A judge may err in the law and on facts, but he shall not err to his conscience – Justice KS Radhakrishnan

Justice KS Radhakrishnan retired as Supreme Court judge on May 14, 2014. Well known as the judge who presided the hearing in the Sebi Sahara dispute, Justice Radhakrishnan authored several landmark judgments including the judgments on transgenders’ rights and animal rights which attracted wide attention. Solicitor General Mohan Parasaran referred to J. Radhakrishnan as a judge who was instrumental in shaping modern jurisprudence arising from the Supreme Court.. In this interview with Bar & Bench, he speaks about his initial days as a lawyer, his stints in three different High Courts and his views on various legal issues..Bar & Bench: Tell us a bit about your early years? .Justice KS Radhakrishnan: My father was a senior lawyer in the Kerala High Court and also served as the Advocate General of Kerala. I followed my father’s footsteps. I enrolled at the Bar in the year 1973 after completing my Masters degree in Constitutional and Administrative law from the Cochin University of Science and Technology (CUSAT). I also taught at CUSAT for about two years as a visiting faculty. Simultaneously, I was practicing in the Kerala High Court. Then, in the year 1995, I was appointed judge of the Kerala High Court. My name was recommended by Justice M. Jagannadha Rao, Justice KS Paripoornan, former Supreme Court Judge and the late Justice Varghese Kalliath..B&B: Can you recount your early days at the Bar?.J. KSR: As a lawyer I had an interesting experience. I was arguing a service matter before a Division Bench. Both the Petitioner and the Respondent were Professors and were present in the court. The Bench was initially against me though I had a good case. I argued for more than an hour but could not impress the Bench. Suddenly, one of the judges could catch the point I was canvassing. Then both the judges gave me a patient hearing and ultimately decided the case in my favour..The first person to congratulate me the moment I won the case was the opposite party because he knew what the truth was though he had agitated the matter up to the High Court. As a young member of the Bar, it was a great encouragement for me. A lawyer should work hard and conduct his case with all earnestness and it is possible that the opposite party might engage you in future..B&B: Tell us about your experience as a judge of the High Court..J. KSR: As a judge of the Kerala High Court, I dealt with some very important and controversial issues..I was part of a Division Bench that banned politics from schools and colleges. The petitioner, a college didn’t want politics in its campus as it affected the academic atmosphere. We ruled that there should be no politics inside the school and college campuses. That was the first judgment of its kind in the whole country and later it came before the Supreme Court and the Court appointed a committee to examine the issue..Another matter which I had heard was a contempt of court case against a State minister, who had made a statement that judges decide cases on the basis of “weight of currency notes”. I was, then, the acting Chief Justice of Kerala High Court and took suo moto contempt of the statement made. The minister expressed his regret but refused to offer an unconditional apology. Later, the matter came to the Supreme Court and he tendered an unconditional apology and the case was closed..Despite the fact that I have dealt with various sensitive cases, I never received any disturbing letters or phone calls. People might have had difference of opinion with respect to some judgments but there had never been a personal attack on me. I could discharge my duties without fear or favour and in accordance with the oath I had taken..Personal attack of the judge is not a healthy practice. Judgments can and should be criticized, only then will law develop. A judge may err in the law and on facts; but he shall not err to his conscience..B&B: What about the J&K and Gujarat High Courts where you served as the Chief Justice?.J.KSR: I became the Chief Justice of the Jammu & Kashmir High Court in January 2008. It was a very interesting tenure..The President of the Srinagar Bar Association in his welcome address said, “Sir, we never respect Indian legislations or any laws made by Indian parliament because they are applicable to the whole country except Jammu & Kashmir. When a statute is not applicable to us, why should we respect it and the Parliament which legislates it?” Their attitude was against the Indian government, Indian policies and Indian laws..But all the same, I did not have any difficulties in discharging my duties as the Chief Justice. Though they had openly stated in the meeting that they were against Indian government’s policies and laws, they always respected Indian judiciary. In my reply speech I said that I have come here to discharge my duty in accordance with the oath I had taken, which I will discharge..I also functioned as the Chief Justice of Gujarat High