Be impartial but not impassive : Justice Chandrashekhar Dharmadhikari
Flair Interview with Hon'ble Sh Justice Chandrashekhar Dharmadhikari, Former Acting Chief Justice , Bombay High Court
Q. Can you speak about your forayinto law - the initial challenges andhurdles you faced?
When I joined the Quit IndiaMovement at the age of 14, I wasrusticated and prohibited from joiningany recognized school, therefore, Istudied privately. We had decided onething that we will not serve the British.I wanted to be independent and Ithought that law is one of the obviouschoice. Here you don't require muchinvestment and with intelligence,dedication and common sense, one canstand on his own legs.
Also, while opposing the Britishers, wesaw that injustice was done to thepeople of India. The colonial justicesystem was oppressive and was used bythe Britishers to keep India in slavery.We believed that nobody shouldtolerate injustice. I remember one ofthe famous Arabian verses when theyremember their God, “The one who iscompassionate towards us is Rahim,the one who cures us is Hakim and theone who protects us from injustice isVakil.” Therefore, I thought that it is anoble profession. Today, the professionis noble but the professionals may notbe necessarily noble. When I had started, I had decided that nobodyshould tolerate injustice for lack ofmoney, I believe in eradication ofinjustice from the society, be it social,economic, political or religious.
More than 4 or 5 of my juniors enteredthe judiciary, 2 or 3 of them becameHigh Court judges and one of them wasthe acting Chief Justice. My way ofpractice was, I used to tell my juniors todecide which case they want to studyand argue. It was I who decided whowill argue and not the client.Fortunately, the judges were kind tome. I used to ask my juniors to arguethe case and whenever I wanted to takeover, I was allowed to do so. If I won thecase, the name of the junior waswritten as the arguing counsel and if welost the case my name was written.Therefore, practically my office was anursing centre for lawyers. They wereall my colleagues in profession.
Q. You have mentored a number ofjudges and senior advocates, whomdo you consider as your mentor?
My elder brother was one of mymentors, he had a photographic andcomputer-like memory, and he couldcite any judgment without looking intothe papers. Another mentor I wouldname is my grandfather who was aDistrict Judge. He was warned bysomebody that due to my father'sparticipation in freedom struggle, hemay not get promotion or may lose hisjob. But he strongly believed that myfather is not doing anything wrong andhe would join him if expelled fromjudgeship. However, when I became ajudge, my father was not very happy,that he wrote in his diary. But he toldme, whatever you do, be impartial butnot impassive. That sentence gave mestrength.
Q. Was there an instance when youfelt that the law, althoughConstitutional, was difficult touphold?
No, in fact, it was the other way round.In one of the case, a sweeper's son was astudent in Medical College. Rule wasthat you must clear a 5 years course inspecific number of attempts and in thelast attempt, in one subject he failed byonly 2 marks. He filed a writ petition,which was in a way, a mercy petition,because as per law, there was nothingthat could be done. I interpreted thewhole thing on a social aspect and in allfairness, to maintain the Constitutionalprinciple of equal opportunity, I asked the dean to give him one chance. That Order was challenged in the SupremeCourt, but as the luck would have it, inthe meanwhile, the boy passed theexamination. I thought that the handsof law are long enough, if you have thedesire to do justice. My agony was thatin the most advanced State ofMaharashtra, associated with greatpersonalities like Mahatma Gandhi,BabasahebAmbedkar and MahatmaPhule, till then there was not a singledoctor from sweeper community. When the boy had passed MBBS exam,literally more than 90% of it and just afraction remaining, not allowing himanother chance would have meant notonly forcing him out of the professionbut also doing injustice to the sweeper community, which is the most downtrodden strata of the society and nevergot any opportunity in life.
Then again, during emergency, Article21 was suspended. I noticed that therewere detentions which were unnecessary and biased. I told them, Iwould not accept judicial impotency.You see, right to life is a natural right,it's a human right. It is recognised bythe Constitution, but that doesn'tmean that the Constitution alone has conferred it. That is how I interpretedit and I also interpreted that the rule oflaw cannot be suspended and releaseddetainee from detention. It's a differentstory that the Supreme Court didn'tuphold our decision. There was a riskthat I would be transferred somewhereelse but being a part of NationalMovement, I have come to love everyinch of this country.
Q. You are a well-known Gandhian.Gandhiji in his early days of practicerefused to lie in court for a client, have you ever faced such a situation,what was your reaction?
Unless a client tells you the wholetruth, you can't decide what line ofaction to take. You are a lawyer, not ajudge. If I found that the client wasindeed wrong and deliberately and telling lies, I would return the brief, because money was noconsideration for me.
I had an advantage of living withGandhi for 10 years, he knew me byname. Not only that, he had put hishand on my shoulder while walking. Aman whose shoulder was trusted byGandhi himself, how could it everbend, was the question before me.
