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Associate Editor, Raghul Sudheesh spoke to Justice Arijit Pasayat, former judge of the Supreme Court of India and current Chairman, Competition Appellate Tribunal, on a diverse range of topics including his initial years at the Bar, his views on some of the important judgments he delivered, experiences in the Apex Court, the collegium system of judicial appointment and corruption in the judiciary.
Justice Arijit Pasayat retired from the Supreme Court in 2009 after delivering over 2,500 reported judgments, an achievement which, by itself, accords great respect and admiration. Beginning his judicial career as an Additional Judge of the Orissa High Court in 1989, Justice Pasayat was made a permanent Judge two years later. In 1999 he was appointed as the Chief Justice of the High Court of Kerala, a post which he occupied for barely eight months following which he was made Chief Justice of the High Court of Delhi. Elevated to the Supreme Court in 2001, Justice Pasayat served in the Apex Court for almost eight years during which time he delivered several landmark judgments.
Raghul Sudheesh: Can you tell us about your initial days as a lawyer? Any words of advice for the current and future generation of lawyers?
Justice Arijit Pasayat: I come from a lawyer’s family; my father was a senior lawyer. Although he died before I joined the legal profession, he remains my role model. He was a legendary figure in Orissa as a jurist and as a leader at the Bar. In fact, my father wanted me in the legal profession. Initially I had no inclination to join the legal profession but I did finally oblige to his wishes and joined the profession. Since my father died before I became a lawyer, I had to face some difficulties during my initial years. During that time I was also pursuing my Chartered Accountancy studies. By the time I became a lawyer, I had completed my Chartered Accountancy articleship as well.
What I have experienced in my professional career is that you should have commitment and you have to take your job seriously because the legal profession is never an easy one. I never hesitated to take up any branch of law. My personal take is that it might take more time to deal with a subject with which I am not very familiar but with time and hard work, I can make up for it. I appeared from the Tahsildar’s court to the Supreme Court! The profession has become very challenging and more competitive but ultimately it is your hard work which brings you rewards. One should never get disheartened. When I started my career, my first month’s earning was seven rupees! I never got disheartened but instead I was glad that it was seven rupees and not zero. Ultimately, I became one of the highest tax payers and probably the highest tax payer in my state as a lawyer. So, I think if you have commitment, if you are hard working, sincere to your job and honest to yourself then you will reap the rewards. Sticking on to these principles for twenty years did pay off as I finally became a Judge. I was one of the youngest judges back then.
Raghul Sudheesh: Judges are often asked to provide solutions to fairly complex disputes. What was your approach towards such disputes? Any advice for current judges?
Justice Arijit Pasayat: I feel that whenever you find any difficulty, if you are focused, if you are really intent on doing justice you can decide a case. In very complex cases, sometimes the solution comes from nowhere. I am a devotee of Lord Ganapati, so I feel that whenever I am faced with any difficulty, the Lord provides the solution.
Often I feel that the Lord guides you in finding a proper solution. I used to say that in the Mahabharat, Vyas Muni was dictating while Lord Ganesh would write it all down. In my case, it is the reverse: It is Lord Ganesh who dictates while I write it down. People may think that this is not a very serious way of writing judgments but I have always felt this way. In fact becoming a judge is not the end of it, it is actually the beginning because you are given the responsibility of doing justice.
The approach should never be that when we are in the High Court, the Supreme Court is always there; whether we decide rightly or wrongly, it does not matter. That is a very wrong way of thinking because ultimately, for approximately 97% of the country’s people, even a Munsiff is the Supreme Court in the sense that the majority of the people cannot afford to go to higher courts given the cost and time involved. Whether it is a Magistrate or a Munsiff or even a judge of the Supreme Court, one should think that whatever one does, one should do it with the best of one’s abilities and with a clear conscience so that justice is served. If this approach is adopted, I think there will be very little scope for anybody questioning your judgment. We are all human beings and we can make mistakes but if we do it with a clear heart and a clean conscience then whatever is decided is done honestly and fairly.
Raghul Sudheesh: Can you tell us a bit about your experience as Chief Justice of the High Courts of Kerala and then Delhi?
Justice Arijit Pasayat: I was Chief Justice of the Kerala High Court for a very short period (7 months and 20 days) and in Delhi, I was there for 14 months. What I have seen is that judges by and large are very hardworking both in Kerala and in Delhi. They try their best to deal with the pressures of work. One thing which I noticed both in Kerala and Delhi is that the judges used to attend court s punctually. In fact, most of them, were working even beyond court hours. As the pressure of work is high both in Kerala and Delhi, it becomes difficult for them to finish the matters within the fixed court hours. Hence, judges try their best to meet the challenge of an ever increasing workload to the best of their abilities.
Raghul Sudheesh: Can you elaborate on some of the important judgments delivered by you?