Court. Before I assumed charge, most of the Godhra related cases were ordered to be tried by courts outside the State. I took a lot of measures to improve the credibility of the courts in Gujarat. I had to take action against about forty subordinate judicial officers and many of them were weeded out. On the direction given by the Supreme Court, I had to establish Special Court to decide all Godhra related cases. Few other important cases like the Slumdog Millionaire Case, Jinnah Book Case etc were decided while I was functioning as the Chief Justice..B&B: Which are the memorable judgments you have delivered as a Supreme Court judge?.J. KSR: Judgment delivered in the Vodafone case relating to international taxation was a very significant one. The latest edition of the book on income tax by Kanga & Palkhivala refers to that judgment. The judgment in the Orissa Mining Corporation case is also very important where we have examined the inter play between the MMDR Act and the Forest Rights Act and have considered the rights of tribals in Orissa vis a vis the mining rights of the State..Another interesting judgment pertains to the interpretation of what is obscene/ nudity in which we held that a semi nude picture of tennis player Boris Becker, who is white, and his black fiancée gives message against racism and the photograph should be viewed in that context. The judgment on Nuclear Power Plant at Kudankulam is another important judgment on the scope of Atomic Energy Act as well as on environmental law..Powers of the CAG to audit Service Providers, Constitution of Civil Service Board, BMW hit-and-run case, Alakananda Hydro Project are also few of the important cases..Another very important judgment is the one regarding rights of animals in which we have banned the conduct of jallikattu and using bulls for racing. No positive right is conferred on humans to use animals for their enjoyment or entertainment. Constitutions across the world and UN Conventions all speak about human rights but not about the rights of animals. Recently, a few Constitutions like the German, Swiss and Norwegian Constitutions have recognized rights of animals. We have recommended that rights of animals should be elevated to the status of Constitutional rights..The judgment on transgenders received a lot of national and international attention. The National Legal Services Authority drew our attention to the plight of transgender community. So far, there is no law recognizing the rights of transgenders in India. But we interpreted Articles 14, 15, 16, 19 and 21 to include transgender community within the ambit of the Constitutional rights. We also placed reliance on various international conventions and principles. The judgment highlighted the necessity of applying the “psychological test” to determine the sex of a person and not the “biological test”..B&B: You are known among lawyers as a judge who goes beyond what has been argued in the court and does his own research. And this reflects in your judgments as well – .J. KSR: Absolutely! Once I became a judge, my aim has always been to find out where the justice lies. I never used to go merely by the arguments of the parties or by the pleadings when socio-economic and human rights issues are involved.A lawyer is a busy professional and he may miss something important. So, I used to study the case myself and satisfy myself as after all the author of the judgment is the judge. Therefore, I used to go beyond engagement in the court and used to do my own research on the subject. Not only in the Supreme Court, even in the High Courts I used to put in a lot of effort apart from considering the arguments of the arguing counsels..B&B: What differences have you found between the Supreme Court and the High Courts?.J. KSR: The role and approach of the Supreme Court judges are different compared to the judges of High Courts. The judges of the Supreme Court should have an overall view of the entire subject matter because they lay down the law for the entire country..B&B: You don’t differentiate between seniors and juniors who argue before you which is many times not the case with other judges..J. KSR: Temperamentally my approach to any lawyer, senior or junior, has been to make them comfortable in the court. I used to adhere to that from the time I became a judge because I am conscious of the difficulties of a young lawyer. My father was a lawyer, my son is a lawyer and so is my brother. Hailing from a family with a legal background, I know the difficulties that a young, budding lawyer has to face..Lawyers come from different backgrounds and circumstances – financially and otherwise. For a person coming to say, Delhi or any other metro city, it is not easy to set up a practice. He has to maintain an establishment, take care of his family and may face lots of problems – personal and professional. So, we must have a humane approach to the lawyer. That is probably the reason why my approach is to make a lawyer comfortable. Moreover, it will also enable judges to get the maximum