Q. Your views on adversarial systemof justice delivery?
Adversary judiciary is not suitable forIndia. The procedure, thinking,language and even the dress are notswadeshi. Adversary judiciary dependson evidence, oral or documentary.When I became a judge, I went to Acharya Vinoba Bhave to seek hisblessings, he remarked “Judges end upin Hell!” When I asked him why? Hesaid, “In a nation where there is nowitness or a document which arewholly truthful, you can only decide acase but doing justice is next toimpossible.” I had an opportunity toappear in Election Petitions of personswho have reached the highest post inthis country, I have dealt with a case ofShankaracharya also. When peoplecome to the Court, they swear in thename of God of speaking the wholetruth. But in my whole career, I have not seen a witness who has told the whole truth. We all have witnessed thatin America, even the person holdingthe highest post admits his guilt.
Mahatma Gandhi said that in Britishjudicial system, it is the longest pursewhich wins, it's an expensive luxury.Unfortunately, it has remained so.Gandhi also wanted a dispute freesociety, which will be free fromlitigation because in the presentsystem, a person who wins is also notsatisfied. He wanted arbitration orconciliation courts to dispense justice:pure, simple, homemade, swadeshijustice to our countrymen. But todayarbitration has become 5 star courtsand to quote a young lawyer, it is anemployment guarantee scheme forretired judges.
Today our slogan 'SatyamevJayate',remains a fiction and is not a reality.
It is incorrect to say that rape or murderor similar offences or disputes areadversary disputes or crimes, becausethey destroy peace, law and order of thewhole society, not just the victims ortheir families. Similarly, corruption,misappropriation or immoral publicconduct cannot be restricted toadversarial system.
Today, unfortunately your dignity andstatus depends upon your capability ofbreaking laws with impunity. Fear ofpunishment rather than respect for lawis becoming the foundation of our socalled'rule of law.' We cannot forgetthat fear is a darkroom where onlynegatives are developed.
Q. How much of politicalinterference is there in HighCourt/Supreme Court?
I had been a judge for 17 years and Ididn't find any political interference.Judiciary is not meant for an ambitiousman. An ambitious man believes incompromise and one who believes incompromises, suffers from interference. Not only political, even ofthe mob and media. There are judgeswho are more interested in publicity,which is also corruption because itaffects their judicial verdict. Today,some High Courts are being run by theChief Ministers of the State rather thanthe Chief Justice. We are asking toomany concessions and a post afterretirement, therefore there's a quid proquo. It has been well said by eminentjurist FaliNariman, “Judiciary issuffering from three C's: Caste, Costand Corruption.”
Q. Your views on judiciary versus legislature?
Both the fields are complimentary toeach other. The field of legislature is tomake laws and the field of judiciary isto do justice. Today, the legislature isnot doing its duty, therefore judiciaryhas to take steps. Some people criticize the judiciary for over stepping andinterfering. But if the legislature andadministration fail in their duty, shouldjudiciary be only a bystander?
Constitution tells us that judiciary hasthe power to scrutinise laws & actionsof the other organs and to do justice.We believe in rule of law and not therule of men. However, every politicalparty wants an independent judiciarywhich will have completeindependence to decide a case in itsfavour only and the people want ajudicial verdict in their favour and notjustice. This is the agony.
Q. Your views on use of a foreignlanguage in our judicial system?
If there is no Indian or regionallanguage, then the judiciary is notmeant for a common man. RamManoharLohiya whose case was in theSupreme Court, wasn't allowed to arguein Hindi. Have you seen any country inthe world which refuses to hear aperson who wants to argue in his ownlanguage? I call it attitude of slavery -Englishmen left but Angreziyat (Colonialism) is still here. If someonetells me that he does not understand Hindi, then I find it shameful. Peoplecan easily understand Hindi movies. They can understand movies, butpretend that they are unable to understand Hindi! If this does not change, a poor man or a common mancannot get justice because the whole judicial system is carried out in a foreign language.
Today, loknyayalay or gram nyayalayare not participatory dispute resolutioninstitutions but are more cosmetic thanreality. Much more is required to bedone if we want a participatory judicialsystem. We have a decision makingjudiciary, which is not necessarilyjustice delivery system. This wholesystem requires a radical change so asto become swadeshi or Indian judiciary.I don't know whether it will be possiblein my lifetime, but my desire is that mygrandchildren should at least get aswadeshi participatory judicial system.
Q. Is it correct to say that a personcan go scot-free by engaging thebest advocate?
To some extent it is true. But thisdepends upon the Judge. A Judge musthave an X-ray eyes to find the truth.
Q. Do you think judges have become more accountable because ofmedia's role?
I don't think so, media is playing itsrole beyond permissible limits. Today,media is conducting the whole trial.And due to that, there is a pressure onthe judge. Then there are judges whodeliver judgments for publicity. All theinformation about cases which arerequired to be conducted in camera,are being told to the media by thepublic prosecutor. That comes in openwhich is not good. This is not the workor system of media reporting. They arereporting about the filing of cases,though the cases are not decided andstill pending for decision. Day to dayreporting, as if it is a cinema or a serialgoing on a TV. In reporting, emphasisis on the names of advocates & judgesand not the cause. If the media doesn'tlike it, it won't come to the public. Andwhen the media writes too much,people think that there is no justice.
However, useing the phraseology of great Churchill, even today judiciary,“is the least worst institution andpeople still have hope from it.” It is our sacred duty to preserve that faith in judiciary otherwise the whole democratic system would fail.
Author Name: Gururoop Sabharwal
