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The Justice Mohit Shah Interview!

Published on Sat, Oct 03,2015 | 17:59, Updated at Sat, Oct 03 at 19:09Source : Moneycontrol.com |   Watch Video :

A sprawling colonial bungalow in South Mumbai’s Malabar Hill, houses the state’s highest ranking judicial officer. Chief Justice Mohit Shah has been its resident for 5 years. In that time, he presided over several important cases ranging from complex commercial matters to issues that Mumbai holds dear - raising the height of railway platforms and clearing cartoonist Aseem Trivedi of sedition charges. Chief Justice Shah retired in September on turning 62. That he missed an elevation to the Supreme Court is a controversy he prefers not to talk about. The Hindustan Times claims that the Supreme Court collegium found him and two other judges - Bhaskar Bhattacharya and Barin Ghosh not suitable to hold the office of a Supreme Court judge. More recently, Supreme Court senior counsel Dushyant Dave wrote two open letters to the Chief Justice of India criticising Justice Shah’s handling of certain cases. Dave opposed any possible elevation of Justice Shah. The mild-mannered judge won’t comment on either story so instead, CNBC TV18’s Menaka Doshi spoke to him about judicial reform, the selection of judges and whether the national judicial appointments commission is better than the collegium system?

Shah: Since the NJAC is under challenge before the Supreme Court I would not like to offer my comments. However, let me start right from the cadre of Civil Judge Junior Division upwards because our judicial system is concerned as much with the appointment of the judges at the lowest rung as with appointment of judges in the Apex Court. Like appointment of Civil Judge Junior Division, three years back when we tried to make appointment to about 100 posts of Civil Judge Junior Division, we hardly got 52 candidates who could qualify, who were found to be competent and suitable for the post.

Then we realized that something has to be done about it so at one of the conferences organized by the Bar Council of Maharashtra and Goa, I appealed to them to conduct training classes for lawyers aspiring for judgeship with the result that this year the Bombay High Court could get as many as 224 judges for the post of Civil Judge Junior Division. So, I think positive role to be played by both the bench and the bar will help us in filling in those vacancies.

Next going to the cadre of District Judges, earlier we had a system where lawyers practicing in the City Civil and Sessions Court in Mumbai and those practicing in the Metropolitan Magistrate Court, they would be considered and they would be appointed as City Civil Judges or Metropolitan Judges. They were not transferable so lawyers were ready to join as City Civil Court Judges or as Metropolitan Court judges. Thereafter the Shetty Commission recommended and the Supreme Court accepted that recommendation that there should be a merger of the cadre of District Judges and the City Civil Court Judges with the result that the judges of the City Civil Court also became transferable.

So, the lawyers in Mumbai practicing in the City Civil Court and the Metropolitan Magistrate Court stopped applying. So, that important source of recruitment has dried up. The consequence is that the lawyers who were conversant with the complex litigation issues of Mumbai are now not available as judges. Therefore the judges coming from other districts of course they are not as conversant with those complex issues, we are giving them training but they need some more time and after a few years they get transferred; after three years. So, this is one issue which I want to emphasize that in a vast country like India with so many diversities, it is not necessary to look for uniform solutions for all the states.

Doshi: What specific solution would you recommend?

Shah: I would suggest that there should be a rethink on this question of merger of cadre of city civil court judges and the district judges, that could be given a rethink.

The other issue is that there are many lawyers who are very competent. They are ready to accept judgeship but they do not want to face this competition of competitive examination and the fear of being rejected. Suppose the lawyer who has been practicing on the civil side for 20 years, 15-20 years, he may not be conversant with the criminal laws.

Doshi: What would be the solution to that to create some level playing fields so to speak? How would you exempt them from examination?

Shah: We can conduct their selection process only to test the suitability in civil laws, they may be appointed as city civil judges and they can handle civil work.

Doshi: What about the senior judiciary?

Shah: As far as High Court is concerned, under the old system, it was the High Court Collegium which used to make the recommendations and thereafter the Supreme Court Collegium would finally make recommendations which would be binding on the central government. But there also, I feel that as far as recommendations made by the Bombay High Court Collegium are concerned, by and large, they were accepted. There were a few cases where because of some adverse Intelligence Bureau (IB) report, the Supreme Court Collegium may not be inclined to clear those names. It so happened in one case that the collegium returned some names on the ground that there was some adverse IB report. So, I requested the then law minister to share some inputs in case we have an answer for those findings in the, so called findings in the IB report, we can clarify the position because the judicial officer was known to be a very honest and competent officer.

