Everyone has a political view, but a Judge learns to shed it in Court, says Justice S.K. Kaul

In conversation with SCO, Justice S.K. Kaul spoke about mediation as the hope for better access to justice and diversity in Indian Courts

Transcript: Interview | Justice S.K. Kaul, Judge, Supreme Court of India

Firstly Sir, thank you so much for taking time to speak with the Supreme Court Observer. We just have a few questions, especially in light of the LAWASIA Conference 2023, that is the 36th Law Asia Conference and the upcoming Constitution Day. 

So firstly there is a variety of discussions that we expect in the next few days. All of them, in one way or another, are rooted in the core question of access to justice. How can people access fair and reliable justice? What do you think sir, are some of the challenges in access to justice in society today?

So you know, I believe that one of our strengths is compared to many other countries, despite the judicial system being slow as it is perceived, in terms of footprints for the National Legal Services Authority, which I head, I think we are helping people in many ways to access justice. Let’s understand the basic. The basic is that first the existence of benefits which are available under existing law is a challenge. For example, women. We have changed the law, but changing the approach of society takes time, and some of them are unaware. So awareness is one important factor.

Then comes enforcement of the rights. We endeavour to see that matters can even be sorted out without going to court. Because at a village level or district level there are perceptions of what the law is, how men perceive it- especially in family law matters. And that’s the friction on the issues of monetary aspects, because real estate is involved in that, land is involved in that. Even helping the socially and economically less advantaged sections of the society by trying to help them in small things—It may be a ration card, it may be other aspects.

What I can tell you is there are paralegals. These paralegals are spread out and I call them our army, which helps out. So there is a big change in access to justice concept. It’s how you look at access to justice. Access to justice includes trying to resolve matters, taking the matters to court in every footprint of the matter. It also makes helping people in terms of reforms to see that implementation of bail orders takes place.

For example, we found at one stage in NALSA that there were about more than 5000 cases where bail had been granted and people had not been released. Now, today we are evolving the system, we are a technological system whereby all the stakeholders work together and we have been able to tackle this whereby, if bail is granted within seven days, the information will go if the person is not released. This is a method of access to justice. So somebody will go and find out why it is happening. The only thing is that in terms of volumes, we have a large volume as compared to most nations.

And what has to be looked at is that, why is there so much of delay shown? When I looked at this issue, I had an opportunity to go through studies, to exchange programmes of the Justice Department. Say in California, they say it is a model litigation but 97% plus gets settled. In our system litigation doesn’t settle. We’ve only now got the Mediation Act to enforce rights—I am a great votary of mediation. I feel in times to come, we must use mediation because no system in the world, I repeat, no system in the world, can deal with the volume of litigation.

And linked to this is the government’s approach because more than 50% litigation in India, government or a public body or a public authority, the party. Therefore they must have a more pragmatic approach to it. Unfortunately, I feel nobody wants to take responsibility. Everything is thrown into the lap of the Court. That’s another challenge.

So we are improving in access to justice but we must reduce the pipeline by taking cases out of the legal system into alternative dispute resolution mechanisms. And also, I believe that in family matters, even business matters, mediated settlement is better than an adjudicated settlement because sometimes we give them what they may not want because we are constrained by law. But on the other hand, in a mediation they’re able to get possibly better what they want. Because a mediator has a leeway to decide how it is to be done.

You mentioned the use of technology in ensuring that bail orders go through. Do you see technology as a cornerstone, perhaps, in access to justice, going forward?

Absolutely. See, the positives of what happened in COVID, It accelerated technology. You today have judicial proceedings being taken to the people. People are hearing Constitution Bench matters. People on YouTube are hearing other proceedings and a lot of people talk to me, “I see you.” It’s not important that they see you. They get a feel of what is happening in the courts. Otherwise, it was some kind of an unknown Court where they did not know what the challenges are.

Technology is certainly—digitisation is taking place, virtual hearings are taking place, we’ve been talking about benches and other issues of courts. I think with technology being used, we have actually- I’ve seen some of the states where I’ve been- district level or even high court lawyers appearing directly in the Supreme Court through the virtual system. It was a cost-element saving, it is a confidence level saving because the local lawyer will know something about it.

So I think a huge change is taking place and the government is also in this area, very supportive. They are willing to spend the money and give money for digitisation, for computerisation, for having e-courts. And I think that’s the way forward as well.

