Justice Sanjay Krishan Kaul has been in the news lately, demitting office after a long and distinguished career, spanning over 40 years, both as a lawyer and a judge. He has given extensive interviews to mainline media, both print and online. Our conversation took almost 90 minutes, spanned across subjects and concerns, as we kept ourselves out of the complexities of the law. We were hard pressed for space, limiting this text to the basics of his opinion, on how India needs to move on.
You have behind you a very, very distinguished career, both as an advocate and as a Chief Justice in several states, and then as Supreme Court second in command. Some learning out of all these years which you want to share, just top of the mind, two, three things which could be your and our learning?
So, look I believe this is both the legal profession and the judiciary is something you have to really enjoy. That’s how I say it, to be able to carry it on, maybe possible for most professions to be able to do it, as well. But at least for me, as a lawyer, I spent 19 years as a lawyer, almost 22 and a half years as a judge. I was not a person who had planned to come into the profession. But I have enjoyed what I have.
On the learning part, I think one of the great challenges of the judiciary is that we take too much of time and as the society has progressed with more technology in other fields, we can’t expect people to wait for this long. So, how to get justice quickly and solve the dispute.
If you look internationally, I don’t think there is any country where this is the volume of litigation which courts face.
So, we have a problem of the judge litigation growth ratio, which has been talked about many times. But still very low. And then you have, especially with the American system where they take many cases out of the mainstream to alternative methods of resolution of dispute. Less than 3% cases go to trial. In India, 99% cases go to trial. We also have many tiers of scrutiny. So how many tiers of scrutiny should a case go through in a matter of time.
Is there a solution in sight?
I trained myself as a mediator, also when mediation was set up in India. And I feel that’s the way forward because a lot of issues need to be addressed by the parties with the facilitator rather than everything going to court. If you look from the social context where the socially and economically weak sections of society are involved, especially the National Legal Service Authority, which again, I got an opportunity to head for more than a year, has played a stellar role.
Between mediation and national legal service authorities, I think a greater role has to be played so that everything doesn’t go to court. But one of the major challenges, how, how does the government decline its litigating tendencies. Because more than 50% litigation in India is by the government or government bodies. Now, they must also look to a more practical view rather than litigate everything.
Any steps towards strengthening the alternate avenues?
Where government is 50% litigator, there should be mechanisms where the government reduces the litigation. That can happen. The people in the government should accept that if a verdict is given by the court at the next level, that should be fine, rather than carrying it through. But there’s a little reluctance from the bureaucrats on this issue. And I think the reason is that some of them have found themselves in trouble in later years of their service.
So, it’s more a defence mechanism?
It’s a defence mechanism, therefore maybe some kind of a committee or something to analyse what kind of cases should go further can be an important step in this. Alternative dispute resolution, yes steps have been taken.
We have to devise an alternate method, not only because we want to reduce litigation, because I truly believe it’s a better system to resolve disputes. See, a litigant is not in control of the litigation. You will be decided according to certain parameters, which are laid down in law. You may get something which you really want or not, is not relevant. So, a mediation provides a negotiated settlement. So sometimes a perspective can be had of what you want, what the other side wants. And the structured mediation system, which we have tried to adopt and other parts of the world now practice, is that the mediator is a trained person who does not limit. Sometimes it can also be a family elder or somebody like that. In the structured mediation, there will be sessions, joint sessions. There will be individual sessions. So, you can disclose things in confidence.
Is the institution of the mediator already in place?
There is an act now. We were signatories to the 2019 convention in Singapore. It has taken us time, because of covid. It’s only in 2023 that this act has been passed. Finally.
So well, when you train as a mediator, I think the best example is what they give when the training begins, which is the difference between litigation and mediation? So, they would say, well, if there are two parties and each has a half share, the judge would cut the oranges to be divided half and half and give it to them. But mediator would look into what one needs. If somebody wants to make a marmalade out of it, another wants to make a juice out of it, one can have the rind, the other the pulp.
The mediator is essentially a lawyer, but it can be a non-lawyer. But lawyers, a lot of them are getting training. This has been happening for now almost 15 years in a sense, but at different levels.
Could it also be that many decisions in the lower courts are not fully satisfactory?
There’s a structured legal system to give justice at the lower court level. Now, since we have different layers of scrutiny, any litigation, somebody has to succeed, somebody has to fail. That is the job of a judge. One party will always be unhappy. So, this party goes to the next level, then to the next level. So that’s the nature of litigation and nature of the problem, which exists.
The other problem is that each state does not have the same problem. There are different problems; for example, in, one court, criminal appeals and bails may be a major workload. When I came from Chennai in 2017 to the Supreme Court, murder appeals of 2016 were being heard.
