A JUDGE WHO WAS BORN TO BE A JUDGE

Merit of Leak – Collegium should not have ignored Hon’ble Justice Prakash Shrivastava, Chief Justice of Calcutta High Court.

Hon’ble Justice Prakash Shrivastava retires this month, as the Chief Justice of Calcutta High Court, the poem ‘Censure’ by Taylor Swift runs down my mind when I pen this to words:

“You wise instruct me to endure,

A folly that admits not cure

Oh! How can this folly be borne

Which inspires both hate and scorn

Mere innocence is no defence, when you are tried in scandalous court”

History says it all! Wise men have never reached stars, which belong to them.

Those who have managed to toil the corridors of Madhya Pradesh High Court, bench at Indore will not disagree with me. There are very few legends in Madhya Pradesh Judiciary who have left imprint on minds of young lawyers, Hon’ble Justice Prakash Shrivastava is one such Judge who was born to be a Judge and out number many of his time.

As Young Kindled Lawyer

In 2010, as a young kindled lawyer with just borrowed brief in my hand, I appeared before the Division Bench of which Justice Shrivastava was puisne. With my shrilling youth and restless arguments with no ends to meet, I gave an impression of an over enthusiast trying hard to press my point across the board.

Judges were not impressed, and for sure expressionless, urging me to develop further. I bounced to make a mistake by saying :

Me lords, “The Single Judge out of his ‘whims and fancy’ has erred in appreciating the law and facts of the case to which I have been put to great disadvantage”

Thinking I have read Macbeth better than the bench, and to see the other judge enjoying my eloquence, I forced further for a minute. But, there was a sudden interjection from the bench, Justice Shrivastava, asked me what do you mean by “Whims and Fancy” ?

And as it is said in the corridors of court, I was “hunted down to bow”. This was the first lesson for me by a great Judge, whom we look up to as ‘Judge born to be a Judge’

There are innumerable examples in history and I am reminded of Former Chief Justice Bhawani Singh, upon being questioned for his choice of one Judge recommended for elevation, he said:

“A good human being always becomes a good Judge”

Merit and Integrity is not quantifiable, it is variable term, as, ‘Vague as open sky and limited as oceans’,

This I can say by my personal experience working as a Judge for 11 years in no less than a Military Court.

The Collegium- Where do they Miss

Firstly, every lawyer who enters the profession wants to become a Judge, the very first day he is enrolled. The disadvantage is that the profession does not grow only personal aspiration over take the “ Right to do and Right to Say”… In simple words, lawyers often abstain from saying what is ‘Right thing at the Right time’, thinking that it may impact their career progression or bleak chances of elevation.

The bench and bar coordination is less in terms of promoting potential Merit. This results in mass exodus of talent in formative years of practice. Law firms and government jobs are great attraction and ensure stability to middle class minds.

As a result, the profession is left to the mercy of ‘Sons and Sons’ or ‘Associates of Associates’ to run the show.

I recall one Senior Advocate giving sermon to me in corridor of High Court of Kerala, years ago when I was posted at Kochi.

He said with no timidity that, “If my client pays me two lakhs for a bail application, He means that, he should be out on bail by hook or by crook.

The pockets are full not for speaking the law but, for making the way through it, no one is interested in becoming Privy Council these days, He said” unquote

Conclusion

Collegium has its own demerits, as it filters only selective inputs and ignores the potential of the individual. Recommendations, opinions from hand to mouth sources are unfruitful. Moreover, the redundant Intelligence Bureau of India, which is best not reliable. This I can surely say based on my Military experience, as to how much field reports are exaggerated and unquantified.

There is also resistance on political recommendations vis the merit of appointee. Can really executive interference be avoided? or its just media standoff??

What is needed? more involvement or switch over to merit cum selection, based open competitive examination.

No one has ever questioned the potential of an IAS, IPS or IFS after her appointment through Union Public Service Commission. UPSC has remained the only constitutional institution with proved integrity and fairness in selection process.

Why not select candidates through open Merit cum Section process, and the interview can be taken by collegium ?

About the Author

Lieutenant Commander Varun Kulshrestha (Retd)

Former Area Judge Advocate General of Indian Navy