The session I’m sharing with judges is dealing, actually, with the issue of the challenges of technology and what was resolved in Bangalore 17 years ago. The dynamics have changed because when technology comes in, those dynamics will change, is what came by.

But the fundamentals remain the same.

The fundamentals will remain the same. To my mind the fundamentals are very simple. Judges should do the job honestly. I think that’s the bottom line. And you should be willing to work hard enough and have some element of common sense and knowledge of law. Broadly I think these three things are what are relevant in my perspective.

You talk about judges’ work being central to this and think that applies largely to the legal profession as well. Arguably, lawyers and members of the legal profession have the most amount of influence on society on shaping the law. In terms of immediacy, what do you think are the next steps that this community should take forward in ensuring an equitable society? 

Let’s split it into two parts. The lawyers have a role to play, but the legal profession is very inequitable in a way. We have a very bottom-heavy system. Middle is largely absent and some people- top is good. Top I include, not the absolute top, but what is happening is the work circulates amongst an x number of lawyers that breeds its own problem. And solutions possibly lie in opportunities for younger lawyers to work with seniors.

Now, national law schools all over the country are getting placements. But there are many other law schools. National law school graduates, how many of them will go and work at a district level? So you need people who are equipped to handle matters at district level also. The education of lawyers, education of law as a subject is needing reforms. That’s some part of the judgement I co-authored. Then we’ve encouraged the Bar Council to strengthen the Bar Council services. Because the number of law schools as such is very difficult to get quality without judging them at the entry point.

We have far many more lawyers than the system needs; another challenge. Of course, lawyers can go to—law graduates can go to litigating field, the corporate side, and many other areas. Some of the younger lawyers are going to teach, a very encouraging fact. At some stage of time we didn’t encourage teachers. We have complete paucity of teaching staff in most law schools where I’ve been tasked with the challenge to recruit people to come and teach. So the younger elements still are willing in some of the law schools where the economic opportunities are better.

There seems to be a trend of growing authoritarianism and shifting of powers and arguably a weakening of democracy across the world. So, many argue that this means that the executive is becoming stronger with a certain degree of untrammelled power. Is there a threat then, to an independent, robust judiciary?

See, there has always been a little turf war which goes on. So there’s a turf war in the sense that when the legislature is strong, they try to push a little. When legislatures, executives are weak, the judiciary is pushed to the next stop. The balance lies somewhere in between. Executive often doesn’t understand that it’s our job to do a check and balance. So I’ve had informal meetings where the executive come up and say some of them say ki “aap humse naraaz hein?” “Are you angry with us?” I tell them there’s nothing known as anger or being anti. This is my job. It’s my job to check you on it. Everybody would like unchecked power. And therefore when the judiciary checks that power, this problem arises.

India… it’s always been a little bit of a tussle. Appointment process itself is a tussle. The executive field, well, they passed almost unanimously a law which was struck down. That’s a fact. To which my answer is many laws are struck down, many laws are upheld. We bring another law, but still a law remains. It must be implemented. It’s not that if the views of the government are not listened to.

Having been a part of the collegium for fairly long, government input comes, Chief Justice of India report comes, IB report comes. We do independent verification and then clear. If you see the list cleared, not even 50% of the from starting point to the endpoint they get. I believe the government should take a more liberal view of these things.

I can understand somebody feels that the nominee has very strong political links. That has always been a question mark from the 1950s. But I think small, small issues. When you occupy the position of a judge, you learn to shed, for purpose of judicial adjudication, your cloak. Look at Mr. Krishna Iyer. Undoubtedly a leftist who came here and a celebrated judge. Nobody objected to his political inclination.

So the question is that man is important, who is that one who is coming? He’s in a position to shed his perspectives because nobody is in that sense apolitical. Everybody will have political inclinations. Certainly in India everybody wants to talk about politics and more politics. That’s always there.

But in the judicial work to be able to keep that aside and do so? I believe over a period of time, that we are trained for that. We do keep those things apart. And that’s the reason sometimes the same guy will give a verdict which the government will not accept it, the same guy will give another verdict which the opposition finds it difficult to accept. The reason is that in his best judgement he is trying to do what he feels is right.

