Kashmiri Pandits have not received justice from any government: Justice Sanjay Kishan Kaul

In the second part of the interview, Justice Sanjay Kishan Kaul speaks on how some lawyers recommended for judgeship did not turn out as expected and concedes that a lapse of time in deciding a matter such as the Article 370 case creates difficulty in turning the clock back..He also recounts that while his own home was burnt down during the Kashmiri Pandit exodus, the experience did not affect the judgment he delivered in any way. Justice Kaul also states that the PMLA judgment indeed needs a re-look since there are some concerns it. .[Read Part 1 of the interview here].[Watch the video interview here].Below are the edited excerpts:.DR: You have said that some judges did not deliver as expected after they were recommended for elevation? Why did this happen and what do you make of it?.Justice Sanjay Kishan Kaul: There have been cases where very successful lawyers picked up from the Bar did not turn out to be expected. We cannot get into the heart of it. You look at established parameters, the possibility of performance, take a call after consultation with respected members of the Bar and the Bench. It has worked in many cases, it did not work in some cases.In Chennai, the challenge is also that the method of appointment envisages cross-sectional representation of different communities, apart from gender issues. It is more minute in character than in other places. So the endeavour is to pick up the best from that sect or sub-sect.There is a problem if you are looking lower down. Chennai has faced the most extreme such problem that my predecessors and I dealt with. Sometimes, when they become permanent, they want problems to start..The appointment process envisages somebody coming in straightaway as a permanent judge if a permanent judge vacancy exists. In the bargain, what happens is when the (additional) vacancies do not happen, the permanent ones arise. The senior judges do not even get a chance to gauge a person’s performance. That is a negative aspect of appointing (a permanent judge) straight away. Some of them have been more outstanding than I thought. Some of them did not rise to occasion.And it has happened historically too. Even before my time, excellent lawyers who when appointed as judges became more technical, slowed down, became more suspicious. So there are many factors, not just integrity. It is not always necessary that a very successful lawyer becomes a good judge, but normally somebody from whose hand good work has gone, should (become a good judge) is my thought..It is not always necessary that a very successful lawyer becomes a good judge, but normally somebody from whose hand good work has gone, should (become a good judge) is my thought.Justice Sanjay Kishan Kaul.DR: Recently, Justice RF Nariman critiqued the Article 370 judgment saying that it condoned the unconstitutional act of making J&K a union territory. What is your response?.Justice Kaul: See, I saw the interview of Fali and Rohinton, whom I have sat with. Both I immensely respect. But then, as I said, law is a matter of perspective. Despite reading everything, I have not come to the conclusion that in my mind what I did needs a relook. I believed what I did was correct. It is my thought and belief that the manner of assimilation of Kashmir to India carried a slightly different point. But ultimately, assimilation was the objective, hence the provision and how it was exercised through different GOs, giving power to the Centre.Now something remained. Should it have been changed, could it have been obliterated or not is a political question. Then we are questioning it on a constitutional (basis)…that is the nature of the provision we five opined. On the method and procedure, there has been criticism including by Fali, they are entitled to their view. Given the scenario where the State was in existence with no State government in power and many other issues with the Centre in power, it was a method which was available. That method being available, they exercised it..On the method and procedure, there has been criticism including by Fali, they are entitled to their view. Given the scenario where the State was in existence with no State government in power and many other issues with the Centre in power, it was a method which was available. That method being available, they exercised it.Justice Sanjay Kishan Kaul.DR: We all know of the delay in the case being decided, and how that made it too late to turn back the clock. Seeing something unconstitutional in the Reorganisation Act, could the clock have been turned back in 2023, even if you did not agree with the abrogation?.Justice Kaul: You are right to a extent that the passage of time does create a difficulty in terms of turning the clock. But if the Supreme Court finds something unconstitutional, there is no way I feel for it to say no, at best it could have been given a timeframe. It is not impossible, but there are challenges due to the period