Indian judges write 100 judgments a month, American judges write 10-15 a year: Dama Seshadri Naidu [Part II]

In Part II of this interview with Bar & Bench's Neha Joshi, Senior Advocate Dama Seshadri Naidu speaks about the pressure on judges due to the backlog of cases and the increasing online criticism they face. Naidu also sheds light on how technology is important for the judiciary and explains why he is not in favour of the use of artificial intelligence for judgment writing..Edited excerpts follow..Read Part I here:.If you want real talent for the judiciary, the position should be more remunerative: Dama Seshadri Naidu [Part I].Neha Joshi (NJ): You spoke about the pressure on judges due to increasing backlog. Can you elaborate on that?.Dama Seshadri Naidu (DSN): Earlier, the pressure was uni-dimensional. It was only with regards to disposal. Now it is multi-dimensional. Because you have been exposed, you are living in a glass house. Even your proceedings are live-streamed. So now the pressure is all around. Let me first handle this pressure of workload. When I was in Bombay, I wrote a judgment saying that the very purpose of the original side was to have high-stakes matters disposed of expeditiously. But it has become sort of counter-productive with our fascination with procedural niceties. We find applications invoking all provisions of CPC (Code of Civil Procedure) and CrPC (Code of Criminal Procedure) in dozens. Most of the time, we measure an advocate’s calibre by his prowess to file more interlocutory applications and get interim orders rather than having the final solution. It is legislative in a sense. Also, sometimes, courts may also have to put a firm hand on this process of dilatory things. That's the only way out. Of course in 2002, CPC was sought to be amended. Timelines have been fixed. Now, you have the Commercial Courts Act with a strict time-frame, etc. But somehow, the dilation takes place. When it comes to the international reckoning of our ranking in terms of ease of doing business, one of the factors is adjudication and its speed in contractual matters or commercial matters. Judges face tremendous pressure when it comes to disposal, because of inadequacy of infrastructure, inadequacy of the number of judges and this humongous procedure, which has been engulfing us and making it very difficult to have anything done on a faster lane.You have seen Section 138 (of Negotiable Instruments Act) cheque bouncing cases. You have seen commercial courts. Have you ever seen one instance where things have been done as per the time-frame? No. The problem is multi-faceted. You can't blame the judges alone. They've been overburdened..When it comes to the American Supreme Court, nine judges sit for the whole year and decide 70 to 90 cases maximum. 0.5% of the cases are admitted for hearing. A judge writes the lead judgment and then other judges have their dissent or concur. So, on average, a judge of the American Supreme Court may write 10 to 15 judgments in the entire year. The rest may simply concur. But an Indian Supreme Court judge - and of course it's not different when it comes to a High Court judge as well - writes around 100 to 200 judgments almost every month. How can you expect stellar quality and research time for them? Of course, you still have the best of judgments coming from us, but this is the factor that's been eating into our ability to produce world-class judgments..The other source of pressure is social media. They render judgments, and ask us to follow those. Otherwise you become a villain. This is the danger we've been facing. Sometimes, judges face the allegation of playing to the gallery and wearing a political ideology on their sleeves. And some people say that I go by my conscience. I don't think conscience, personal philosophy or personal view have anything to do with your adjudication. It is only the statute and above that, it is only the Constitution. Not even God. Henry Longfellow says, ‘Heart within, and God o’erhead,’ but here, it is ‘Heart within and Constitution above,' nothing else..NJ: Do you think that the criticism goes hand-in-hand with the increased transparency of how our courts function?.DSN: In England, the society was tiny, as big as perhaps one of our districts in Uttar Pradesh. A few thousands of people at best felt that openness is everything and sunlight is the best disinfectant. There should not be any contempt, etc. Can we straight away input that to the Indian atmosphere? I don't think it's possible. It should be open. It should be accessible. But it comes with a baggage with all its good and bad things. Recently, one judge was playing devil's advocate. Every judge, to get the best of the advocate and to get the best answers for his doubts, plays the devil’s advocate. If you're arguing for the petitioner, they will grill you as if they were supporting the respondent. If I am arguing for the respondent in the same case as your counterpart, they will grill me, as if they were supporting you, the petitioners. So that way, they try to get the best and they decide, because they have the mortal fear of making a mistake. And most of the time, untrained people (with great respect to all of them) feel that these questions reflect the judges' personal views. They never reflect the judge’s personal views. So these are the problems we do face, but you just have to go forward. Because judges don't play to the gallery and they don't need any certificates..NJ: What is your take on judges being given posts after retirement? Does the trend affect the independence of the judiciary?.DSN: That has weakened the moral stature of many a judge, unfortunately. It's entirely a personal answer. Left to myself, it isn't good. At least there should be some cooling-off time, only to ward off allegations. Whatever the assignment they take - tribunals, etc. But still, as you say, justice should not only be done, but should also seen to be done. Their conduct, their attitude, within themselves, they may be perfect. But we should also send a message to society. And also when it comes to arbitration etc, I don't think any judge has any dearth of work. They do have a lot, minus these post-retirement accommodations..NJ: Do you think the Central government has been slow in taking decisions on the Collegium's recommendations?.DSN: Is it a judicial question, a legal question or a political question? Because my knowledge of politics doesn't extend beyond reading the daily newspaper. I don't watch TV as a matter of principle. I believe news is the one that survives that night and comes in the morning in the print. Once, Abraham Lincoln had said, “The oldest thing on earth is yesterday's newspaper." When it comes to the delay in appointments, I am a lawyer, I am entitled to my views. I feel in some