law.

We need to devise a system where we don’t have to hear so many SLPs, and judges will do more fruitful work.

As far as high courts are concerned, has the government hired a management consultant to see what should be the strength of the judiciary? To reduce pendency, what do you want to do? Do you want judges to throw out cases one by one? Those who do it are very unpopular. It’s like walking a tightrope. You have to give the counsel just enough time to make a point, if he doesn’t, out it goes.

There has to be more manpower. The population to judge ratio should be increased. So called developing countries in Africa have around 1 judge for 25,000 people. Here, it is one judge per 4-5 lakh, so what do you expect?

From the budget, we get 0.1% for infrastructure for dispensing justice, which is a sovereign act. The world over, it is about 6-10%.

Pallavi Saluja: You were chairing the panel probing sexual harassment charges against a MP High Court judge. What happens now? 

Vikramajit Sen: Why are you saying it in past tense? Whether the panel still continues or not is a moot question. My illustrious colleague on the panel, KK Venugopal is of the opinion that the selection on the panel is of a sitting judge, but it is not clear as to whether he continues after retirement.

So I conveyed to the Vice-President that this needs to be clarified.

[Editor’s note: Today the AG has given his opinion that Sen can continue but the Rajya Sabha Chairman is free to replace him].

Does sexual harassment occur? I’m sure it does. It’s not like the judiciary are saints. Society is changing and you have to start respecting women. There is a rumour that judges have stopped keeping law school students as clerks, but that is not true. My chamber was flooded with these students.

When I heard of the allegations against the Supreme Court judge, I was incensed. Was there any substance to it? I don’t know. There should be zero tolerance, it should not happen. The respective roles of a man and a woman in office have to transcend, and there has to be mutual respect, which I’m sure will happen.

When I heard of the allegations against the Supreme Court judge, I was incensed.

Pallavi Saluja: Why did you refuse to be appointed as Lokayukta of Karnataka?

Vikramajit Sen: I was asked by the Law Minister in Karnataka and it so happened that the very next day, the Acting Chief Justice rang me up, and I conveyed my consent. I was surprised that the party in opposition had also immediately given their consent.

Then I read a report which said that the Chief Minster was thinking twice about my appointment. I did my checking up and found that the reports were correct. That was out of line, since it was his own minister that asked me; I did not ask to be appointed. It demeans the office of the Lokayukta.

Pallavi Saluja: Post retirement jobs for Judges – Cooling off period

Vikramajit Sen: There are a lot of tribunals which were formed because they wanted to take workload off the courts. Can those tribunals function without a person of judicial experience? The jobs which are offered to retiring judges are onerous jobs. From 65-70 you are heading these tribunals without an exorbitant amount of money in your pocket. To look at that as a sinecure is totally off cue.

Pallavi Saluja: You have said that it is time for Section 377 to go.

Vikramajit Sen: It is clearly the province of the Parliament. Mr. Jaitley has said it is time and so has the Law Minister. The opposition has also agreed. The point I’m trying to make is that I have been against courts interfering too much in public policy. That’s what the decision of the Supreme Court said, that it was for Parliament to change the rules.

In the liquor policy decisions, that was the bottom line in our judgment. If Kerala feels that it can bring down the alarming consumption of alcohol to the detriment of families, why should the court look into it?

Pallavi Saluja: You are known to have a pro-women and pro-marginalised stance.

Vikramajit Sen: When I was head of the Delhi Legal Services Authority, I said that we should look for recruitment of lawyers who are doing a lot of pro bono work. There needs to be recognition of work done in this field, which unfortunately is not happening. The measure of a lawyer’s success is the amount of money he is making, that is totally off-key. A lot of people who are making money are not doing it scrupulously. There are a few lawyers who are working for the marginalised, but a respect for these people needs to be engendered.

Pallavi Saluja: You co-authored judgments with CJI Thakur 32 times. How was it working with him?

Vikramajit Sen: I find him to be a very knowledgeable man. Delhi High Court judges think that we are a cut above the others! We have a tendency to think that nobody knows the law more than we do. Justice Thakur didn’t have even a smattering of that feeling.

He knows the law, he can handle the court very well, he is extremely firm, and for these reasons, I think he will do very well. You have to know how to say no; that’s what most judges have to do most of the time.

Pallavi Saluja: Do you think judicial administration can be handled by a third party?

Vikramajit Sen: No, I don’t agree. But should they have help from outside? Definitely.

Only those people can watch over the functioning of the court who are not judicial officers and who can speak their mind. Of course, it should be supervised by the Chief Justice.

It’s not like we have not thought of it. The problem is how much do you pay them? These people are not going to come on meagre salaries.

Pallavi Saluja: What do you think about system of Senior designations?

Vikramajit Sen: This is an aberration. The US system is doing very well without senior advocates. So, the whole edifice should be removed. It has always raised questions of favouritism. Why should it matter which gown you wear?

Why should it matter which gown you wear?

The other part is that a lot of people who can’t afford these lawyers are compelled by the advocates-on-record to take a Senior Counsel. People who are undeserving hanker for it. To me, it didn’t make the slightest difference as to who was appearing before me.

Pallavi Saluja: Advice to young members of the Bar?

Vikramajit Sen: Work hard. It is a hard profession. When I started practice, the first thing that hit me was how little I knew. Sit in court where there are good seniors arguing, don’t spend too much time gassing with each other and having cups of coffee.