Closing reminiscences by Justice PN Prakash

After practising on the criminal side for almost three decades, I was elevated as an additional judge of the Madras High Court on 24th October 2013. The then Chief Justice RK Agrawal assigned me to the criminal side Division Bench presided over by Justice S Rajeswaran.

I was indeed very excited, because I was to play my opening innings on a familiar wicket. The cohort of cases before the Division Bench was not unfamiliar to me.

The first case was an appeal involving a double murder. I pored over the file and in less than fifteen minutes, I leaned over to Justice Rajeswaran and told him,

“Sir, this Appeal deserves to be allowed."

Rajeswaran J, a thorough gentleman, immediately responded by saying,

“Yes, brother, we will allow the appeal, you dictate the judgment; let this be your first judgment delivered on the very day of your elevation.”

I developed cold feet.

As a lawyer, I had only settled pleadings. I had no training whatsoever to dictate a judgment, that too, in a murder appeal. With trepidation, I said,

“Sir, I don't think I can dictate the Judgment in the open court, but let us reserve orders and then, I will prepare a draft and send it for your approval.”

He agreed and it fell on me to write the judgment. I was really at sea. Anxiously, I lay my hands on a few old law journals which I then pored over to acquaint myself with the structure and formulation of a judgment in a murder appeal.

Like a perturbed student wading through the pages in an open book examination, I slowly found myself coming to grips with the method of judgment-writing. I proceeded to dictate the judgment to my Private Secretary and then sent it to Rajeswaran J for his consideration.

In less than 24 hours, the draft was returned with his seal of complete approval. I heaved a sigh of relief and felt confident. Thanks in large measure to Rajeswaran J’s encouragement for the next three months, the Bench delivered several judgments.

Had he dampened my spirits, I am afraid I would have never honed my judgment-writing skills.

It is common knowledge that those elevated from the bar are not imparted any formal training on the most essential aspect of the judicial process: judgment writing.

It is taken for granted that we would assimilate this skill as the days go by. For most of us, felicity of expression and clarity of thought are traits acquired over a period.

The initial euphoria of my swearing-in subsided in two weeks. The after-effects of elevation started surfacing one by one.

Every evening, after court work, I felt dehydrated. As an advocate, I enjoyed a very peaceful night sleep. Dreams make the mind restless and consequently, the body also suffers tiredness. There was loss of appetite, despite which, my paunch was becoming pronounced. Pains in the neck and knees, and foot-swelling sporadically occurred.

I consulted a Naturopath who opined that after being mobile for fifty years, if one is to keep sedentary for long hours closeted in an air-conditioned room, his body metabolism will not be able to adapt to the environment immediately; besides, air-conditioners could cause dehydration and dryness of the skin. He advised me to sip water frequently even if there is no thirst; remove the shoes after ascending the dais, learn to sit erect so that the spinal cord does not suffer undue pressure on account of body weight; do walking, asanas and pranayama every day to keep the joints supple.

He changed my diet and advised me to reduce my rice intake. I religiously started following his advice and after about three months, the situation improved dramatically. By a process of permutation and combination, I zeroed in on the type of diet that was optimal for my work as a judge.

At the close of my first month as a judge, a staff from the “J” Section of the Registry brought a large sheet of paper containing various calculations for my signature. He then proceeded to explain that every judge is a “self-drawing officer” and that he could withdraw his salary by signing these papers.

In fact, it was only then that I knew that the High Court had a separate section called the “J” Section.

As an advocate, the portals of the filing, numbering, listing and copy application sections were oft-frequented hotspots. I never had any acquaintance with a host of other Sections functioning under the aegis of the High Court.

The clerk from the “J” Section then asked me as to how much should be deducted towards GPF? With studied seriousness, he recanted certain calculations via a formula known to him exclusively and suggested a certain figure, to which I implicitly assented.

He then explained the Dearness Allowance structure, House Rent Allowance, leave particulars and the perks, all of which, were Greek and Latin to me. This was because for the past 29 years, I had largely been my own paymaster. These perks and perquisites which were incidents of public office find no place in the economics governing the life of a self-salaried advocate. I nodded my head approvingly, firmly believing that the “J” Section clerk must have perfected his arithmetical formulations on the strength of similar advice tendered to scores of my predecessors-in-office.

