After a career as a judge spanning nearly two decades, Justice Hrishikesh Roy of the Supreme Court demitted office on January 31..In this interview with Bar & Bench's Debayan Roy, Justice Roy speaks on how his wife played a role in his accepting judgeship, how the system is not adequate to deal with errant judges, how he would have decided certain cases differently, and more..[Watch the video interview here].Debayan Roy [DR]: Your career trajectory spanned from the Eastern-most part of the country, to the South and then in the North. How was your experience in each of these places?.Justice Hrishikesh Roy: A bit of a correction there in your introduction - it started and ended in Delhi, where I commenced my practice in 1982. A family tragedy (my father passing away) needed me to go home to Gauhati and be with my mom and siblings. The journey has been about 19 years (as a judge) and I really feel fulfilled as a person for my career both at the Bar and the Bench, to take the two words of your organisation. I started in the Supreme Court, where my opening opportunity to speak was before the then Chief Justice of India, YV Chandrachud.On the Bench, I have certainly completed the full circle. But for a person on the journey of law, I do not think it ever ends, and my journey may continue, though not in any official capacity..DR: It is often said that for a lawyer, securing a good chamber seals the deal in the initial phase of the legal profession. How did it happen with you?.Justice Roy: I relocated to Guwahati after my father's death. I decided then that I must work in the best lawyer's chamber. One could identify four to five good lawyers, and starting from 10:30, I would follow one lawyer from court to court, and the next day, another lawyer. I recced all the lawyers like this. I joined the chambers of JP Bhattacharjee, a doyen of the Gauhati Bar. He was a lawyer of immense knowledge and courtcraft. He was a match for any of the top lawyers in the country. His chamber has generated four Supreme Court judges (Justices Mukundakam Sharma, Amitava Roy, Ranjan Gogoi and myself). I remember gifting him a plaque on his birthday which read "The buck stops here," because all litigation would go to him. Others would call lawyers from his chamber as lawyers from the 'JP gharana'. The (late) Nilay Dutta, a very eminent lawyer, gave that name..DR: You along with three other classmates of yours at Campus Law Centre have been Supreme Court judges. How was it working with them? Did you ever envision that all of you would serve at the apex court someday?.Justice Roy: For me, not at all. One person whom we all thought would become a judge is my good friend, Ravindra Bhat. He was a very serious student; when we were engaged in leisurely activities, you would find him often seated in the library poring through notes and books and so he had all the symptoms of becoming a judge.Dhananjay Chandrachud, of course, his father was a judge, so he thought he would opt for it. Sanjay Kaul we knew he would become a lawyer, but not a judge, because he was also interested in things like theatre, like I was.But law certainly was a career option that I had chosen even as a child..DR: How did judgeship happen?.Justice Roy: Judgeship happened in 2006, when Justice B Sudarshan Reddy was Gauhati High Court Chief Justice. I was designated a senior counsel two years earlier, and once you get designated, the profile of the cases you deal with changes; it becomes more challenging. In the High Court, I had occasion to be on the opposite side of stalwarts like Ashok Sen and Soli Sorabjee. Once with Sorabjee, after the Court ended hearing arguments, the Chief Justice wanted to offer him a cup of tea. I came to know years later that Justice Reddy was told by Soli Sorabjee that his opponent in the case should be considered for judgeship.Then apparently CJ Reddy said that my name is already shortlisted. Soon after, the Chief called me for tea and broached the topic of inviting me to the Bench, and immediately I said no. There were several reasons - one I was arguing several interesting matters, the money was also coming in. At that point of time, I was heading the Guwahati Music Society, which was doing interesting concerts. Those were the interesting times I was living in, and coming to the Bench would mean depriving myself of all this. But CJ Reddy kept offering me tea every few days. Once, he even called my wife, and again I said 'no'. And then after some more days, I said 'yes'. Years after I became a judge, I met Justice Reddy in Hyderabad. When I was about to leave, he said, 'Hrishikesh, tell your wife I have freed her of the oath I made her take'.I was puzzled. He reminded me of the time my wife and I went to his chamber and told me although I was resisting it, my wife was inclined to my becoming a judge. He had sworn my wife to secrecy and chalked out a plan with her to make me say yes to judgeship! So the Chief would offer me tea - I would say no to judgeship - I would go home and my wife Chandana would offer me tea and say 'its not a bad idea to become a judge'. How long could I resist the pressure of the Chief Justice in court and my wife at home?But having said yes, I later realised that it was a good call..DR: Once, when a lawyer appearing before you in the Supreme Court pointed out that you had passed a similar order as High Court judge, you said that you have become wiser since then. How does a judge become wiser as he goes from High Court to Supreme Court?.Justice Roy: That is an interesting question, I must say. You don't become wiser in the literal sense. The input and assistance that I got from the lawyers in the High Court may not have been adequate for me to reach the right conclusion at that time. So unknowingly, I may not have given the correct verdict in that particular case. But when the facts and the law are presented in the manner they should be, I knew that I could not decide the same way as in Gauhati. What is wrong in saying I have become wiser? Everyday you learn something new, and your experience does not remain static. Law is evolving all the time and that's why interpretations change..DR: You were part of a Bench that allowed the practice of Jallikattu and other animal-driven events