output from a lawyer as well. Sometimes, there might be nothing in a case on the face of it. However, even in such cases, it is only advisable that a judge gives a hearing to both the counsels because there might be something in a case which we will never know unless we hear them. So, I always used to give a patient hearing to lawyers..B&B: In that context, what is your take on the practice of designating Senior Advocates?.J. KSR: For designating a lawyer as a Senior, he should possess lot of qualities – the number of cases he has argued in the High Courts and the Supreme Court should not be the sole criteria. The first and foremost duty of any Senior lawyer is to assist the court to arrive at the right conclusion. Both the judge and the lawyer are only tools in the dispensation of justice. So, the aim of a lawyer should be to assist the court to arrive at the truth. .A Senior lawyer while arguing for his client, is expected to place before the court all the facts which are necessary for the proper dispensation of justice. A lawyer aspiring Senior Advocateship should be a person of high professional integrity, character and should be a role model for the juniors in the profession..Another issue now is that there are many complaints – mostly with respect to the Supreme Court – that ordinary persons cannot approach the Supreme Court because of the heavy fees charged by the Senior lawyers. This can be overcome by imposing a condition that a designated Senior lawyer should appear for people belonging to the lower strata of the society in at least ten cases in a year on a fixed fee determined by a committee or voluntarily. It should be a condition precedent for conferring Senior Advocateship. A body/ committee should be constituted in the Supreme Court consisting of eminent lawyers and senior most judges. That body will decide what cases are to be entrusted to a particular Senior preferably with the consent of parties. This way, ordinary people, who cannot afford to engage a Senior Advocate otherwise, will be able to avail the services of a Senior lawyer..And if a designated lawyer does not discharge his obligation, his Senior designation can be withdrawn. Advocacy is a service to the society and you are bound to offer your services to a person who cannot afford it. If you fail to do so, the Court can withdraw the Senior designation..B&B: What are your thoughts on the collegium system?.J. KSR: I don’t advocate complete shelving of the Collegium system. Primacy should always be with the judges in the matter of appointment of judges to the Supreme Court and High Courts. At the same time, there is nothing wrong in having representation from the Executive and eliciting views of eminent members of the legal profession. But, my view is that the primacy should be with judges..B&B: Do you think that judges of the Supreme Court and the High Courts are underpaid. The low salary of judges has been a subject of debate for quite some time now..J. KSR: I don’t subscribe to that view. According to me, currently, our country takes care of its judiciary creditably. Judges are getting a decent salary and decent perquisites. Above all, judges gain tremendous respect in the society which is invaluable. You cannot gain respect on the basis of the salary or the perquisites one gets and I don’t think any judge can complain. Not only judges of the Supreme Court and High Courts, even judges of the subordinate judiciary are reasonably well paid and I don’t think they can complain about salary structure and perquisites..B&B: Another controversial issue today is “Bench Hunting” and “Bench Intimidation”. In the recent judgment in the Habeas Corpus petition filed by Subrata Roy, the Supreme Court Bench presided by you, had come down heavily upon Senior lawyers for the same. There was a similar allegation in the defamation suit filed by Justice Swatanter Kumar in the Delhi High Court. Do you think this is becoming a general trend?.J. KSR: Both these matters are sub judice and I don’t think it is fair on my part to comment on this question. Even if I make a comment generally, it might have a sweeping effect and might be interpreted in the light of the two cases. Otherwise, I would have expressed my view on this issue..B&B: A Senior lawyer recently remarked that the three most powerful institutions in the world today are – the President of the United States, the Communist Party of China and the Supreme Court of India. Do you agree?.J. KSR: I agree to some extent because the Supreme Court of India is a very powerful institution which has always stood for the needy, poor and the down trodden. If you go through the judgments of the Supreme Court, you will find that it has always stood for upholding human rights, particularly through its interpretation of Article 21. When it comes to upholding human rights, I think the Supreme Court occupies the top spot in the world..Bar & Bench would like to thank advocates Nikhil G, Hari Kumar, Shivshankar Panicker and Sriram Parakkat for their assistance in arranging the interview.