You brought up the collegium and the importance that it has. And often the collegium is spoken in the same breath as diversity is, and the fact that the court should look like the people that it seeks to protect. What are our challenges in ensuring proper diversity, in ensuring representation in our courts? Not just the Supreme Court, but lower courts as well.

So diversity, if you see, there are many aspects of diversity. One aspect is regional diversity. Always happens. But sometimes in a particular cohort, there may not be a person whom we perceive is fit to come to the Supreme Court. So you wait, you wait till somebody is eligible. It’s not necessary that in every court, at a particular stage of time, there will be by seniority somebody brought up. If you ignore seniority, you go a little down, you can’t go drastically down because of the dynamics of the issue.

Second is women representation, which is often talked about. See, I always tell them that women should have joined the legal profession in many large numbers earlier. The dynamics did not have it. Today, the recruitment processes, invariably more than 50% are women. At the district level, they are happening in places like Bihar, I went there, and many other places. In Delhi, the last selection I did 10 years back, 10 years back, it was 73% women. It’s not the paucity of women there.

One, of course, is a profession as such takes time. It’s more difficult certainly, as in any other field, for a woman to establish themself. I accept that. So at the district levels, promotional level, they will become eligible to a High Court after a certain number of years.

Today, if the recruitment on average is more than 50% women, about 36% women even now exist in this subordinate judiciary. Now, for elevation of High court from the bar, somebody should be eligible who has joined the profession at that particular state. So when you say, “oh, you’re not giving representation”, that’s not there, we look to it. We sometimes lower the benchmarks to see that we can get diversity.

I have been in Chandigarh, I have been in Chennai, Delhi. I think we keep recommending a very large number of women. Sometimes we find that at the particular age profile we are looking to 45 to 55. 45 Has to be in exceptional cases. 45 to 48 would be somebody with a long tenure, but is exceptional. So there’s an age restriction profile within which selection takes place. Therefore it’s not fair. Sometimes lawyers say, “oh, if there are so many in this school? Why not in the high court?” It’s not in the High Court, because there are not enough women lawyers in that age profile. That’s the problem.

Third is representation community wise. They are there. But even again, if the benchmarks are kept more considerate, it’s difficult at times to get from some community at a particular stage of time, people. It’s not that they are not available.

I presided over Chennai, which has a particular orientation towards community and caste. I endeavoured to pick up the best from that subsect or sect. There it goes sect, subsect, sub-subsect. I’m trying to work it out in that manner. Delhi, nobody bothers in the area. Which part of the country you come from, which community you belong to. So it depends on the dynamics of the place. What is the history, what is the accepted social norms from which it comes? Yes, certainly more people are involved, but availability in the relevant age of a relevant calibre is required. I think as things will pass, it will happen.

Let’s look at services when the reservation for OBC was made. They were less. As time has gone by, a lot of them in some places are performing even better than the general category candidates. It’s a process of time. There’s no wonder wand to be waved. This will not happen in one day.

On the 26th of November, Sunday, we’ll be celebrating Constitution Day. Do you have a message for our viewers?

I’m speaking on a particular aspect and I don’t want to speak here on that aspect. I’m introducing on the law day. But I would say, broadly, its constitutionalism, which needs to be preserved, which is, all stakeholders must realise that the Constitution provides a particular manner. It is the prime document and therefore all law will be tested on the Constitutional benchmark.

Maybe better preparation of law sometimes, I feel, is a necessity because the problem we face at times with hurriedly brought law, creates its own dynamics till the creases are ironed out. I believe legislative drafting is a very important part of it.

In light of the session here that we can expect for the next few days, what are you looking forward to, Sir, at the LAWASIA Conference?

So LAWASIA is debating many aspects. I am, of course, a part of the session. I’m a part of the session because I have next three days of conferences. We are having law day on 26th, 27th, 28th- we have the international NALSA Conference for the first time, where participants are coming from, especially Africa and Southeast Asia, which is what we look to in supportive systems. There is also the technological conference held on 29th, which I am opening up, which talks about use of technology.

So if you see what LAWASIA is talking about, they’re talking about the growing need of technology, the growing use of technology, and how to control technology. All three are important. But I do believe that human species is the most important. A judge works with both his mind and heart. You can’t work within parameters. There’ll always be a little bit of discretion. There will always be a heart element. No machine, no system can get that human element. So humans must operate technology and having the right humans operate the technology is important.