of time.But the time also elapsed because the hearing went on and the matter was heard, and some sections of the petitioners' lawyers took a turn where they fundamentally challenged the issue of whether five judges (only) could even hear the matter. By then, some had concluded their arguments in toto also in terms of the challenge to the provisions. So there was a digression of opinion, and ultimately we had to reserve orders. But because we could not hear it as five judges there was no point in hearing it further. That made it take time and it derailed the matter to an extent.Thereafter, and I cannot say (much), it is the prerogative of the CJI. Finally, it got a hearing undoubtedly after some time..DR: You hail from the Valley and have perhaps witnessed communal strife in the region more closely. Did this factor have any bearing on your judgment?.SKK: It had a factor in the post script (epilogue) I wrote. So far as the legal principle is concerned, I have been a judge for 22 years. You learn to have your own view by keeping your personal preferences aside as a rule. Can we say that a judge is apolitical in the sense they do not have political beliefs? Every judge has one, but they are trained to keep it out of their adjudication. That was one part of the task. The latter part was something where I saw the pain on every side. Yes, the Kashmiri Pandits community were compelled to move out. 4.5 lakh people were displaced, I do not think they received justice from whichever government in terms of attending to the problem. The situation became so drastic that the Army had to be called in. It fights war in its own way, not like usual law and order, that is why I have referred to State and non-State actors.There were different communities that suffered. We have seen a whole generation grow in this turmoil. Somebody who was 5-6 [years old] then is 40 today, a whole generation is gone. Most of them have not seen conditions in which people lived together. It was one of the most comparatively assimilated societies. It was far safer in any other place.I used to go out for walks in Srinagar in 1980s, I had my orchards there. I would go, including with ladies. I could not do this in Delhi, there were problems and rumblings of course but till 1989…Some are political issues which I would not like to comment on. Do we move forward from here or we carry our own grievances from both sides? 1947 saw India’s partition, lots of loss of life and property. My family also went through this...after about the second generation, people adjusted to their new surroundings.Seeing this, I felt something needed to be done as acknowledgement of the wrong that has happened, not in terms of prosecution for the wrongdoing. Non-reflection on the truth should not happen, let us accept it and move forward. Otherwise, we will be bound by histories. If you want peace to be restored and remain, we have to work together, we have to move forward by accepting what went wrong, where it did and who suffered..the Kashmiri Pandits community were compelled to move out. 4.5 lakh people were displaced, I do not think they received justice from whichever government in terms of attending to the problem.Justice Sanjay Kishan Kaul.DR: What personal losses did you suffer as a result of the violence?.Justice Kaul: Two of my cottages were burnt down. One started at the beginning of the problem, and one much later. I would not like to say why it happened. My house barely survived, it was vandalised. My family house which was very pretty survived in terms of its structure which is what we have tried to redevelop, in terms of staying there. I stayed (there) this summer after 1989, for the first time in 2023 after that. This period of time, I would always live in government accommodation courtesy the office I hold, but I always used to feel for it as a home where I was not able to stay..Two of my cottages were burnt down. One started at the beginning of the problem, and one much later. I would not like to say why it happened. My house barely survived, it was vandalisedJustice Sanjay Kishan Kaul.DR: Did the abrogation help you go back to the Valley again?.Justice Kaul: No, I had kept going there. A redeeming feature I found this time was a lot of development has taken place there (recently), because of G20 and what not. My house is near the river, and they had built tracks for cycles and for people to walk and all that. And I saw people walking and talking even at night, far more bonhomie. I think the society is trying to come out of the trauma..DR: In the same-sex marriage verdict; did you and the judges in the majority attempt to reconcile each other’s points? Was there an attempt made for a unanimous verdict?.Justice Kaul: Yes, at some stage. But there was a divergence of opinions. It is a social issue, it takes time for (opinions to change). The bench I was a part of in the Delhi High Court had issued notice in the Navtej Johar case. If you see the history, even decriminalisation (of consensual gay sex) took time. And