in various states. What deliberations went into balancing animal rights with cultural rights?.Justice Roy: In a case like this, there are sentimental aspects. Sentiments cannot be judged by pure law. We have situations of people talking about AI in judging. The element of empathy and human touch can never be brought by AI. So in cases where we have situations of aspirations, festivities, social norms, past practice, if you judge it by standards of pure law, you may not reach a right or just verdict. You have to balance the sentiments of both sides, and how tradition is so sentimentally close to the people of that area. The danger of getting injured is not unknown, yet people are willing to do it.DR: Do you think sentiments in some cases outweigh constitutional rights?Justice Roy: Constitutional rights are the most supreme, there is no doubt about it and that judgment respected those rights and was delivered within those parameters. Giving a judgment purely on sentiment would have been a wrong approach..DR: Is there any decision of the Supreme Court that you weren't a part of, but would decide differently?.Justice Roy: There could be very many cases of that kind. The gender issue in the Sabarimala judgment - I felt that what Justice Indu Malhotra decided was the correct view. Having been Chief Justice in Kerala, I could understand the sentiments associated with the centuries-long rituals. Therefore, to go by pure law and disregarding the faith and the belief of the people to give weightage to pure law (may have been wrong).Sometimes, judgments of others are actually tested before you. In NN Global (arbitration stamping), I authored the dissenting judgment. And lo and behold, the five judge bench's majority verdict was overturned in a few months. The seven-judge bench affirmed my view. I consider that very satisfying that I took a different view, which sometimes takes years and decades to be accepted, but here it was done within 6-7 months..DR: You were part of the Collegium that interacted with Justice Shekhar Yadav after his controversial comments. Do you think he was adequately censured? How do we prevent such instances in the future?.Justice Roy: I cannot be commenting on individual cases. Judges of superior courts are protected by so many safeguards so they can render judgments free of fear or favour and that is a fundamental thing - to ensure so that judges act true to their oath and the Constitution. Now the very same protection by law acts as a deterrent for taking action against someone seen as going astray. The only way is the impeachment process, which you and I know is very ineffective. The other process is of in-house inquiry, that is underway here. Taking away judicial work is another option...The present law does not have an effective answer to deal with this kind of situation.In this case (of Justice Yadav), the apology has not come, although the assurance was given that it would be tendered. So, the CJI has started the in-house inquiry. DR: Did the judge express regret or did he justify his statements?Justice Roy: In private, he said he was ready to apologise to all 5 of us (Collegium judges). But he was told that the apology in a closed room would not do, that he must do it in a public forum. He agreed to do so, but eventually it did not happen. On the inefficiency of the impeachment process, I am speaking from my experiences. That same protective mechanism protects judges from easily being ousted or cast aside..In this case (of Justice Yadav), the apology has not come, although the assurance was given that it would be tendered. So, the CJI has started the in-house inquiry. Justice Hrishikesh Roy .DR: During the tenure of CJI Chandrachud, resolutions of the Collegium were published along with reasons. But after Justice Khanna took over as CJI, this practice has been stopped. What is the reason behind this?.Justice Roy: Every CJI tries to work the system which in his understanding is the best way to function. CJI Khanna has started the process of recommended judges being interviewed by Collegium members, which was not there earlier. It is always an evolving process. When you give the reasons, it has its own utility. The reasons are that the recommended judge was meritorious, to give more representation (to a region or community) - that is anyway discernible. There is not much logic or analysis to be done. DR: I think the point is transparency in appointments...Justice Roy: You are right in saying that part of the Collegium process is opaque and not transparent. But at the same time, when you are looking for 4 judges, you then choose from a pool of 10 and shortlist 4. Now why you have not appointed six - there is a reason. Those six may be equally qualified for judgeship, but as soon as you disclose the reasons, their careers will be affected. There will be prejudice against them and nobody will give their consent for judgeship. As it is, we are struggling to persuade good lawyers to come to the Bench..DR: Is it necessary that every Constitution Bench should be headed by the CJI as we saw during the two-year tenure of CJI Chandrachud? Should other judges also be given the opportunity?.Justice Roy: You see, each CJI will have a different take on it. CJI UU Lalit had constituted benches headed by different judges. But you cannot also forget that as part of CJI Chandrachud's benches, he entrusted the responsibility of authoring the judgments to other judges on the bench. And some of us delivered dissenting judgments not agreeing with the CJI. To head the bench is the decision of the CJI as master of the roster. But by heading the bench, I don't think he has done any disfavour or disservice..By taking out Constitution Bench matters from the backburner, I think Justice Lalit did a wonderful job. CJI Chandrachud carried that forward and decided those matters. The CJI is constantly struggling to balance the need to hear Constitution Bench matters which take up a lot of time and to hear the daily cases that keep coming in.CJI Lalit achieved a degree of success, but mind you he had a very unique position. He was elevated to the Supreme Court after being both a Senior Advocate and an Advocate-on-Record here. This combination in one Chief is not available in any