When we talk about the three pillars of democracy, each holding on to its own shall I say, independence in such a way to keep the pillars intact in the democracy, is there also some kind of a push towards understanding each other? There is the constitution and the popular will. So, we as a nation, keep moving. You used an expression in the Article 370 abrogation case. That it is time to move on. So, in many of these situations, is there also time to move on and find how the nation will move forward?
The constitution envisaged a democracy. We accepted democracy, and we chose a particular method. That method was adult franchise with equal vote to everybody. And the first past the poll principle, whoever crosses the line, in a sense, in an electoral battle, succeeds, often governments have been with 40 to 50% votes. There are nations which say no, they must have proportional representation. Now, since it is first passed the pole, of all the judiciary is supposed to be, is a check and balance in the system. In coalition governments, the balance arises more internally because it is not one party in power, and some issues need to be sorted out. The pressure on the judiciary would be less. When single majority government is in power, they feel we have the electorate authorization to carry on the government, which is the way it wants, certainly on policy decisions, that it is the government which has to take a decision.
But there are certain fields where there is a check and balance by the court, whether it meets the touchstones of the various parts of the constitution. That is where the role of the judiciary comes in. Now, in that role of the judiciary always there will be more pushback when majority government is there because they feel they have a greater authority to do so.
But is there a converse understanding in the judiciary of the implications of what they decide upon? Like the ramifications of decisions they take, understanding them beyond the limits of the constitution?
Let us understand, for example, always the election commissioners have been appointed by the government. That is how the system worked for so many years. Now, whoever comes to power would like to appoint one. Whoever is out of power would feel, there should be more check and balance. And since there is no law on it, and law was required to be framed. So, in the absence of any law, they created a structure whereby you had the Prime Minister, there was the leader of the opposition and the chief justice. The parliament has now brought an act where the first two are there, and the third is the nominee of the Prime Minister.
That means only that in such a situation the government is only seeking to centralise its hold more and more over key positions?
So, the government says I have the entitlement, and I have the majority in parliament to get the law through, and I am getting the law through. So especially where the opposition numbers are small, it becomes difficult for the opposition to keep a check in parliament. And that’s where I have said, we are not here to play a role to support or oppose the government, to support or oppose the opposition, in that sense. We are not here to deal with political matters, but we are here to deal with legal matters. And there can be political legal matters, so long as there is a legal ramification, we will deal with it. Of course, in a more majority government, checks and balances are a little more carefully done, because it is difficult for the opposition to play a role the way they would like to.
In the case of the gay rights, the government contention was that socially gay couples are not acceptable in society. And you said you would like to provide that freedom that gay couples need as their rights. But after having made those pronouncements, you let your verdict slide along with the government view that society is not ready yet to accept them.
So, I will put it in different way. It is a social issue. Undoubtedly, everybody knows it. There was a process of de-criminalisation, which took place, right? Which also went up and down, up and down. And finally, a consensus was built where even the government did not seriously oppose the de-criminalisation of the same sex relationship. This later case, was by that community, a second endeavour, an advanced endeavour to see that if they are living together, there’s some kind of an institutional recognition for it. Now, this may be for adoption, this may be for inheritance. So many different things. So, when this came up, ultimately, the Supreme Court decided to take it up. Now, it was made clear, it has also many religious ramifications, because marriage is a religious institution, right? So, there will be different perspectives, and therefore the court confines its role, really, whether there is a special marriage act to deal with, with interreligious marriages and things, and whether such relationships can fall or be controlled under the Special Marriage Act.
Now, none of the five found it feasible, but two of us, who were in minority, felt that a civil union could work. So, you give it a label, it may not be a marriage label. So civil union, I said, is the second side of the same coin.
And then the government must work out methods for dealing with their right of adoption, the right of inheritance. Ultimately, legislation was the answer. Even the government said, so special categories need legislations. But again, since there was no legislation, two of us thought that you create a working space till that legislation comes. But three of us did not agree. They said, no, this is not an issue which we can get into. So, it was a 3-2 verdict, and ultimately it was left to the government or the legislature to make law and choose.
Now, these things happen. It’s a minority judgement, it’s also sometimes a cry for the future. Maybe ten years down the line, five years down the line, social thinking may be different. Conditions may be different.
The government felt the society is not ready for it. Now, society is what? India is more diverse than the whole of Europe. Culturally, language wise, food wise, such divergent different sections of society need different protections.
You have said quite vehemently that you want to go and enjoy life. You want to get into hospitality. I sense a political future, given the kind of eminence that you have enjoyed, would lend itself to a prominent political career where people will look up to. I think the country also needs more people with your background in politics.
I have been open about it. I have not been completely reclusive. I have interacted with society. When I speak, I speak judicially also quite openly. So, when I said that we have constitution protection, we should be bold enough. We should be able to say what we believe is the correct position in law and where we stand. Incidentally, I did little bit of politics in my law faculty days; I did make a try, I messed it. I realised I am not meant for it. And at 65, you have certain parts which you want to carry. I am not a hotelier, but I have a property and I would like to help in, in keeping a legacy, how to keep it, how to get the family also back to the roots and keep a continuous association.