it was ironed out in the privacy judgment.Now there were ramifications to be worked out in terms of people staying together, different religious laws, and sections of society not being ready for it yet, and ultimately the Court was looking at the point of whether the Special Marriage Act can be fitted into it. Some of us thought no, some thought a civil union was a way out. May be it was not to be in the current time and can happen in the future, may be few years down the line it can.....ultimately the Court was looking at the point of whether the Special Marriage Act can be fitted into it. Some of us thought no, some thought a civil union was a way out. Maybe it was not to be in the current time and can happen in the future, maybe a few years down the line, it can.Justice Sanjay Kishan Kaul.DR: Do you think after a decade or so, the minority judgment will become the majority view?.Justice Kaul: I believe society is changing. There is a huge difference in perspective of my generation and the next. So when they become the decision makers, I am sure the situation will change. I am sure keeping in mind the history that has gone by…after some time the law will take its own course. It may be possible for the government to enact a law.It has enacted laws for some sections that have a different nature of a problem, so they can think of a law for rights to adoption, live together, many things come into the picture; it is not so simplistic. So may be a composite Act can take care, the government feels. I will not remove it from the realms of possibility in the years to come, which may itself the address the problem..DR: The Vijay Madanlal judgment is standing the test of time as of now. How can the Supreme Court correct its error, if any committed, without a curative or review? Can a larger bench do this?.Justice Kaul: Absolutely. If you see the jurisprudence development in the Supreme Court, it is seen at times that the view is taken by a bench; another bench says it needs reconsideration or a second look. In the second look, it may agree with the earlier interpretation or not. Another three-judge bench can say on these aspects we think a second look is required, it is nothing unusual I would say.In the PMLA case, a bench sat there to discuss whether we need a second look or not. Unfortunately, the hearing could not be concluded; why so, it is known - because I was demitting office. I am sure the CJI will constitute a new bench to see if a second look is needed..DR - Do you think that the PMLA verdict is something that you as a judge would have upheld on additional scrutiny?.Justice Kaul: I thought that it needs to be heard, there were some concerns in it, and those needed to be addressed. That is why we began hearing it. I had put it to a three judges bench because I thought the matter possibly needs a second look. It did not conclude, even if it did and we agreed, it would have to [heard by] a five-judge bench, which has not happened. That is now for some three-judge bench to think. Let us take an example of the arbitration agreement stamping case. It was delivered only in May I think, where five judges took a particular view in 3:2. It was perceived to be creating some problems, and through a curative method, it was ultimately referred to a seven-judge bench to have a relook at it. And the seven judges broadly supported the view that the two minority judges had earlier taken. And this is how jurisprudence develops and evolves if you look at it.There are older Constitution Bench judgments that sometimes find favour, some don't. Time period sometimes compels a relook. A judgment is an opinion. Let us not be touchy about it. It is my opinion today, it may be right, may be favoured by some and not by others. My view in minority may find favour today. I do not think judges should be touchy about issues that are said, as long as they keep the perspective in mind that what they write is just an opinion..Let us not be touchy about it. It is my opinion today, it may be right, may be favoured by some and not by others. My view in minority may find favour today. I do not think judges should be touchy about issues that are said, as long as they keep the perspective in mind that what they write is just an opinion.Justice Sanjay Kishan Kaul.DR: Pendency is a multi-faceted issue that requires efforts by various stakeholders. What would you identify as the five most urgent steps that need to be taken to address the issue?.Justice Kaul: The biggest challenge is the volume. We want every case to go through from cradle to grave with multiple levels of scrutiny. If this is to be the way, there has to be an out-of-the-box solution. We can look at models where people have found solutions. Countries like the US have given prominence to Alternate Dispute Resolution mechanisms, plea bargaining, arbitration and mediation have worked hugely. People’s thinking also is that we have to sort out, because the cost of litigation is prohibitive there. Only 3 per cent cases go to trial. In ours, 