Justice Arijit Pasayat: Each judgment was important for me. There were a few cases which I felt had some significance in the ultimate analysis of law. One related to the destruction of public property, another related to anti-ragging laws; there was one case dealing with college elections and conducting them in a more dignified manner. I was amazed at the amount of money that was spent on college elections and the violence in campuses during elections. I felt this was not a very healthy trend for the student community. Ragging has become a nuisance. Even though we have such stringent laws, ragging still takes place and many young students have lost their lives because of this menace.
About the fast tracking of Gujarat riots case, it was a case where apart from the fact that the credibility of the criminal justice system was under scrutiny, there was a need to give equal importance to the protection of witnesses, a subject which I highlighted in that case and in subsequent cases. Today, the number of convictions is pathetically low. This is not because there is a deficiency in the criminal justice delivery system; rather it ultimately depends upon the credibility of the witness and whether he is deposing fairly, fearlessly and is telling the truth. From experience, I have seen that the witnesses, by and large, resile from the statements made during investigation. That is the reason for it, either they were telling the truth then or they are telling the truth in court. In fact, I made a very detailed study of the witness protection system and had indicated in my judgment that there should be some system of giving protection to the witness so that he can fearlessly depose in court. As for other important cases, there were many cases dealing with environmental issues which I decided while I was in the Forest Bench in the Supreme Court.
Raghul Sudheesh: You have come down heavily on the High Courts for over reaching the powers granted by Section 482 of the Code of Criminal Procedure (Cr.PC). Do you think that this Section is particularly open to abuse?
Justice Arijit Pasayat: As a matter of fact, there is nothing wrong in our statutes. The power under Section 482 is to be exercised within some legitimate boundaries. Mostly Section 482 cases have time-consuming processes involved and seem to be a way for people to delay the proceedings. The true scope and ambit of Section 482 should be kept in view while dealing with any application under Section 482. Right from Bhajan Lal’s case, we have tried to find out where and when Section 482 is to be used. The power granted by Section 482 should not be exercised very sparingly nor should it be used very casually; there has to be a balance. That is what I have said.
Raghul Sudheesh: A common criticism of Indian case law is that the judgments are too voluminous and burdened with previous decisions. What do you have to say about this?
Justice Arijit Pasayat: It is actually a question of perception. I feel that whenever I am dealing with a case, it should not be burdened with too many citations. If your ideas are very clear, you can only get some supplementary support from earlier decisions. In most of the cases there is no necessity of referring to earlier judgments. If you have a view and that view has been consistently followed, why should you then cite hundreds of judgments? It will only add pages without more clarity. That is what I have felt.
Raghul Sudheesh: Recently a remark was made by a former Judge of the Apex Court that a salary of Rs. One lakh is too low for judges of the Supreme Court. Do you agree to that?
Justice Arijit Pasayat: It is a question of one’s needs. You can say no amount is sufficient or no amount is too scanty.
Raghul Sudheesh: Can you tell us more about your days in the Apex Court?
Justice Arijit Pasayat: I had the best of times in the Supreme Court. Of course, it was the most challenging period of my legal career as a judge because I was always conscious that whatever I said was the law of the land. That actually leads to you being more cautious while deciding a case. Whenever a complex case would come up, it gave one pleasure and the chance to develop the law. For example, the OBC case; it posed a lot of challenges and the TMA Pai case and the Presidential reference in the Gujarat Election case. All these cases were important cases in the sense that they had a tremendous impact on various aspects of law. It gave me immense pleasure to be a part of the Bench. Fortunately for me, I have been part of the Bench in most of the important cases during my tenure in the Supreme Court and I enjoyed every bit of it.
Raghul Sudheesh: As one of the judges who was on the Bench that stayed the implementation of the OBC quota in the various IIMs and IITs, do you believe that the reservation policy in our country has served its purpose?
Justice Arijit Pasayat: Though I had initially in the OBC quote case stayed the reservation system but ultimately the decision rested on whether the reservation itself was constitutionally valid per se. Now whether reservation is desirable or not desirable, is a political question. But when it comes to the court, we have to see whether the provision relating to the reservation is constitutionally valid or not. That is how we decided the matter.
Raghul Sudheesh: After you completed your tenure in the Supreme Court, you were appointed the Chairman of the Competition Appellate Tribunal. How has that experience been?
Justice Arijit Pasayat: Competition law is a very important branch of law. It will be the “in” law in times to come because the entire commercial scenario of the country would depend upon proper implementation of this law. Of course, now we are at the infancy stage but with time its importance will grow.
Raghul Sudheesh: As the Chairman of the Competition Appellate Tribunal, do you think that the current framework of competition laws in the country is satisfactory? Do you think there are grey areas in this branch of law?
Justice Arijit Pasayat: There are actually many grey areas. This is a law which has come into force very recently and as time progresses we will learn from our experiences, whenever any changes are necessary, we would suggest it. But at present it is satisfactory.
Raghul Sudheesh: In the light of recent corporate scandals, do you think that we need to have a Special Court or Tribunal for deciding such cases?
