Sanjay Raman Sinha: How was your career in the judiciary? You retired as a Supreme Court judge and in your long illustrious judicial career, you were also Chief Justice of the Kerala High Court. How do you encapsulate your experience? Is there something you would like to do given a chance to relive it?
Justice Hrishikesh Roy: This is a moment of introspection of the long journey of 19 years as a judge—first in the High Court of Gauhati, then as the Chief Justice of the Kerala High Court, and then finally as a judge of the Supreme Court. I studied at Delhi University, Campus Law Centre. Though no one in my family is from a legal background or is a lawyer, yet I don’t know why I wanted to be a lawyer from a very young age. I got enrolled in the law college. I got my license to practice in 1982 from the Delhi Bar Council. Becoming a judge was not my dream, but when a judge of that time, Chief of the Gauhati High Court, B.S. Sudarshan Reddy, invited me to become a judge, I avoided it at that time, and for some time, I kept denying him. But in the end, I acquiesced and became a judge in the Gauhati High Court in 2006. That 19-year journey has recently ended, just a week before when I retired from the Supreme Court.
SRS: The Supreme Court has agreed to hear a batch of petitions challenging The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 which hinges on exclusion of the Chief Justice of India (CJI) from the selection panel. You were part of the bench which gave the ruling on the Chief Election Commissioner appointment process. Do you think the exclusion of the CJI and inclusion of a cabinet minister will affect the neutrality of the process? The Act has not only replaced the Chief Justice with a Cabinet Minister, it has for all purposes given the control of selection process in the hands of the government. Questions are now being raised that the appointment process will be derailed. Is the government upstaging the Election Commission? How do you look at it?
JHR: See, when we talk about the Election Commission, T.N. Seshan cannot be forgotten. He has given a different outlook to the Election Commission. As I understand by law, the role of the Election Commission from 1950, starting from the first Election Commissioner, has been very glorious. The Election Commission has discharged its responsibility by establishing India as a very strong democratic country in the world, where elections have traditionally been recognized as free and fair. In fact, observers from India are taken to other countries during election processes to give credibility to the election process in those countries.
The decision you are talking about—I was part of the bench. The judgment, if I recollect, was authored by my distinguished brother Justice K.M. Joseph. At that time, the Election Commissioner post was vacant, and a new Election Commissioner was being appointed. So, the court asked the government for data on how the procedure is being followed for the appointment of the new Election Commissioner. When told about the procedure of appointment, the court at that time thought that it could be possible the government would choose one of their own for the Election Commissioner, and that the Election Commission would incline towards the government.
So, from our side, looking at that gap, the court decided that the committee that would sit would include the Chief Justice of India as a part of it, and this process would remain intact until the government made a law on it. After that, the law came, and in the law, the Chief Justice was removed from that panel. Whether this law is correct or constitutionally valid or not—this matter is still before the Supreme Court, and I won’t be commenting on it.
SRS: You have been a part of the Collegium as well, and the Collegiums’ working is shrouded in secrecy. What happens inside nobody knows. Are there groups and lobbies in Collegium? Are there fights and serious differences of opinion? What is the insider’s view?
JHR: See I was a part of the Collegium when I was posted as a Senior Judge in the Gauhati High Court, I was also the head of the Collegium in the Kerala High Court and was a member of the Supreme Court Collegiums as well.
This shrouded in secrecy talk is true to some extent. Suppose we are considering five vacancies and for those five vacancies, we are not just referring to only five male or female practising lawyers. Instead we are referring to a larger group of potential candidates who are in the fray. If considering all, the Collegium recommends a certain five candidates and rejects the rest and if there name is made public then their capability will be questioned by people at large, and may affect their standing and career as a lawyer. Which is why to some extent the argument or criticism for opacity is valid.
Moreover, since I was the Chief Justice in Kerala, an experiment of mine in Kerala proved to be really good because I took advice from all the judges of the Kerala High Court. After taking advice, I got the matter of all those lawyers listed in the court of the Chief Justice and after that I took the decision myself; and the point of satisfaction for me is that there was no scope for nepotism at all.
SRS: You have authored the majority judgment in Municipal Corporation of Bombay v Ankita Sinha (2021) where a three-judge Division Bench unanimously upheld the suo motu powers of the National Green Tribunal (NGT). But there are issues. The High Courts can well go into NGT jurisdiction, there is lack of technical and judicial members. At a time when many of its orders are being turned down by the apex court, how do you see a more powerful role for the green tribunal? You quoted Waiting for Godot, how long do you see the wait?
JHR: I’d like to say that you have raised a very interesting question. The National Green Tribunal is the environment watch dog in the country. Now, if the watchdog waits for the petitioner to raise the issue and then to start the proceedings, then it will be Waiting for Godot, as I mentioned in the judgment. Hence, the case for suo motu powers.