99.9 percent do, so how will it work? Plus our population, the number of judges, all these become challenges. Government is the litigant in more than 50% cases.I am a great votary of mediation. I have multiple times trained myself as a mediator. I also feel that it offers a better result than litigation. It is better in several matters, except serious criminal ones. Law may want a solution in a particular manner, which both the parties may not want...mediation training says when the law devises an orange, it does so in half and half, even if needs are different.We have a long history with the different forms of mediation. The Mahabharat occurred because of a failed mediation. Krishna Bhagwan went to give mediation options to reduce the amount, but Duryodhan did not agree to it and you saw the result. Of course, mediation requires consent, as was the case then. If you have to move forward, somebody has to give and take a little, and come forward.The government must litigate less. Let us look at even one-time solutions. If the criminal justice system is creating backlog, let us look at cases of up to seven years or ten years sentence. Often you will find people in prison who have served as undertrials (for long) are from socially weaker sections. And the environment is such that offences crop up, over land or water, they are not major issues. So if some part of the sentence has been served as undertrial and a bond is taken, it will help the process and let courts concentrate on more heinous cases.Mere changes of law is not the solution; we must similarly engage plea bargaining...Yes judges need to be increased, they are overburdened and that created a culture of adjournments. A judge knows that on having 100 cases, even if he adjourns 20, he cannot finish the board.Another aspect on which I feel strongly is that the court management system must improve, every judge must be trained on it. The institute and the court is to be managed. It must come up with a manner in which the cases can be handled, else what is the point of listing 100+ cases? If they keep getting adjourned with shorter dates, it does not serve the purpose and litigation costs keep increasing. There is a view that if we wait for 6-8 months and accommodate, then the litigant will be troubled. I have told my brother judges that if you start a case, finish it, do not defer by 2-3 months. At least some things should get over.Also, the legal fraternity needs to learn to argue in a compact manner..Mere changes of law is not the solution; we must similarly engage plea bargaining...Yes judges need to be increased, they are overburdened and that created a culture of adjournments. A judge knows that on having 100 cases, even if he adjourns 20, he cannot finish the board.Justice Sanjay Kishan Kaul.DR: You had mandated parties to submit a three-page summary to preserve precious judicial time. What were the positives and negatives (if any) that came with this move?.Justice Kaul: I would remove the extra pages if they submitted more than three. In US, in half an hour, the cases are decided. You are given that much time...you claim liberty to complete sentences there even. Here, it goes on beyond. We are also burdened with lots of precedents, and we expect each to be examined and considered. So the lawyer asks his junior to get a compilation, everything is reported so they will dump a compilation on you.I have said a judgment is when you do not agree with a proposition. There can be 1-2, do not try to throw cases on us. I used to send back compilations, and said I will not handle so many. Because when you sit down, you have to examine 50 cases otherwise. In America, it is only mentioned at the end.We also have to discipline ourselves. Our judgments have to be briefer and to the point. It is the job of academicians to theorise. Your job is to settle the law, and disputes. When you are doing so, there is no need to show the knowledge that you have. In my lectures to judicial academies, I used to tell them that when I was student, the grammar book Wren and Martin had a nice chapter on precise writing; everyone must learn and not repeat what is said..We also have to discipline ourselves. Our judgments have to be briefer and to the point. It is the job of academicians to theorise. Your job is to settle the law, and disputes. When you are doing so, there is no need to show the knowledge that you have.Justice Sanjay Kishan Kaul.And the government has to be more careful in enacting law. Legislative drafting is a skill. We may criticise the British laws but some of them are well drawn out, so when you replace them, they must be as well-drafted, so that they may cater to the current scenario. I think the Evidence Act is one of the most precisely drafted Acts as it existed, and may be a lot of it is being redrawn. Lots of unnecessary litigation should not be bred out of statutes.There should be legal impact studies on enactment of laws. Has there been a strengthening of infrastructure and increasing number of judges? Two