"There is no smoke without fire," Former Bombay High Court judge Justice SJ Kathawalla on allegations against the judiciary

Justice SJ Kathawalla, who recently retired as a Bombay High Court judge, speaks about allegations against the judiciary, the motivation to hear cases beyond court working hours, and more.
Justice SJ Kathawalla, Retired judge, Bombay High Court
Justice SJ Kathawalla, Retired judge, Bombay High Court

Even from an office offering a panoramic and often distracting view of the Arabian Sea, Justice SJ Kathawalla, who recently retired as a judge of the Bombay High Court, can be found reading case papers.

Known for his industry, Justice Kathawalla used to frequently sit well past court working hours to hear cases. After spending over a decade on the Bench, he demitted office in March this year.

In this interview with Bar & Bench's Neha Joshi, the retired judge spoke about courts becoming political battlegrounds, the motivation to sit and hear cases beyond court working hours and his style dispensing of justice.

Edited excerpts follow.

What motivated you to sit beyond court hours to hear cases?

The motivation was to decide maximum number of matters and provide relief to litigants who wait patiently, often for years together, for interim orders.

It is well known to all that one of the main problems faced by the judiciary is the acute shortage of judges. The Bombay High Court has never functioned at its full strength. The Chief Justice is, therefore, helpless and the judicial work allocated to one judge is so voluminous, that if the High Court functions at full strength, the same would have been distributed to 2 to 3 judges.

Despite attending to matters in court during the allotted timings (which is 11 am to 5 pm with an hour’s lunch break), I observed that there were several matters on the causelist (daily board) which could not be called out in this limited time span.

A lot of litigants would end up waiting in the court room the whole day, in anticipation that their case would come up, only to leave the court completely dejected. Not only would their matters be not called out, there was uncertainty as to when their matter would next come up for hearing.

I, therefore, initially started sitting in court for a few additional hours and tried to call out at least all the matters which were listed in the causelist for the day.

I soon noted the immense satisfaction on the faces of litigants who would leave the court room with a sigh of relief that their matter was either disposed of, or at least that the hearing had commenced.

It also gave me some joy and job satisfaction to observe the smiles on the faces of advocates, particularly junior advocates, that their matters were being worked out, or that they got an opportunity to address the Court, after all the effort that they had put into their respective matters.

What do you think about the recent allegations casting aspersions on the independence of the judiciary?

I have been a judge of the Bombay High Court for almost 14 years and I am proud to say that I have not even once been pressurized by any agency from any quarter. Therefore, personally, I have not experienced any interference while carrying out my judicial duties.

Having said this, coming to your question as to what is my take on the recent allegations casting aspersions on the judiciary's independence, I would only say, "there is no smoke without fire".

There is no smoke without fire.
Justice Kathawalla on allegations against the judiciary.

Chief Justice Dipankar Datta had recently lamented the rising vacancies in the Bombay High Court, with eleven judges retiring and no new appointments on the horizon. How much will it affect the Court's administration of justice?

Shortage of judges has already affected the administration and justice delivery system.

To give an illustration, interim applications are pending in the High Court for final disposal since the last several years. The same is the case with appeals from interim orders and appeals for admission from interim orders. Many a time, such matters become infructuous before they are heard.

Shortage of judges has already affected the administration of justice.
Justice SJ Kathawalla

Do you think the fact that courts are turning into political battlegrounds is increasing their burden?

Yes. I am, therefore, of the view that the Court should, wherever possible, treat such litigation as ‘luxury litigation’ and hear such matters only in normal course, instead of giving precedence to the same.

In the recent past, there has been a rise in 'celebrity litigation' at the Bombay High Court, and there have been allegations that those get priority listings. What are your views on that?

It depends on the type of the matter. If it pertains to demolishing the house of a celebrity without following the prescribed procedure, or the image of a celebrity, or if his/her family member is under attack, and that too without evidence, the courts, as in other matters, need to interfere at the earliest.

If on the other hand, the celebrity approaches the court with unclean hands, and requests for an urgent out of turn hearing, his/her matter should be taken up only in normal or regular course.

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Word in the corridors was that you had a unique style of justice and that litigants felt comfortable talking to you. What do you have to say to that?