instances, yes, there have been delays that are inexplicable. Perhaps a uniform policy can be adopted, whichever is the government..NJ: What is your take on nepotism in the judiciary, specifically when it comes to judicial appointments?.DSN: Why do we point out this nepotism in the judiciary? We are human beings. Have you read Richard Dawkins’ ‘The Selfish Gene’? It has got a scientific base. But nepotism at the cost of what you call talent cannot be. Suppose you are a judge, your daughter has the advantage of looking at you when you are a lawyer, then becoming a judge. She gets inspired. She works very hard and performs very well all through as a lawyer. If she is to be made a judge, can we call it nepotism? There are advocates' sons, judges' children, some of whom may become judges. Can we call it nepotism? It cannot be. Because, a judge is not someone who just comes and takes salary and goes away. A judge has to perform. If he doesn't have talent, doesn't have the tendency to work hard, he cannot survive in the system. Somebody getting picked up through nepotism, if at all, there is a five to ten per cent advantage. But how would he survive for 18-20 years? It isn’t possible. He has to measure up. So, I just discount this factor of nepotism in the judiciary because judges perform on their feet or on their seat. I don't think it carries them anywhere..NJ: During your tenure, you used to use a lot of electronic devices to take notes during a hearing. You also asked advocates to use technology. .DSN: We have got the master of technology as Chief Justice of India. When I began my career in 1998 in Tirupati, I was the first advocate in that place to buy a computer. Those days, with an 8GB hard disk, it cost me ₹75,000. I had to take a loan, and the printer cost me ₹15,000, so close to a lakh. I could have bought a couple of acres of land with that money. I was the first one who started filing all the pleadings typed on a computer. Even with regard to summons, all the forms which were pre-typed and you could get from a clerk in the court, I used to type them in my own way. So that was the beginning there. And then after going over to Hyderabad, I continued my dalliance with technology. Then I started using it for my dictation purpose.I also had subscriptions to almost all law journals. Then I became a judge. In Hyderabad, without causing offence to any of my brother and sister judges, I was the first one to use my laptop and iPad on the bench in 2013. Then of course, everybody started. Until my demitting office, I used to tell the advocates: Please don't give citations to me. Don't waste paper. You simply tell the citation. I can access it on my iPad because I've got all sorts of software which have stored all these decisions so I could access them. So I always discouraged them from giving me physical paper sets, etc. The use of it was really fantastic. Most of the time, when they were arguing and they were struggling on a point, I could access the case law and tell them: Please, why don't you look into this one? It may be helpful, it may not be helpful. Yes, technology is irreplaceable when it comes to adjudication..NJ: Recently, a Punjab & Haryana High Court judge used ChatGPT to write an order. How do you think AI should be used in the judiciary?.DSN: See, there are two things. AI is a very good thing to assist you in your research, perhaps. There are software where even judgments could be written. If you get help, it is very good. If you get the whole thing done by AI, it is an abdication. I do not think that should be the way. When it comes to judgment writing, it is you who should be doing it. For all the material that you gather, technology can help you..NJ: There has been an ongoing debate about court vacations being too long. As a lawyer and as a former judge what is your stand?.DSN: When I was a judge, my friends would call me on Friday evening or Saturday/Sunday and ask me, ‘What are you doing? It's a weekend. How will you spend your time? Why aren't you gone to a movie?’ For a judge, or an advocate for that matter, there is nothing like the weekend. The weekend is for us to recharge ourselves. We are like electric cars. The whole week, we are running, and over the weekend, we have to recharge intellectually, catch up on all the decisions that have been rendered. We had to go through the journals and we have to think of the pending cases and prepare for them. So it is a myth to say that judges, or for that matter, advocates, have free time.Let us take about vacations. When it comes to a judge, it is a completely exhausting and enervating intellectual journey and exercise throughout the day, the week and the month. Unless they have breaks, they break down. Whether it is 30 days, 40 days, 50 days, it's a different story, but vacations are not to laze around. Vacation serves two purposes. One thing is it recharges them intellectually and restores them physically. That is quite essential. Otherwise, you will see very poor quality judges health-wise, even mental health-wise..NJ: Any word of advice for young lawyers?.DSN: When you go to a doctor, he prescribes some medicine for your problem. Next time you go to him, you say ‘Doctor it hasn't worked’. Then he'll change the prescription. But you don't change the doctor because you have faith. You continue. When you go to an engineer to plan your house, you don't check his credentials, what percentage marks he got in, designing, etc. You trust him and he gives it based on his knowledge and experience. Nobody's going to question him. Neither the doctor nor the engineer. For that matter in any profession. But a lawyer, the moment he stands, he has to perform on his feet. And there is an opposing advocate to attack him the moment he makes a mistake or there is any weakness in his case or in his presentation. Above all, the judges are there. It is a daily battle for any advocate to survive. Only the fittest will survive. Many people believe that by networking, by being a member of a club, your clientele will expand. No. Somebody comes to you, perhaps sympathetic, because they know your parents. They would like to give you a case. They would like to promote you, but if you fail to perform, they would not come back. At the end of the day, the judge has to give reasons. He cannot look at the advocates’ face and give a judgment. And an advocate has to perform. And to perform, he has to be the best. .So my advice is: Young advocates have the greatest asset, which many others don't have, like me, and that is time. If you put time to effective use, the sky is the limit. I always tell them, ‘Don't be ever second best, you should be the best’. For that, the best thing is to work hard. Working hard, not in the negative sense. Love your work. And then everything falls in line.