It does not send a good message: Justice Sudhanshu Dhulia on Allahabad HC judges writing to CJI

From the the Allahabad High Court to the highest court in the country, Justice Sudhanshu Dhulia has travelled a path shaped by constitutional ideals and years of appellate work. In the Supreme Court, his judgments often carried a distinct voice, marked by clarity, restraint and cultural awareness.

In this interview with Bar & Bench's Debayan Roy, he looks back at the formative influences that shaped his approach to judging and reflects upon the fault lines within the justice system. He speaks on what it means to hold fast to constitutional values in turbulent times, and on the demands placed on judges in an overburdened judiciary.

[Watch Interview]

Edited excerpts follow.

Debayan Roy (DR): Your colleagues often say that you brought the Allahabad High Court culture to the Supreme Court. What, in your view, defines that culture?

Justice Sudhanshu Dhulia: In my view, Allahabad culture would be a culture of tehzeeb - the manners of a lawyer in a courtroom and also the manner in which a judge conducts himself in a courtroom. That is what probably Mr. Tushar Mehta meant when he said it...

...You learn gradually. There were some unpleasant incidents in Allahabad as well, but by and large I have seen lawyers showing a lot of respect to judges and judges treating the lawyers very respectfully.

I have said it in my speech also. There is a former Chief Justice of Israel’s Supreme Court...President Aharon Barak. In my view, he is the most powerful jurist in the world. He has written many books...He says somewhere that whenever he was conducting a trial, he was also on trial. And therefore, when you are in the process of giving a decision, there is a man sitting somewhere in the courtroom also who is trying to judge you.

In a case, one party wins, the other loses. But the one who loses will not be so unhappy if they know they have been heard, that their lawyer did their best, that the judge gave them a patient hearing...That is procedural justice. That should always be in the mind of a judge.

DR: In the backdrop of the recent Supreme Court and Allahabad High Court exchange over roster control, what is the right equilibrium between appellate jurisdiction and institutional comity?

Justice Sudhanshu Dhulia: See the agony of a judge (Justice JB Pardiwala) when he is seeing (something) and he is not seeing it once, he is repeatedly seeing it. I am not saying that everything that was said was right, but it is very agonising for a judge to see...Most of the cases finish at the High Court stage. So if that quality of judgments is coming, you should see how agonising it must have been for the concerned judge here.

One of the finest persons and human beings I have met in my life..,he (Justice Pardiwala) hardly attends functions. All his time is concentrated on writing judgments or preparing for cases. Over the last three years since he is here, he is perhaps the most prolific judge...

...The last line (of his order) perhaps could have been avoided when he said “till he demits his office.” That happens with anybody. But apart from that, by and large, you can see the agony of a judge.

DR: After a day, there was an order from Justice Pardiwala’s court where he said “here comes another order of Allahabad High Court in which we are again disappointed.” Does that symbolise the kind of judgments he is seeing from that particular High Court?

Justice Sudhanshu Dhulia: It is the biggest High Court in the country, with around 85 or 90 judges. They are human beings and there can be genuine errors.

DR: In your tenure as a Supreme Court judge, have you been disappointed repeatedly by High Court judgments?

Justice Sudhanshu Dhulia: Not of a particular High Court. Why do you not see the better side of the Allahabad High Court? See the judgments from the 1950s and 1960s...judges like Justice Syed Mahmood and Justice Shah Muhammad Sulaiman...And see the conditions in which the judges are working there...the workload is mind-boggling. Allahabad High Court judges are perhaps doing the maximum work...Fresh petitions come up after three or four days. They are in a tight spot.

By and large, judges in Allahabad are fine. They are upright judges, they are learned judges, and they are doing their best in very difficult circumstances. The infrastructure is not what it should be, the number of supporting staff is inadequate, and yet the judges there manage to deliver a huge number of judgments every day.

DR: Was the collective letter by 13 Allahabad High Court judges a healthy assertion of High Court autonomy or does it risk deepening institutional fissures?

Justice Sudhanshu Dhulia: Definitely not. In my personal opinion, this should never have been done. This is not the way.

DR: Would you ever have been part of such a delegation?

Justice Sudhanshu Dhulia: Never. I would have expressed my opinion in private, told my Chief Justice...but not like this. There are ways of resolving things. After all, it is a fraternity...It does not send a good message. I think it is disturbing.