You have also mentioned in your judgement, the need for a truth and reconciliation commission. Are both words equally operative, or can we take the truth as unelaborated, as more difficult, and accept reconciliation based on acceptance of whatever the truth was.
I don’t believe reconciliation will be possible without recognition of the truth. There’s a whole community, four and a half lakh people who were practically thrown out under the circumstance. Now, they may settle lives elsewhere in India, abroad. I know they’re not suddenly going to go back to the state, but they want to connect with your roots. That much space should be there. And they are fully secure in where they are now.
Then, we were fighting almost a war. So, the army moved in, para military moved in. Whenever war occurs, there are collateral damages. So, it happened on the population which was living there.
Therefore, what transpired during those years needs to be giving a balm touch. We can’t say ignore history. You could learn from history.
Part of Kashmir today, which feels also seeking a similar truth and reconciliation is the Muslim community, which, which feels wronged by the state operators.
So, that’s why I said in my order also, I am talking about both non-state and state actors now, and that’s why I gave the example.
On the other hand, after the abrogation, there is also the fact that you have had four years of relative improvement in the lives of an ordinary Kashmiri. This would mean largely the majority community there. Their lives have improved!
So, there may be political people who will still believe that no, this is not the correct decision. They are entitled to their view; they may campaign in whatever way they want.
But so far as the social displacement of people and the sufferance of the population, which stayed there was concerned it will be an acknowledgement of who all suffered in what manner and helping assimilation of the points of view and the society not in the same manner as it existed earlier, because people are not going to just leave their lives and come back.
Has there been any response from the government on your idea?
I didn’t expect immediately a reaction because we are in an election year. But there are people outside, et cetera, who have been happy that somebody has talked. And intrinsically when I have been going, now every year there, as you say, I have seen a change of people who are acknowledging that a reconciliation commission is necessary.
I stayed in my own family house after 34 years. After 1989 for the first time this summer, I stayed two weeks there, I got to know my neighbours better, whom I knew family-wise, but would not know the current generation.
Now because of this G20, lot of development has taken place around the river (my house is on the Jhelum). So, there is a cycling path, a walking path, my children would take their dog out for a walk at even as late as 11 o’clock at night. There were people just walking there, local people, tourist people walking. How many places can you walk like this and go?
Until 1989 I could go there, go to my orchard, life was most peaceful. Then, something must have been brewing, which neither politically was judged or maybe our seclusion, from my personal perspective, was not able to judge what was happening.
With all that kind of upheaval, flux, even in our country, elsewhere globally, 2024 is going to be an even more of a tumultuous year. Regardless of which party wins or loses, it is going to be a year we have to watch and tread carefully. So, it is very important for our three pillars to stay united somehow, we need to work with a minimum common programme, so that we stay united. So, any thoughts from you on that?
I would fully agree with you. I feel a more powerful government needs to make an effort to carry the other political thinking with them. And the other political thinking also must learn that if they have not succeeded, then the average public somehow is not in sync with them at the moment. But there are common programmes. So, so earlier foreign policies, issues like this, defense purchases, in earlier times there were there were commonality of intent. So, there should be something on which there should be agreement. When there is a disagreement on everything, that you may disagree on five things, doesn’t mean you must disagree on all the 10 things.
Also, the manner of dialogue needs to improve. That is very, very important today. I have seen earlier parliamentary debates of the earlier days, they have simply gone out of our lives. I said that as a student who passed from university and college in late seventies, it was emergency time and the post emergency time, I used to admire the way people like Vajpayee ‘sahb’, used to debate in parliament and many other, you see before that, they used to say things, but say it in a manner with a little bit of humour and convey the same thing.
We are faced in competition with nations which don’t have democracy. And democracy is always a challenge. It is far easier in a unified leadership to decide what has to be done, where democracy does not exist. So, you say such countries are developing faster. Well, democracy’s own challenge is because you can express your opinion. Somebody may say it should not be disruptive. But yes, it doesn’t have to be disruptive, but there is always a different point of view. And democracy is a consensus building exercise.
Do you see any of that happening the way it’s going at the moment?
I’m finding it difficult to see it going that way. And as I say, everybody wants to speak. Nobody wants to listen. Another problem is that between your Twitter and other social media accounts, people want to have a point of view on things which they really don’t know nothing about. It is the in-thing to talk and express your opinion. But the question I pose to myself, is somebody listening, also listening to the other point of view, listening is equally important as speaking.
ABOUT
Justice Sanjay Krishan Kaul is a product of St. Stephen’s College and Delhi’s Law Faculty, spent over 40 years in judiciary both as lawyer and judge. He retired last month as a judge of the Supreme Court.