The problem we faced was whether we should initiate proceedings ourselves if there’s a petition or environmental issue that requires attention. I illustrated this dilemma using the example of Waiting for Godot, where one waits for Godot, unsure if he’ll arrive. Similarly, if the National Green Tribunal notices a potential environmental issue within its jurisdiction, it can register a case and proceed accordingly. This power was granted to the NGT by the Supreme Court, specifically through a three-judge bench judgment. In my opinion, this judgment strengthened the NGT’s position, particularly in cases involving environmental issues where powerful developers with strong lobbies and significant financial resources often suppress protests. By granting the NGT suo motu power, the Supreme Court enabled the tribunal to take up cases without waiting for petitions. Interestingly, Waiting for Godot is a celebrated drama that has inspired many adaptations.
SRS: In 2018, the Supreme Court recognised the right to die with dignity as a fundamental right and prescribed guidelines for terminally ill patients to enforce the right. You were part of the bench. Now Karnataka is all set to implement the ‘right to die with dignity’ order of Supreme Court. What are your feelings? Should India consider legalizing euthanasia? What are its pitfalls?
JHR: I was an integral part of the bench that deliberated on a critical issue: whether to prolong the life of terminally ill patients using artificial support, and for how long. A key concern was the patient’s potential lack of interest in prolonging their life, but being unable to express their wishes due to unconsciousness. This issue was highlighted in the case of Nurse Aruna Shanbaug, who was brutally raped by a hospital staff member, strangulated, and left in a permanent vegetative state. As a beloved member of the hospital community, the question arose whether her life should be prolonged artificially or if she had the right to pass away. Such dilemmas often arise in cases involving terminally ill patients. In our decision, we ruled that a committee comprising medical professionals, family members, and caregivers should be established to make such decisions, as family members may not have the legal authority or be able to make decisions on behalf of their loved ones in a vegetative state.
SRS: The Supreme Court of India has adopted the use of Artificial Intelligence (AI) in translation of judicial documents as well as in legal research and process automation etc. How do you see its use in the future? Will judgements be given by AI? Can AI increase court efficiency and reduce backlog? Do you forsee a situation where AI will replace judges?
JHR: There is an ongoing debate about the strengths of AI. In the Supreme Court, judges utilize AI to generate transcripts, particularly in constitutional bench cases that span multiple days. When rendering decisions, we must outline the arguments presented by each advocate and the counter arguments offered by opposing counsel. During proceedings, we also take notes in bullet points, which we periodically review to refresh our memory. This is an example of how AI is employed in the Supreme Court and other courts to automate the documentation of arguments.
Regarding the question of whether AI will replace judges, I think it’s unlikely. A judge’s role involves not only interpreting the law and making decisions but also exercising empathy and sympathy to determine which party has been treated justly or unjustly. If decision-making were to be entrusted solely to AI, judgments would be based solely on a balanced analysis of the law. However, AI lacks the capacity to perceive and address injustices, which requires a deeper understanding and nuanced evaluation that only humans can provide. Therefore, I do not believe that AI can replace human intelligence.
SRS: How do you see the intersection of AI and Intellectual Property Rights (IPR) laws? Do IPR laws needs an overhaul in view of the encroachment of domain knowledge by AI in many areas? Recently, such concerns have been raised with the advent of Chinese AI startup DeepSeek as well.
JHR: As we progress in law and artificial intelligence, it is evident that development is ongoing, with advancements being made in various directions. However, the law often struggles to keep pace. To address this, the government continually endeavours to amend and improve laws. In some cases, we lack appropriate laws to tackle specific issues, prompting the enactment of new rules and laws. This topic reminds me of a conference I attended, where Justice Prathiba Singh, a renowned judge in the Delhi High Court and an IPR expert, headed a committee in collaboration with the government. The committee suggested amendments, which were subsequently incorporated into law. Similar progress has been made in international arbitration law. Initially, the laws governing arbitration seemed adequate, but as instances arose, amendments were made to strengthen the law. The government, along with stakeholders and experts in the field, continually monitors and improves these laws. For instance, a committee on arbitration, comprising experts, made recommendations to the government, which were then implemented. This process of refinement will continue, not only in IPR but also in other areas of law.
SRS: You have always championed the cause of Alternative Dispute-Resolution (ADR) mechanisms like arbitration and mediation, and a hands-off approach of courts in this matter. Now, that a new arbitration bill is in the offing, how do you see the emerging picture in ADR? What are the more serious bottlenecks which should be removed? Can ADR reduce pendency? Do we have enough trained workforce? Are the litigants ready?