gross examples are Section 138 of the Negotiable Instruments Act and prohibition in Bihar. When bails were not being listed, I asked a Chief Justice and he said 16 out of 23 judges are only doing bails..DR: We are on the cusp of a revolution in our criminal law system, where three laws have been done away with and updated with new ones. Do you think the overhaul and new avatars were needed? Would minor amendments have done the job?.Justice Kaul: I must confess I have not gone through the laws. They were circulated by the government, but I do not know its features. There were changes obviously required, it could not have been done by (amendments), but the political (executive) thought it was necessary.What I have heard is earlier provisions have been ipso facto inserted. My earlier concern is what legal challenges would arise, and how much litigation would be generated by this changeover and whether the government has done a study on the problems that can arise. The questions that arise after the legislation are important, and they may require some time and settlement before they are fully applied. I feel there will be litigation generated, but we generate it out of nothing. And we will have to tackle that..DR: A former top court judge recently opined that the Collegium system of appointing judges is the least of all evils. What is the alternative?.Justice Kaul: The Collegium system has worked well. When you say least of evils, it is not an evil, it is the system. Problems exist because the political dispensation thinks it should not be the system.Do we have a scenario where it is otherwise? That is what is breeding friction in my view. It can only change if the government is able to build a consensus for another law. Of course, it can and will be tested, there will be two opinions on it. But the concerns while striking down the earlier law (NJAC) are taken care of, there is a possibility (of new system).The judiciary in the Indian context has a very important role to play in appointment of judges, but it may not be the sole role to play. The government, the political people will want their space, and this is irrespective of who is in power. It is a conceptual tug of war which occurs. And if that is taken care of, I think the problem can be solved..The Collegium system has worked well. When you say least of evils, it is not an evil, it is the system. Problems exist because the political dispensation thinks it should not be the system.Justice Sanjay Kishan Kaul.DR: Ever since Court proceedings became virtual, did you become more conscious of what you were speaking in Court?.Justice Kaul: Earlier, I did have some apprehensions, that it should not become another place for lawyers to show around more and play to the galleries. We have seen this arise in Parliament sometimes. I think it has broadly worked out smoothly. I do not feel that lawyers are more exhibitive in character than they would be if this was not so. Initially, we were also a little more reserved, because I would say we felt everything was being recorded.As it is in the Supreme Court, every word is caught on, you are definitely more careful than as a judge of the High Court. As a Chief Justice of a High Court, you are very careful, especially in PILs.A lot of questions, people do not understand, are only to elicit answers as to what troubles your mind. If you are a very quiet judge...I would have a problem because you do not know which way they are going. So it is good to have a vocal judge whose questions the bar can respond to, not an over talkative or quite one.In Constitution Bench cases, everyone got to watch important cases. It took time to adjust. I believe the virtual system is here to stay, as a parallel system, and should be available in all courts simultaneously so that lawyers can choose whether they want to appear physically or not. It has an element of women empowerment, women go through greater needs at home, and if they are able to (still) attend to courts through virtual modes...I have seen this in-house.When SLPs are at the initial stage, the litigant does have to enlarge costs by hiring local lawyers. I think somewhere some courts have hesitation...that is not how courts should look at it. Your perspective and the lawyers’ view is different. In Delhi, there are so many tribunals. How will anyone who has to travel know how long earlier items will go on for? So a hybrid system helps. I have always given a first pass..DR: How do you look at post-retirement jobs for judges? Are you taking up such assignments?.SKK: To your second question, no (I am not). It is not my cup of tea, to now look at something else. I want time for myself, apart from my own rule that having been the second judge of the Supreme Court which carries its own roles and responsibilities, I would not want to venture into anything else.For contentions of political patronage etc, it is for that judge to take a call. A Supreme Court judge is a constitutional post, give them the authority to decide what is right for them.