DR: The cash discovery controversy involving a sitting judge has turned up the scrutiny on the judiciary. How does the judiciary recover its image after the episode?

Justice Sudhanshu Dhulia: I would not like to comment on it because that is kind of sub judice in many ways and I happen to know the judge. It would not be proper for me to comment on it.

DR: Do you think there is merit in the allegations?

Justice Sudhanshu Dhulia: I do not know. I have seen the report, but let it come out. There is an inquiry going on. Let us wait for that.

DR: Do current in-house mechanisms for accountability of judges meet the demands of transparency or do they need structural change?

Justice Sudhanshu Dhulia: No, it is fine. We have a kind of code...the Bangalore Declaration, where the do’s and don’ts of the judges are very well defined and by and large everybody follows that. We have also disclosed our assets on the website.

DR: In your dissent in the Karnataka hijab case, you framed the issue as one of access and dignity. How do you respond to critics who saw it as identity-driven judicial activism?

Justice Sudhanshu Dhulia: See, it is a free world. They can have an opinion, you can have an opinion, I can have an opinion. But one thing people do not understand and I think somewhere they have not properly understood the judgment. In my judgment, I am not defending hijab. Probably if I had a daughter, I would not like my daughter to wear a hijab. But if she wants to wear a hijab, who am I to stop her? What I was defending was the choice of women to wear hijab, not hijab itself. There perhaps people have not understood it.

DR: Was it also because you had petitioners before you who were hijab-wearing women?

Justice Sudhanshu Dhulia: No, no. There was a principled approach which I took. You are asking a woman, a girl, to take down a hijab...it is an attack on her dignity. I was also following earlier judgments of the Supreme Court, even by Justice O Chinnappa Reddy in Bijoe Emmanuel v. State of Kerala. Justice Reddy has said so beautifully that our religion teaches tolerance, our culture preaches tolerance and our Constitution of India practises tolerance. Let us not dilute it.

I wrote that judgment in that spirit of tolerance. That is how it should be understood.

DR: Do you believe that the Supreme Court needs clearer principles on when to intervene in matters touching religious identity, language rights, or cultural symbols?

Justice Sudhanshu Dhulia: These are very delicate issues. India is a country of such diversity. There are so many religions, so many cultures. You walk 300 miles, there is a change in climate. You walk another 200 kilometres and there will be a change in language. We cannot but be tolerant to one another. That has to be there in our society. We cannot survive without it.

DR: So you mean to say that the principle on which the Supreme Court should function is the principle of tolerance?

Justice Sudhanshu Dhulia: When I was giving the hijab judgment, I saw precisely in many earlier judgments of the Supreme Court, the Court has tried to see what are essential religious practices... between Articles 25 and 26 and all that. In my opinion, at times, it is very difficult, and the Court should not define what is essential in a religion and what is not essential in that religion. Let those people who belong to that religion describe it, unless and until it is against public order or something.

DR: Why do you say courts should not define what is essential?

Justice Sudhanshu Dhulia: Because it is not their job...Sometimes a situation may come when you have to, but I think there the courts are entering into a very delicate area.

DR: Then what is your view on the triple talaq judgment?

Justice Sudhanshu Dhulia: The triple talaq judgment is on various grounds. It is again on constitutional values, constitutional rights. And when you weigh those factors against these practices, then of course you will be protected by the Constitution. Broadly it is that. But such situations are once in a while. By and large, where the Supreme Court has interfered in the essential religious matters of a particular community performing a particular ceremony...

DR: The Supreme Court has been a polyvocal institution since inception. We had two former judges, Oka and Trivedi JJ, having diametrically opposing views on bail being the rule. On principles like these, do you think it is necessary for judges of the Court to speak in one voice?

Justice Sudhanshu Dhulia: Yes, ideally that should be the case, but ideals cannot always be achieved. All judges cannot think the same. Judges will have their own ideas and perceptions. But yes, I follow the principle that bail is the rule and jail is an exception.

DR: On the long-standing issue of pendency.. there are critics who believe that an overburdened judiciary is what the executive wants, given how much litigation stems from government appeals. Do you agree with this view?