JHR: Regarding arbitration, we are all aware of the substantial caseload in our courts. Certain matters, such as criminal cases involving convictions or acquittals, require the court’s decision on sentencing, which can range from 10 years or more. These decisions can only be made by a judge sitting in court. However, commercial disputes can be resolved through ADR mechanisms. As India seeks to attract foreign investment, it is essential that we demonstrate efficient dispute resolution processes. If potential investors perceive that resolving disputes in India takes an inordinate amount of time, they will be deterred from investing here and instead opt for countries with more expedient decision-making processes. The ease of doing business is crucial for business growth, and arbitration plays a vital role in this regard. I was part of a landmark decision in the case of NM Global, which was heard by a five-judge bench. We held that where arbitration is an agreement or a clause in an agreement, the requirement of adequate stamping can be fulfilled later by imposing a penalty, and that inadequacy of stamps should not delay arbitration proceedings.
The Bombay High Court, Karnataka High Court, Madras High Court, and Kolkata High Court are premier high courts that handle a large number of commercial matters. These courts also emphasize the importance of resolving disputes through arbitration, wherever possible, to avoid clogging court dockets with commercial matters that can be expediently resolved through alternative processes. By adopting this approach, we can project a positive image of our country’s adjudication process, showcasing its efficiency and effectiveness in resolving disputes.
SRS: Recently more than 100 Indian immigrants were sent back by the United States handcuffed resulting in a huge political uproar. External Affairs Minister S Jaishankar has said in the Rajya Sabha that the SOP of deportation provides for use of restraint. How do international laws and norms stand and was the US in the wrong to treat the deportees in such a manner?
JHR: I’m not familiar with the international law aspects of this issue, so I’ll refrain from commenting on that. However, there are two sides to this story. On one hand, as a citizen of India, if you enter another country illegally, you are subject to that country’s laws, which will consider you an unauthorized person. Consequently, you are required to be returned to your country of origin, India. The US is proposing similar deportations of undocumented migrants to their respective countries. I don’t think we should have any issues with the deportation itself. However, the manner in which the deportees were brought back is concerning. There were reportedly 130 individuals, including women and children, who were transported on a plane. The responsibility lies with the deporting country to ensure their safe and humane return. While the US authorities may have felt that handcuffing was necessary, I believe that as a humane society, alternative options should have been explored. As a human being, I think it’s essential to treat individuals with dignity, even if they are being deported. The need for handcuffing and allegedly restricting access to toilets seems excessive. A more compassionate approach would have been appreciated.
SRS: Uttarakhand’s Uniform Civil Code (UCC) passed by the State Assembly in February 2024 mandates the registration of live-in relationships. Providing personal details like Aadhaar cards, details of any previous marital or live-in relationships, to police and landlords is seen as constitutional violations of privacy and personal liberty. How do you see the whole issue now that many more states will adopt the Uttarakhand model of UCC?
JHR: In the Uniform Civil Code, you’ll find that various states have differing opinions. These differences aren’t based on concerns about individual privacy, but rather on the political ideologies of the ruling parties in each state. Firstly, when it comes to privacy concerns, there are well-established Supreme Court decisions that provide guidance. However, whether a particular legislation adequately protects individual privacy and aligns with constitutional provisions is a matter for the High Court or Supreme Court to decide. This legislation is already under challenge in court, so it’s up to the judiciary to render a decision. As a retired judge, I believe it’s prudent to reserve judgment, as we aren’t privy to the arguments and counterarguments that will be presented. It would be speculative for me to predict the outcome. Therefore, I think we should allow the court to decide.
SRS: In recent times we have seen that bail jurisprudence in PMLA cases have become more humanized and relaxed; but such changes are yet to come for UAPA. There are provisions which confer the Centre with discretionary powers to categorise a person as a terrorist, and these are under challenge. How do you reconcile personal freedom with national concerns and rule of law?
JHR: These cases often raise questions about individual liberty. As judges, we take an oath to uphold the Constitution and laws. However, when laws are crafted in a way that requires the court to balance legal requirements with considerations of liberty, challenges arise. In the legislations you mentioned, the legal provision states that bail should not be granted unless the court prima facie concludes that the accused is unlikely to be convicted of the offence. As judges, we are sworn to uphold the law, which is why granting bail or considering it immediately for individuals charged under these provisions was difficult. As you noted, these provisions can be seen as draconian.
The question remains: Why did the court eventually relax its stance? The logic lies in the interplay between statutory law and constitutional law. Article 21 of the Constitution, as interpreted by the Supreme Court, guarantees the right to a speedy trial as a fundamental right. When balancing a particular law with constitutional provisions, the court considered that prolonged detention without trial or framing of charges would be unjust. The court ultimately decided that bail should be granted, bearing in mind that in our country, bail is the rule and refusing bail is an exception.
