NJAC shouldn't have been struck down completely; uncertainty in appointments dissuading good people: Justice Vipin Sanghi

Having been a judge for the better part of 17 years, Justice Vipin Sanghi was one of the longest serving judges of the Delhi High Court..The Delhi Bar remembers him as an upright workaholic and a no-nonsense judge who spoke his mind. In his courtroom, a lawyer’s seniority did not determine the time they got to argue the case.He is also credited with the introduction of the famous cold coffees at the Delhi High Court.Perhaps his finest moment as a judge was during the COVID-19 pandemic, during which the citizens of Delhi struggled to find oxygen for those who had taken ill. A Bench headed by Justice Sanghi issued a slew of directions prompting the government to arrange for oxygen and medicines. The Court held hearings almost on a daily basis and its efforts saved countless lives.Justice Sanghi was later elevated as Chief Justice of the Uttarakhand High Court in June 2022, a post he held till his retirement on October 26, 2023..In this interview with Bar & Bench’s Prashant Jha, Justice Sanghi discusses issues surrounding in judicial appointments, why he thinks the National Judicial Appointments Commission (NJAC) should not have been struck down completely and the misconception about judges taking long vacations. .Edited excerpts follow..Prashant Jha (PJ): You were on the Bench for nearly 17 years, and before that, a lawyer for two decades. What is life in retirement like after such a long tenure? .Justice Vipin Sanghi: I feel much lighter. I have more time to myself and I am looking forward to doing things which I have not been able to do till now. I will pursue some hobbies, travel, and spend time with my granddaughter. I am feeling happy about it..PJ: Tell us about your days as a young lawyer. How has the profession changed in these four decades?.Justice Sanghi: When I started off as a young lawyer, things were done in a very traditional way. In those days, the five-year law course was not even there. All youngsters would join seniors and did not expect to get paid. Very often, we were not paid anything; not even a stipend. The whole idea was to get an opportunity to learn. It was a one-sided affair. I think that has changed a great deal.Now, I find that when youngsters come in for interviews, they have more questions than the person looking for a junior. Young lawyers want to know about the working conditions, pay and other things. Also, I find more and more first-generation lawyers coming into the profession. This is a very good thing. The national law schools are throwing up some good young advocates.When I studied law, it was not the first choice for many people. They would take up law because they could not get into their preferred course. But today, we find young bright people joining the profession and that has brought a lot of academic excellence..PJ: You were elevated as a judge in 2006. How was this transition from the Bar to the Bench?.Justice Sanghi: It was very drastic. When I was a lawyer, I used to think that as soon as it was 4:30 PM, the judge got up from his chair, sat in his car and went home. I did not realise till my last day as a lawyer that a judge has much more to do. They have to correct orders, read the files for the next day and work on reserved judgments. The workload is extreme, especially in Delhi.As a judge, I would not leave my chamber till 8-8:30 PM. Initially, I was one of the last few judges to leave the court. Over the years, I found that there were many younger judges who were working even harder. But I can say this is a very demanding assignment. There was no time for anything else..PJ: In your farewell speech as Acting Chief Justice of the Delhi High Court, you said there is some ignorance about the workload of judges. You come from a family of lawyers, yet, you did not realise that judges have so much work?.Justice Sanghi: No, I did not. A lot of people talk about judges taking holidays and having vacations when there is so much workload. People don’t realise that these vacations are not only for relaxation or for unwinding. In my 17 years as a judge, during every vacation, I worked on my reserved judgments. At most, there was one or two weeks of vacation. As judges, we are working even on Saturdays and Sundays. So, it is a very heavy work schedule and these breaks are essential for us to keep our balance and sanity..PJ: During the second wave of COVID-19, you headed a bench that sat for several hours and heard petitions filed by hospitals and people who were in desperate need of oxygen and medicines. How did you come to deal with these matters?.Justice Sanghi: The suo motu petition was initiated during the first wave of the pandemic. When it came up before me, the first wave was gone and everyone thought we were done with COVID. I did not see any point in keeping it alive, so I closed it. But as the second wave started to come, we saw the situation getting worse and, therefore, we revived it.The situation then was very desperate. It was unprecedented. Nobody was prepared for it and no one could be prepared. It is something