Justice Sudhanshu Dhulia: I would not know, you can ask the executive about it. Whether they are consciously doing it, I do not know. I hope not. But the Supreme Court is overburdened with appellate jurisdiction...If it were less, it would be better.

DR: Have you ever thought that a separate Supreme Court of Appeals is a workable idea?

Justice Sudhanshu Dhulia: That is a thought which has come to the minds of many judges...Between the High Court and the Supreme Court...something like Sri Lanka’s appellate court.

DR: But wouldn't that court’s judgments be appealed again?

Justice Sudhanshu Dhulia: It should stop there. You cannot stop Articles 32 or 136, but some relief to the Supreme Court’s burden would be there. Most of our time is consumed by bail matters and matrimonial transfer petitions...The Court should be deciding constitutional matters...that is what it was created for.

DR: You narrowly missed out on being part of the Collegium. The process of appointments has long been criticised as “give and take” between the judiciary and the executive. Given the government’s inaction on a number of Collegium proposals, do you think it is time for a different approach?

Justice Sudhanshu Dhulia: When the NJAC Act was challenged in the Supreme Court, instead of two 'eminent persons' (as part of the NJAC), there could have been one eminent person and the other from the executive...along with the Chief Justice and two senior-most judges. The purpose could have been achieved. But the NJAC was struck down, so we are stuck with the present system. Sometimes appointments are delayed, but they eventually happen.

DR: In the years ahead, what is the greater threat to judicial independence - political interference or erosion of public trust?

Justice Sudhanshu Dhulia: The entire judicial system stands on only one thing - the trust and faith of the people. I hail from a remote part of the hills, but even there when a villager has a problem...he says, “I will go to the High Court and get a stay.” That is trust. If trust is not there, no matter how big the building or how decorative your courtrooms are, they will mean nothing.

DR: In the Urdu signboard matter, what constitutional values did you aspire to uphold?

Justice Sudhanshu Dhulia: When this petition came, it had already been dismissed by a Division Bench of the Bombay High Court with a very good judgment...I could easily have dismissed it under Article 136 in one line. But my brother judge said, “No, instead we will have to say something. Let us hear the other side.”

Ultimately, it comes back to tolerance. Urdu is an Eighth Schedule language. English is not there in the Eighth Schedule...Urdu was the language of courts earlier. It got a bad name because of the partition of the country and because it became the national language of Pakistan...

...I am learning Urdu from a gentleman in Lucknow named Abhishek Shukla. His wife’s name is Jolly and his son is named Mir. When officials came to make their Aadhaar card, they said “What is this — Amar Akbar Anthony at home?” and were surprised. Urdu is their language at home.

My maternal grandfather was an Arya Samaj pracharak in Lahore before independence. In the morning he would read the Arya Samaj newspaper in Hindi. In the evening, he would read another paper in Urdu, because his neighbour was a munshi of a lawyer there...

...Urdu is a profound Indian language, born in India...Do not make it alien. My brother judge Justice Vinod Chandran, who does not understand a word of Hindi or Urdu, but understands the Constitution, said: “Change ‘make friends with Urdu’ to ‘make friends with all the languages of this country’.” We are not defending Urdu...we are defending the Constitution and the diversity of India.

DR: What has been the most challenging decision of your Supreme Court tenure and why?

Justice Sudhanshu Dhulia: I cannot say most challenging, they were all... You can say the hijab judgment for one, because I was new here, staying in the guest house, with logistical issues. It was the first major decision I was making, on a subject where I knew there would be opinions both ways. I did what was right. You have to write so that what you are thinking is rightly reflected in your words, because sometimes the words do not convey what you want to convey.

DR: If you could change one systemic aspect of the Supreme Court overnight, what would it be?

Justice Sudhanshu Dhulia: There are so many things to be done...But if there were some mechanism to lessen the burden of the Supreme Court in bail and matrimonial matters...a lot of the Court’s time would be saved for deciding constitutional matters...there are many grey areas where different High Courts have different opinions on a subject...those have to be creased out.

DR: Do you think judges should accept post-retirement positions? Would you accept if offered one?

Justice Sudhanshu Dhulia: Definitely not, as far as I am concerned...Each judge to himself. I do not see any harm if somebody accepts a dignified constitutional post, somebody has to do it. But I will not, at least for some years. I would like to remain in peace, read, and travel.