At the end of all this, I wanted to do some self-learning, as I felt that one should at least have a working knowledge about the relevant rules that applied to these matters. My enquiries with the High Court Librarian led me to a book titled 'Supreme Court and High Court Judges Conditions of Service' authored by Justice H Imtiyaz Hussain, a former judge of the Jammu and Kashmir High Court. This book contained some primary information on the subject which helped me understand the nuances of the service conditions of Judges.

Soon thereafter, I was allotted a district portfolio, which meant that I was required to monitor the work of the judicial set up in a particular district. A large pile of files was then heaped on my desk.

These were files containing the individual dossiers of the judicial officers in my district and I was supposed to write the Annual Confidential Report (ACR) on each of them. Reading paper books during the hearing of the case is much easier, because you will have the assistance of the Bar. However, when it comes to ACRs, you are pretty much on your own. Every court in the district will have to maintain numerous registers and ledgers like the Register for Court Fees, Disposal Register, Repayment Register, Ledger Book, Valuable Property Register, etc.

If the district judge concerned does not properly inspect these Registers, he could be hauled up for dereliction of duty. The possibilities of substitution of case properties by the ministerial staff in the district judiciary cannot be ruled out. It may well be possible that they would have collected very less court fees in a given case for obvious reasons.

In petty cases, the fine levied by the magistrate should be tallied with the actual receipt of the amount. The district judge is required to regularly inspect and see that the accounts are tallied and regularly maintained. 

Before writing the Confidential Reports of the subordinate officers, we should be well equipped with the judicial and administrative working of the trial judiciary.

All my life, I had never written a Confidential Report for anyone. Though, essentially, I was a trial court practitioner, my experience had equipped me with knowledge of the judicial and not the administrative responsibilities of a district judge. As the head of the district judiciary, he has to handle his court, the bar, his peers, subordinates and staff in the court. An unenviable job indeed.

Finding myself inept at assessing the administrative ongoings in a district court, I sought the help of one of my colleagues, who had risen from the ranks, with a proven track record. He taught me how the performance of a subordinate judicial pfficer should be appraised objectively. He also appraised me of the usual chicanery that will be adopted by the staff of the trial courts to cover up their wrong doings. This valuable piece of advice stood me in good stead when I went for inspection to my district(s) in later years.

I narrate this as, in hindsight, I consider that mere classroom lectures in the judicial academies do not fully equip our Bar judges in the High Court to handle their varied judicial and administrative responsibilities.

Settling issues and framing charges with the aid of Sections 34 & 149 of the Indian Penal Code (IPC) is an art by itself which can never be learnt in a classroom.

If issues in civil cases and charges in criminal trials are settled satisfactorily, 50 per cent of the problem stands solved.

The problem we face today is that judges are forced to hone their judicial skills in areas that they are not acquainted with. Some pull through and some flounder. The larger point is that the case of a litigant, however big or small, should never be an experiment at the hands of a judge who is not acquainted in a particular area of law.

The State has a fundamental duty to ensure that it gives quality judicial service to the litigants. While assessing the credentials of a candidate for elevation, there is copious material to assess the judicial skills of an elevatee from the ranks.

A politician is always under test throughout his career and people can reject him at any time. A civil service aspirant undergoes rigorous training for cracking the UPSC examination and after selection, he is initially appointed as a sub-collector and comes to the level of Secretary to the government when he is around 50-55 years.

Bearing all this in mind, I have often pondered as to the benefits of a judge elevated from the Bar being requested to equip himself with the working of the Principal District and Sessions Judge in a District for a minimum period of six months without prejudice to his seniority as a High Court judge.

During the training period, he can even be permitted to enjoy the salary, perks and all the benefits attached to the office of a High Court Judge.

Personally speaking, I would have wholeheartedly agreed to do this, for if a High Court judge-designate sits, even temporarily, as a Principal District Judge, that itself will not only galvanize the district judiciary, but also the district administration, both Revenue and Police, in that district.

The trainee will have the opportunity to practically understand the travails of a Principal District Judge and the tension he undergoes even for a small thing like appointment of a sweeper in the court. There can be no better training than experience.

Of course, I am aware that this suggestion may not find immediate acceptance and there will be both valid and frivolous objections to it. Nevertheless, we can debate the pros and cons dispassionately.

There is yet another convention that prevails in our system which has often perplexed me. My first thoughts on this go back to the day of my own elevation. I was sworn in along with other judges, who were being elevated from the district judiciary.