that happens once in a century. I don’t think it would be right to name anyone for the crisis. It was a crisis that all of us faced, all over the world. Our Division Bench just tried to do whatever we could in that situation. I think anyone in my position would have done the same..PJ: Don’t you think that these are issues that the government should have dealt with without court interference?.Justice Sanghi: The government is working. It does not stop working. But sometimes, the attention of the government is not as focussed as it should be. So, a nudge from the court in a Public Interest Litigation (PIL) activates the government. So, that helps..PJ: How do you look at the role of constitutional courts in dealing with matters of public importance? The High Court and the Supreme Court have been passing orders to tackle the Delhi pollution issue, but the situation has not improved..Justice Sanghi: First, we [courts] are not experts. So, we must rely on experts. The Court can only try to galvanise the system, nudge the authorities to act. But a complex situation like Delhi pollution involves other states as well. In this, the courts could play a role in facilitating coordination between various states and functionaries. My own personal view is that courts could help nudge governments to put their heads together and look at this..PJ: There is a blanket ban on crackers. There are directions to stop stubble burning. Yet, these activities continue. There is a sense that the orders of the courts are not being complied with. Do you think that government authorities are sometimes reluctant to follow court orders?.Justice Sanghi: I do not think it is a question of reluctance on the part of the authorities. On Diwali, lots of crackers were burst in Delhi even this year and this went on for hours. I think that is a result of leakages in the system. When the sale is not permitted, the question is where do these crackers come from? Obviously there is black market going on and this black market cannot sustain without the blessings of the local authorities. So, there is a problem there..PJ: How can the courts ensure due compliance? Is contempt the way?.Justice Sanghi: Contempt may not always be the way. The court must ask the authorities how it happened. For acting under contempt, you will have to pin-point a particular officer and say how the officer wilfully disregarded the orders.As far as stubble burning is concerned, that is again a problem. That has economic facets to it, so it will continue unless you provide farmers with a viable alternative. If you do not do that, it will go on. You cannot expect farmers to incur a loss because there is pollution in Delhi..PJ: As Chief Justice of the Uttarakhand High Court, you dealt with several issues concerning the environment and development projects. Every day, we see disasters happening in Uttarakhand and Himachal Pradesh. How can we balance development in the hill and mountain regions while preserving the environment? What is a court’s role in it?.Justice Sanghi: One needs to understand what is development. Is development only about building big malls, skyscrapers and broad highways? In a hill state like Uttarakhand, where you have beautiful nature, very good forests, mountains and rivers, my understanding of development is that it should be neat and clean. It should be unpolluted. There should be proper schools and medical facilities. I do not think it is a state where the administration should look to have big malls or big cities, particularly in hills.You can develop tourism, you can have cottage tourism, provide better connectivity. But I do not think the way forward is to go into very large scale projects. We have seen what happened in Himachal this year. If Uttarakhand has not suffered as much, it is only because the extent of development, as understood, is not that much there..PJ: In your farewell speech as Acting Chief Justice of the Delhi High Court, you remarked that uncertainty in judicial appointments dissuades lawyers from giving their consent to become a judge. Can you elaborate?.Justice Sanghi: Since I became a judge, there has been a marked increase in the time taken for the appointment of judges. Today, the time it is taking - from the recommendation being made to the point of appointment - is very long. There is always uncertainty about what will happen.We saw it in Delhi where a particular Chief Justice sent some names for appointment. I thought these were very good names. But they were not appointed and that list was given a complete go-by. In fact, when that list was pending for a long time, one person withdrew his candidature..Incidents like these leave a very bad taste in everybody’s mouth, particularly for the candidate. He is constantly under gaze. People are asking questions. It is very embarrassing for him to deal with his colleagues at the bar. The situation gets further aggravated if the recommendation has been made by the High Court and the Supreme Court Collegiums and yet, the person is not appointed. It is very unfair to the candidate. They begin to think that they should not have given their consent in the first