My style of justice can be termed as ‘instant justice’. I believe that a judge should be proactive (in rendering justice). Granting a mere order of injunction and appointment of court receiver, and thereafter, final disposal taking place after a decade or two, is, in my view, no way of delivering justice.

Instead of spending time hearing the technicalities argued by advocates, I preferred to talk to the parties directly, understand the moot problem which was troubling them, explain to the erring party why he/she/they are wrong, balance equities and pass an order which would make both parties happy. If it makes only one side happy, then the other side should leave the court with a feeling that they were heard by the judge, the view of the judge was correct, and they should, therefore, accept his verdict.

There were parties who repeatedly left the decision to me stating that they are sure that my decision would be fair, whatever the decision is, and that the same would be accepted by them. Thereafter, even if due to my verdict one side got no relief, they would leave the court, in most cases, accepting the fact that my order was just.

It is because of this confidence - that after hearing both parties I would not be unfair and would pass an order keeping the interests of both parties in mind - that the litigants were anxious to address me directly and accept my final verdict.

My style of justice can be termed as ‘instant justice’.
Justice SJ Kathawalla
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For the last few years, you were dealing with cases related to inaction of civic authorities. Do you have any word of advice for the authorities to ensure they avoid mounting litigation?

Litigation against civic authorities is mounting because persons approaching civic authorities for permissions or orders etc do not get the required response from the concerned officials for a long period of time.

Several times, responses received by an applicant display lack of understanding or non-application of mind on the part of the person giving the response. Also, orders and directions passed by the court are not complied with, which results in filing of several contempt petitions.

Often, the in-house and panel advocates of the authorities are not equipped to render effective assistance to the court. When a judge is tough and reprimands an authority with respect to its functioning, instead of improving its working, attempts are made to criticize the judge and attribute motives to him.

More than two years ago, I had gone out of my way to advise civic authorities to reconstitute their panel of advocates and also tried to follow up on the same. I was informed that hundreds of advocates had applied for empanelment. However, to the best of my knowledge, until my retirement, the panel was not reconstituted.

Advice can be given only to those who are keen on improving their lot and not otherwise. However, since you are seeking a word of advice from me for the authorities to avoid mounting litigation, I would advise the following:

  • Set out timelines for officials to attend to the applications made by individuals seeking permissions and/or seeking redressal of their grievances and taking strict measures against the officials who fail to comply with the timelines without reasonable justification;

  • Take strict action against the staff involved in committing breach of directions or orders passed by the court without reasonable justification;

  • Raise the remuneration of in-house lawyers to ensure that competent lawyers come forward and offer their services for the purpose of drafting pleadings and advancing arguments in court;

  • Ensure that competent lawyers are enrolled on the panel of the civic authorities and thereafter ensure fair distribution of briefs amongst the panel lawyers;

  • Summoning a higher official to court does not give any joy to the judge. The higher official, when summoned, instead of being sensitive, should not be stubborn and wrongly defend his officials, but must try to appreciate the grievance of the court and attend to the same to the best of his ability and as promptly as possible;

  • Constitute a committee of very senior and trustworthy officials to look into the complaints of illegal gratification by any staff or official for quick disposal of files and take stern action against them if found guilty.

To what extent can a constitutional court intervene in matters of the executive? How is the right balance achieved in this regard?

A constitutional court should as far as possible not lightly interfere in actions of the executive and should interfere only in such actions of the executive which can be termed as ‘illegal’ and/or ‘unconstitutional’.

What does Justice Kathawalla do during vacations or holidays? Any hobbies, interests?

I have not taken a single vacation and have attended my chambers and court during every vacation, including on Saturdays. I have not taken any holidays, except when I was hospitalized or when I was so sick that I was unable to get out of bed.

I have no hobbies. My legal practice and my work as a judge have been my hobby and passion for as long as I can remember.

Initially, I used to attend musical shows, but I gradually gave up that also.

I have no hobbies. My legal practice and my work as a judge have been my hobby and passion.

What are your future plans?

I do not intend to accept any brief before any court in the country. My days of addressing any court on behalf of any client are now over. I have already started doing arbitration, mediation and giving oral as well as written opinions in matters referred to me.

There again, I find it fulfilling to find solutions to end disputes, rather than agitating points of law and fact before a court in a long drawn-out chain of litigation and endless proceedings.

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