Fortunately, the then law minister, shared some inputs with me and we sent a four page letter, minutes of the Collegium, High Court Collegium running into four pages clarifying all issues and that judicial officer came to be elevated as a High Court Judge, as an additional judge and then became a permanent judge. But, when a similar situation had arisen earlier, the predecessor law minister did not share the inputs with me. Therefore, we lost a very good lawyer candidate.

Let me just give you one illustration. Like it is said about judge of the Delhi High Court that when his name was recommended by the High Court Collegium, there was an adverse IB report against him that he is a boozer, and when some Supreme Court judge shared the information with the Chief Justice of the Delhi High Court, he pointed out that the man is a teetotaller, but because in his college days also he was a teetotaller, his friends used to tease him as a boozer. And that is how the report went that he was a boozer.

Now, this fact had it not been brought to the notice of the Chief Justice of the High Court, he would not have been able to clarify it. So, this is a very important issue, the role to be played by the Chief Justice of the High Court in this consultation process.

Doshi: So, let me ask you, the National Judicial Appointments Commission (NJAC) solution, to the collegium system which many judges and Chief Justices of High Courts and Supreme Courts have admitted is flawed, needs more transparency, etc. But, the NJAC solution seems to gone the other extreme. I am not asking you to suggest what the Supreme Court will decide. I am simply asking you based on your 20 years in the judiciary, what system do you think is better suited for India in the current circumstances?

Shah: Let me not deal with the NJAC issue. I would just point out about the system which was prevailing before the NJAC amendment was made. Article 124, Clause II says that every judge of the Supreme Court will be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the states as the President may deem necessary. Now, consultation with such of the judges of the Supreme Court as the President may deem necessary. The 1993 Supreme Court judgement said that the consultation should be with the Chief Justice of India, four senior-most judges and the judges from that High Court, the Supreme Court judges who have come from that High Court.

About 10 years before that 1993 judgement, the policy was introduced that Chief Justice of a High Court should be from another state. He should not be from the same state. The idea was that person carrying or possibility of person carrying local biases and prejudices should not become Chief Justices of that High Court. So, now, when a person goes out as Chief Justice of another High Court, and thereafter when he goes to the Supreme Court, do you think that the biases and prejudices will disappear on assuming that other office because Justice AK Patnaik has gone on record as to what happened why his alleviation was delayed. I need not go into that, he has gone on record. So, also Justice Bhaskar Bhattacharya has gone on record indicating what happened.

So, the judges from the same state can play a role which may sometimes become decisive. Secondly, Article 124-II also said that the President may consult such other judges of the High Courts. Now, that 1993 judgement did not deal with this provision. Probably, there was no process of consultation with the judges of the High Courts from which the concerned judge or Chief Justice was to be alleviated to the Supreme Court. So, that is something required to be reconsidered on that issue.

Doshi: If the NJAC system were to prevail, do you think that we would have better, more effective selection of judges to the Senior Judiciary?

Shah: It has to be tried out.

Doshi: There are over 2 crore pending court cases across India of which 29 lakh cases are pending in Maharashtra. That is less than the 41 lakh cases five years ago. Bombay High Court chief justice Mohit Shah says that during his term the number of pending bounced cheque cases also declined from over 6 lakh to 57000.

Shah: Appointment of more judges is one solution but mere appointment of more judges is also not going to solve the problem. We have to realize that to deal with such a heavy backlog of cases particularly civil cases, we will have to go for Alternative Dispute Resolution (ADR) and ADR has not quite succeeded in India because we call it Alternative Dispute Resolution.

The trial or the court battle is the main or the right solution and the others are alternatives. Actually I would like to call them appropriate dispute resolution mechanisms.

Doshi: Mindset change, appropriate dispute resolution, you have not yet spoken of case management.

Shah: That is also equally important because people would not like to go for other appropriate dispute resolution (ADR), if a defendant who does not want to pay any money to the plaintiff although he owes the money to the plaintiff will not like to go for any of these ADRs because he would rather wait and let the court process take 20 years. So, the courts should exercise this discretion that where litigants are not ready to go for appropriate dispute resolution, their cases should be heard more expeditiously and given more priority so that a dishonest litigant does not get the benefit of delay in court processes.

Doshi: We have seen some efforts in putting in provisions for case management when it comes to the commercial courts bureau. And yet, when I talk to lawyers, they are sceptical of any of those case management provisions working because they simply feel that judges are overworked. They have a 100 cases everyday to deal with, how are they going to devote time to a particular case and finish it speedily when there are 99 other cases pending in the day. Every solution we talk about sort of seems to be part of a vicious cycle that takes us back to either the shortage in the number of judges or the shortage in the number of courts.