place.People who are doing well in their profession wonder why they should get into this kind of controversy. There is reluctance that their appointment will not go through even if the Collegium makes the recommendation. This is bringing in a lot of reluctance among the good people..PJ: You have headed the High Court Collegiums in Delhi and Uttarakhand. Can you tell us about any such incident where an advocate did not give consent for elevation because he/she thought that names may not get cleared?.Justice Sanghi: In Delhi, I did not hold Collegium as Acting Chief Justice. However, when I was part of the collegium, I was asked by the then Chief Justice to find out about a few lawyers and whether they would be willing to be part of the Bench. I asked the lawyers, but they declined. There were at least three people who said no. I do not want to name them. They had their own reasons. I do not know whether what they told me was the true reason, but they had their own reasons..PJ: There are also examples of names reiterated by the Supreme Court Collegium, which the government has not notified. What is the solution to this?.Justice Sanghi: I am of the view that judges should not have the exclusive power to appoint judges. I feel the government should also have a say. My own personal view is that the National Judicial Appointments Commission (NJAC) should not have been struck down completely.I think it should have been read down to have a majority of the judges in the committee. Because today, we are facing the same situation where the recommendations for appointment or transfer are not going through. So, what is the point? I think it would be better if we have a system where we have the NJAC, but the majority view should be that of the judges..PJ: There are arguments that what is happening today is probably worse than the NJAC because the government is ‘picking and choosing’ the judges. This is even disturbing the seniority..Justice Sanghi: I think that should not happen. It is not correct..PJ: What about the quality of judges that are being appointed now?.Justice Sanghi: I think the quality is pretty good. In Delhi, the quality of judges has always been good. We have had stalwarts like Justice AK Sikri, Justice Pradeep Nandrajog, Justice Sanjay Kishan Kaul. I have shared the Bench with many of them. We also have some very bright youngsters on the Bench now..PJ: There is a sense that judges from bigger courts do not want to move to smaller courts. These transfers are seen as punishment postings. What are your thoughts on this?.Justice Sanghi: I do not look at it that way. I think wherever you go, there is so much to be done. There is a lot of scope and I was very happy in Uttarakhand. Not even for a day did I think that I had been sent to a small court. I am very satisfied with my tenure as Chief Justice there.Delhi is the premier High Court and one of the reasons for that is the systems we follow. When I went to Uttarakhand, I thought some of the systems were quite archaic and they were just continuing like that. I tried to bring some changes and they were welcomed by the Bar as well.For example, there were no fixed dates given in matters. Every day, I would find that there were mentionings for the first 45 minutes. Lawyers would say their matter was listed in 2020 and has not come up since then. So, I said we must have fixed dates..PJ: There are also concerns that because there is a lot of money in legal practice in Delhi or other metros, a lot of lawyers from smaller places are migrating to these cities. How do we ensure that the quality of lawyers in smaller cities gets better?.Justice Sanghi: There are economic factors at play. Any person who is good in Uttarakhand or a place like that would want to try his luck at the Supreme Court or the Delhi High Court. So, that cannot be stopped and that should not be stopped.But the Bar in Uttarakhand can improve with the quality of cases improving. Which means more commercial litigation coming in. That can happen and is bound to happen..PJ: You are credited with introducing the famous Delhi High Court cold coffees. Can you tell us the story behind that?.Justice Sanghi: [Smiles] As young lawyers, we would go to the kiosks for our evening tea. Rakesh was there and he used to sell juice. I gave him the idea that he should make some cold coffee for us in the summer. We taught him how to make it, he was also an expert. He made some coffee and it was good. Soon, it got popular.One day, I saw a lot of people ordering cold coffee. I joked that he should give me royalties. He said, “Sir you don’t know, I am already charging you ₹2 less.” So that was the nice gesture he was bestowing on us without us knowing..PJ: Finally, what are your plans now?.Justice Sanghi: I have already started practicing in the Supreme Court. Since I was already a designated Senior Advocate, I did not really have to wait. I went to the Supreme Court on October 30 and I met some friends. I was a litigator for 20 years before I became a judge and I think that is where I belong. I would like to continue to do that as long as I can. .Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.