I found that these district Judges were not only senior in age, but they were also senior to me in terms of enrollment and the number of years they had served in various judicial capacities across the State. Yet, for some strange and inexplicable reason, these district judges were placed below my name in terms of seniority.

I enquired from several jurists the reason for this puzzling convention. None was able to satisfactorily account for this until I stumbled upon certain literature on the legal history of our Court.

Prior to the assumption of administration of India by Queen Victoria in 1858, there were two streams of courts: the Supreme Court in the Madras town and the East India Company courts in the mofussil. The Sudder Diwani Adalat was at the top of the hierarchy of the Company courts. The Indian High Courts Act, 1861, abolished the erstwhile Supreme Court of Madras and the Sudder Diwani Adalat and merged them into one monolithic institution called “the High Court of Judicature at Madras”.

The Act empowered the Crown to issue Letters Patent for the establishment of the High Court. Accordingly, in the first Letters Patent issued by Queen Victoria on 26th June 1862, the inter se seniority between the judges of the erstwhile Supreme Court of Madras and the judges of the erstwhile Sudder Diwani Adalat was fixed by keeping the former Supreme Court judges, who were barristers, en bloc, above the former judges of the Sudder Court, because the latter were not barristers, but mere Company servants, though some of them had unquestionably excelled as judges.

This practice has now become an established constitutional convention so much so that, even after the coming into force of the Constitution, we treat the judges from the District judiciary as Sudder Court judges and those from the Bar as barristers and keep the former, en bloc, beneath the latter in seniority. Where is Article 14?

Superadded, in order to keep the district judiciary divided, we recruit district Judges directly and create a wedge between them and the promotees perennially.

A divided judiciary is a feast for the political establishment, for no ruler, be it in a democracy or in an autocracy, would ever really want a fearless and independent judiciary. They may wax eloquent in public discourses about the need for an independent judiciary, but, heart of hearts, they are not fools to have a truly fearless and independent judiciary and get quickly convicted and sentenced for their misdemeanors.

Very recently, the Chief Justice of India publicly observed that the district judiciary was refusing bail for the fear of being targeted. The Chief Justice is reported to have said,

"If district judges do not have the confidence in their own abilities, in their own respect in the hierarchical system, how would we expect a district judge to grant bail in an important case?"

This raises an important issue of judicial and administrative subordination that has now entrenched itself in the working of our district judiciary. The system of subordination emanates from our founding document: the Constitution. Chapter VI of the Constitution deals with “Subordinate Courts”, and Article 235 of the Constitution makes these trial judiciary administratively and judicially subordinate to the High Court.

The Constitution follows the pattern of its predecessor, the Government of India Act, 1935, which used the same expression. Thus, a pattern of administrative and judicial subordination has been institutionalized over a period. It is a known fact that in this feudal order, a pattern of servility is nurtured and developed. To add to their existing woes, anonymous petitions keep them in perpetual fear, on account of which they tend to see ghosts in every shadow. All these have eventually taken a toll on their self-esteem. How can a mind full of fear render justice ?

Recently, the Madhya Pradesh High Court has resolved to call its subordinate judiciary the district judiciary. Optics aside, what we really require is a district judiciary that is independent and fearless.

I have always maintained that the district judiciary is the first point of contact for a citizen. It is in these munsif and magistrate courts that the citizen has his/her first brush with the law and the legal process.

It is, therefore, at that level that justice dispensation must be made easy, accessible, and affordable. Equally, it is important that judges at these levels decide cases sans fear of any administrative or judicial reprisals.

After spending a little less than a decade on the Bench, I can say without fear of contradiction that there were several cases where bail was refused as the judges in the trial court wanted to play safe by leaving the accused to obtain bail from the High Court.

The Code of Criminal Procedure makes it imperative for the accused to approach the magistrate, not because he is in the lowest rung, but, because it is the magistrate who is best placed to quickly call for the Case Diary and grant or refuse bail. The magistrate is not an intermediate station which the accused must routinely pass before he finally reaches his destination, the High Court, for his liberty. 

I am not, for a moment, saying that all those who have been elevated from the ranks had displayed great talents, and that those from the Bar had lagged behind. There have been exemplars and disasters from both streams.

Instead of wagering on luck, all I now say is that there should be a system in place to redress these issues. I have offered my unsolicited opinion. What do you say?

Justice PN Prakash is a retired judge of the Madras High Court.