Shah: There is one problem I think is not being addressed. 80 percent of the work is with 20 percent of the lawyers. So, even when there are more judges, the lawyers would not be attending all the courts because they will see they are busy in other courts, so it is high time that we encourage junior lawyers to come forward and argue cases. If this happens, then once this issue of 80 percent cases remaining with 20 percent lawyers is resolved, that will also be a significant step forward.

Doshi: Is this ever going to get fixed or in India justice delayed is justice denied is going to be the refrain for 10's of years from here on as well?

A: Let me clarify this issue. For instance, I have the statistic to tell you that in Maharashtra, out of about 29 lakh cases, as many as 60 percent cases are less than two years old. Another 20 percent cases are between two and five years old, so 80 percent cases are less than five years old. So, the people whose cases get decided early, they do not go and tell the rest of the world that their case got over in two years or three years. The remaining 20 percent cases, the litigants whose cases are not yet decided, they will of course, there would be justified in making a grievance that their cases, the courts are taking too long for deciding the cases. So, we must also consider this that there are a large number of cases which are being decided within reasonable time.

Doshi: Let me put the question to you this way. If the government, whether it is this government or any other government, if the government decided to spend more money setting up more courts, training more judges and I grant that it would be five to ten year process, but if they did that, do you think that could be the biggest way to resolve this issue of pendency and that without that all other measures are small measures significant but not making a big dent in the problem?

Shah: I would agree. For instance, let us say, take the metropolitan magistrates in Mumbai, there is a pendency of about four lakh cases, we have more than 70-80 metropolitan magistrates in Mumbai alone. But, we want to have more metropolitan magistrates in Mumbai, but there is no accommodation for them in places like Andheri or Dadar, we requested the State Government to provide more accommodation, that is not forthcoming. I believe in the fourteenth finance commission, a lot of provisions are now made for the infrastructure and other requirements. The difficulty with the thirteenth finance commission recommendations was that they provided for grants under various heads, such as morning and evening courts. Now, the judges who are already over burdened with work during the regular court hours, if they are also asked to work in mornings and evenings, it was causing a lot of hardship to them. So, we could not spend substantial funds from the grants available under the morning and evening courts. In fact, more than Rs 250 crore or Rs 300 crore lapsed because of this.

Doshi: So, the other problem is that governments, whether they are state or central governments are not speaking to the judiciary and understanding this.

Shah: I think the High Court should be given more financial autonomy also, not only the funds, but also the financial autonomy so that wherever they consider appropriate, the funds can be spent expeditiously. At present even when the Central Government provides grants, the grants are provided through the state government and whenever any proposal is made by the High Court, then the State Government would take time to process the proposal and deal with it the same way as the funds are coming from the State Government with the result that the process gets slowed down.

Doshi: You have spoken in the past of how the Chief Justice of a High Court ought to play a far more enhanced administrative role as opposed to a judicial role in that sense in terms of unique cases, etc because then he or she can devote his or her time in actually managing court processes and ensure that the court is working to its optimum level.

Shah: Somehow the expectations of the people within the system is that the Chief Justice whether he is a Chief Justice of the Supreme Court or Chief Justice of the High Court should do as much judicial work as the other judges are doing. So, they should do full time judicial work from 10:30 AM to 4:30 PM or 11:00 AM to 5:00 PM. I don’t think in any other country the Chief Justice of a High Court or a Supreme Court is supposed to do as much judicial work as the other judges or doing. In almost all other countries the Chief Justice of the courts at whatever level spends more time on administration then in judicial work.

Doshi: I want to come and talk to you about and in part of the judicial reform processes also, the perception of judges post their judicial tenures. We have had a couple of controversies in the recent past especially more recently when a Supreme Court Chief Justice was offered the position of governorship of the state and he accepted it. And questions were raised therefore as to whether this is the best way to preserve the independence of the judiciary? Where do you stand in this debate?

Shah: I think it is or each individual to decide whether he would like to go for such an assignment or not. Speaking for myself, I already made it clear that I do not believe going for such an assignment after retirement.

Doshi: Is that based on your principle position that you do not think that Chief Justices and judges, Supreme Court judges should not accept such positions?

Shah: I believe that there should be some cooling off period before accepting any such appointment which does not involve any adjudicatory work or any legal work like the Chairman Law Commission for instance is supposed to give reports on law reforms. So, for such an office, of course, there need not be any cooling off period, but for offices which do not involve any such legal work. Cooling off would be a good idea.

Doshi: Since you speak so fondly about your five years in Bombay High Court, what you consider your unfinished agenda there?

Shah: Appointing more judges to make strength of 94 judges, having more infrastructure and giving the judges little more space to deal with the backlog in their own imaginative way. Right now the judges are so overburdened that even if they want to make some experiments, they do not have any room to make those experiments. So I wish with more judges available to the Bombay high court the judges can work effectively.

 
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