Justice Arijit Pasayat: The present Chief Justice of India has actually been insisting that you should have more number of Benches dealing with commercial matters. Commercial and revenue laws form a significant part of the economic growth and stability of the country. So, if there is uncertainty, if there is delay then it becomes counter-productive. In that sense, you should have more number of Benches dealing with commercial and revenue issues so that they can be decided expeditiously.
Raghul Sudheesh: Are you in favour of the Bill which plans to establish commercial Benches in the High Courts?
Justice Arijit Pasayat: I think you can designate a Bench to deal with commercial and revenue cases, so there is no necessity as such, for having any special Bench. What I used to do as Chief Justice is to find out which judge is familiar with which branch of law and I used to assign matters accordingly. When I was in the Kerala and Delhi High Courts, I sat in the revenue/tax matter benches and we disposed off large number of cases which were pending. Since I had some expertise in tax laws, we could do it. So, with a little bit of Bench management, you can achieve that purpose.
Raghul Sudheesh: Most law students prefer joining companies or law firms while only a few decide to enter the Bar. What do you think can be done to change this trend?
Justice Arijit Pasayat: It is not a very healthy trend. But I tell you from my experience that young lawyers who join the corporate firms or become part of the law firms actually miss out on the thrill of litigation. After some time, even though they make less money, they still want to come back to litigation. That is a healthy sign. Of course, there is nothing wrong in young people joining the corporate firms or law firms but I feel there is a thrill in arguing a case rather than giving an opinion.
Raghul Sudheesh: Do you think we need to have a Judicial Commission rather than a collegium to appoint judges?
Justice Arijit Pasayat: That is a very difficult question. The process of selection of Judges is very important. It is not as if you can appoint somebody and then later realise that that he was unsuitable. So, more caution and care has to be there when you choose judges. No system is perfect. The earlier position had its drawback; the collegium system may have its drawback. But the ultimate objective is choosing the best people, the most suitable people as judges.
Raghul Sudheesh: Recently on Law Day, the Chief Justice of India remarked that cases were delayed not because of Judges but due to the lawyers and the system. Can you share your thoughts on this?
Justice Arijit Pasayat: He is right in the sense that if you have thirteen judges for a million people, you cannot expect them to carry the entire load on their shoulders, breaking their backbones. If we do not have an adequate judge-strength, there are bound to be arrears. So first, we must have adequate number of judges, then we must have adequate number of courts dealing with the cases and there should be more of an effort to minimize litigation. There are many cases which are avoidable but still tend to come to courts. For example, somebody is not getting a pension; this is a matter which should not come to court. After all he has served an institution and he is to get a pension, why should he rush to court? The number of such cases is not very small. So, such matters if dealt with more efficacy at the administrative level, would reduce the burden on the courts.
Raghul Sudheesh: In the last few years, the Supreme Court has become very pro-active. Do you think that this is an indication that the government machinery has failed and it is the Court who is now running the nation?
Justice Arijit Pasayat: No, the court is not running the nation. It is incorrect to say that in cases where there is deficiency in the functioning of the Executive, the courts correct it. Courts do not, in that sense, run the country. In one or two cases, when we have done something, it doesn’t mean that the country has failed. The government’s failure is a political issue. The Court decides a particular case on the facts of that case. How can that lead to the impression of failure of government? I don’t subscribe to that view.
Raghul Sudheesh: You have often been referred to as the Sachin Tendulkar of the Supreme Court for delivering around 2,500 judgments in the span of just eight years. How did you achieve this record?
Justice Arijit Pasayat: I don’t believe in records. I never kept a track of it till some newspaper reported about it. I think I have played my innings to the best of my abilities and for the good of my country. Anyway, I was very happy that people have recognized that I have done something for the system.
Raghul Sudheesh: You have been very pro-active after retiring from the Supreme Court and have been actively involved with various organizations. What keeps you inspired and motivated?
Justice Arijit Pasayat: As a matter of fact, I feel that a busy person has more time to work than a person who feels that he is having insufficient time to work. In whatever way I can contribute to the growth of the judicial system, I try my best to do it. I do it in my own way without any need for recognition or public attention. I think to some extent, I have been able to do something for the judicial system and I am happy about it.
Raghul Sudheesh: What is your take on corruption in judiciary?
Justice Arijit Pasayat: I feel that merely because somebody in the judiciary is corrupt, there should not be any clemency. Corruption, in any walk of life is to be dealt with strongly and doubly so when it is in the judiciary. I can only tell you one thing when a dog bites a man, it doesn’t make news but when a man bites a dog, it makes news. Somebody in the judiciary being corrupt is like a man biting a dog.
Raghul Sudheesh: Professor K. N. C. Pillai has criticised you in various articles for copying text verbatim from your own judgments? What is your reaction to this criticism? Have you read Professor Pillai’s article?
Justice Arijit Pasayat: No, I have not read the article. Whenever I have referred to any judgment or other earlier view; I have always recognized it and acknowledged it. If I am the author of that judgment, there is no harm in me quoting the view or writing the same set of facts; there is nothing wrong in following such a practice. But if I am actually quoting somebody else and if I don’t acknowledge it, then it is wrong.