other judge..CJI Lalit was elevated to the Supreme Court after being both a Senior Advocate and an Advocate-on-Record here. This combination in one Chief is not available in any other judge.Justice Hrishikesh Roy .DR: There is a perception that the Supreme Court has, in the last 10 years, by and large sided with the executive when it comes to matters of constitutional and political importance? How would you answer this criticism?.Justice Roy: With so much media attention on the Supreme Court, people have already decided what the outcome of cases should be. Eventually, the judge has to decide based on what is presented before them, what is the law etc, before taking a position. I don't think such criticism is fair, because it is not always in favour of the executive. The perception, understanding or assessment of a judge, what justice is demanding in a given case - would largely determine what the final conclusion would be..DR: What is your take on the delays in judicial appointments that are resulting in several High Court posts remaining vacant? .Justice Roy: This is a problem which every Chief Justice is confronted with. Whenever there are opportunities for the CJI to interact with the executive at any level, I am sure this is discussed. For instance, from the Gauhati High Court, there are two recommendations pending - a lawyer practicing in the High Court and a tribal Naga lady judicial officer. These two are not being cleared for a considerable amount of time. I have spoken about this with the CJI and he has said they are trying to follow it up. So yes, they do sit on names, but you cannot put a sledgehammer...DR: Is issuing a writ of mandamus to the government not a way out of this situation?Justice Roy: Mandamus is the ultimate weapon that the judiciary might wield. But if you recollect, Justice Kaul was heading a bench that was monitoring the delays in appointments. There was a bit of back and forth with the Attorney General. The law officer would obtain instructions and come back with an update...that dialogue was not in a back room, but in open court. This dialogue gives confidence to the observers of the court process that there is a bit of an effort being made by the Court and there is a response from the government.But to issue a mandamus or warrant, I would say is the last resort. Sometimes, there may be good reasons for the government, though I am not always privy to specific cases..DR: Some Supreme Court judges are known to be very tech-savvy, and some not so much. Some allow hybrid hearings across days of the week while some do not. What is your take?.Justice Roy: There are two ways of looking at it. I have seen that for young lawyers and women lawyers, the option to appear in virtual mode has levelled the playing field to a large extent. Women are equally capable of performing in the intellectual exercise of law. The only thing that stops them from performing as well as men may be distance, commute etc. So I feel it is a very important thing which COVID-19 expedited and it must be continued. But for very serious constitutional cases, if the lawyers are arguing from a distance, the effect is a little less. I would suggest that for complex legal and constitutional cases, for a lawyer not to be present physically in court, is not a good idea. They are able to communicate and argue better when in court..DR: Will you be accepting post-retirement sinecures? What is your take on them?.Justice Roy: An offer was made to me by the previous CJI (Chandrachud), which I politely declined. In recent days, from the government side, somebody reached out to me making a specific offer, I declined. Then an officer of the Ministry was sent later, again I declined. My take is that I don't want to accept any government official assignment, which are prestigious no doubt. But I would like to be a private, ordinary individual now after 19 years as a judge.DR: In arbitration?Justice Roy: Arbitration yes, that is an option. As you know, Delhi is a very expensive city to live in, and on a government pension, it can get difficult to rent a house!DR: Can you disclose what posts were offered to you?Justice Roy: That would not be proper for me to say. You can imagine what the posts (offered) would have been, going by the vacant posts during CJI Chandrachud's time (smiles). He did not mention any specific position..Delhi is a very expensive city to live in, and on a government pension, it can get difficult to rent a house!Justice Hrishikesh Roy .DR: How do we redress the low representation of women on the Bench?.Justice Roy: I was Chief Justice in Kerala and we had nine lady judges. The same was with Guwahati and Delhi. The only way is for women lawyers to mark their presence in courts where the matters are conducted by the Chief Justice. The disadvantage is that very often you will find that women lawyers are engaged in family law matters. But family law cases never come to the Court of High Court Chief Justice. So, the lawyers must come out of their comfort zone and accept matters which are argued before the Chief Justice's court..DR: You've said that arbitration in India is like an overloaded truck struggling up the hill. Are the courts and the government doing enough to make India a potential hub for international arbitration?.Justice Roy: The government gives a lot of signals on making India a arbitration hub. But at the same time, it is issuing notifications that PSU disputes under a certain value will not be arbitrated. You are trying to attract investment. Anyone putting in money would want early resolution of any dispute in an acceptable fashion. Arbitration, universally, has become a mode of dispute resolution in a quick and efficient manner by engaging experts and not being dependent on court processes. If you have a system in place where you can deliver results in a more effective and efficient way, certainly arbitration should be the answer. Why should the court docket be filled with hardcore commercial matters? Why should cases of litigants languishing in jail for a long time not get priority over them? Liberty-oriented matters should get priority in courts, and commercial matters should be dealt with through arbitration, through people who are experts in the process.