SRS: Do you think that the number of judges at the Supreme Court should be increased keeping in mind the workload and pendency?
JHR: Increasing the strength of judges is often proposed as a solution, but is it really that simple? Let’s take the Allahabad High Court, for instance. With a sanctioned strength of 150 judges, only about 50% of those positions have been filled so far. This isn’t an isolated case; many courts face similar challenges in appointing judges. The main hurdle is the dearth of suitable candidates for high court and Supreme Court judge positions. Currently, about 30 -35% of high court judge positions remain vacant. This isn’t due to a lack of court strength, but rather the time-consuming appointment process and the constant flux of judges retiring or being elevated. Now, let’s consider the proposal to increase the number of judges. Even if we assume that the vacant positions are filled, simply increasing the number of judges won’t necessarily solve the problem. In a court with 50 judges, for instance, you’ll have varying levels of efficiency and competence. Suppose 20 judges are highly efficient, 20 are good but not exceptional, and 5-10% are underperforming. If increasing the number of judges only adds to the pool of underperforming judges, then it won’t help alleviate the pendency issue.
Another factor to consider is the reluctance of successful lawyers to take up judgeships. With the increasing financial rewards of a successful law practice, many top lawyers are hesitant to leave their lucrative careers to become judges. This means that only less capable or second-choice candidates might be willing to take on the role, which wouldn’t improve the overall quality of the judiciary. The ultimate goal should be to appoint the best possible candidates as judges. If we can achieve that, even with the current strength, we’ll see better results than if we simply increase the number of judges without ensuring their quality.
SRS: Nowadays, judges are seen giving controversial statements, which is bringing disrepute not only to the judge but also to the judiciary. What is the main source of the problem: Is it lack of proper judicial training or does the malaise spring from political ideology and worldview?
JHR: Regarding political affiliations or ideology, it’s an unavoidable question. For instance, Justice Krishna, a former minister in a communist government, was appointed a judge due to his political influence, despite lacking judicial qualities. Some judges make inappropriate comments, unbecoming of their position. However, it’s essential to remember that among thousands of high court and Supreme Court judges, most conform to the norms of being a judge. We shouldn’t judge the system based on the misconduct of a few individual judges. The appointment process and scrutiny are in place to ensure that 99% of appointees are good people, although sometimes exceptions occur. The system is largely alright, and I don’t think there’s cause for concern. Just as a single bad flower can overpower the fragrance of others in a bouquet, individual misbehaviour can mar the system. Nevertheless, no system can be 100% flawless.
SRS: Prior to joining the judiciary, you worked as a legal correspondent for the Press Trust of India. How do you see the current spate of legal reporting? Is it responsible enough? Is media trial troubling the judges? In the current scenario, what points should be taken care of by reporters to maintain the sanctity of judicial proceedings?
JHR: That has refreshed some old memories of my life. I was an accidental journalist, not a professional one, and I used to report for a very old English newspaper in Assam. I also worked with Doordarshan, but I didn’t receive a fixed salary; instead, I would receive a cheque every six months, which brought me great joy at the time. I want to highlight two things: back then, law reporting was primarily done by the print media. When we reported on legal news, television didn’t have much of a presence in India. It was all about print media, so we would read newspapers and knew that what was published in them was actual news, not opinion. However, what I observe today, whether in print media, visual media, or social media, is that the subject matter is often hidden in the background, while opinions are excessively highlighted. I wouldn’t say this about all media, but in general, opinion-based reporting seems to have become more prevalent.
SRS: How much influence does social media have on the judiciary? Former Chief Justice of India D.Y. Chandrachud had said that social media is being used by special interest groups to influence outcome of cases and judges need to be wary of them. Do you see social media as a nuisance and menace?
JHR: Social media has become a ubiquitous presence in our lives today. However, as judges gain more experience, they learn to remain unaffected by the information presented on social media, audio-visual media, or print media. By the time, judges reach the Supreme Court or High Court, they have acquired sufficient experience to remain impartial and not be swayed by external influences. While social media may be present, it does not significantly impact their final verdicts. However, for a newly recruited judge handling a highly sensational case, the intense social media focus can be challenging. At the level of the Supreme Court and High Court, judges are expected to demonstrate a high level of maturity and impartiality. I trust that our young judicial officers, through the training they receive, will be able to separate media pressure from the decision-making process and deliver verdicts based solely on the merits of the case. Undoubtedly, this is a significant pressure, particularly for young judicial officers, who must navigate an additional phase of the decision-making process.
SRS: On a lighter note, judges are considered very serious, but at your farewell function, it was said that you could have been equally good as a stand-up comedian or a quiz master. Your interest in arts and theatre is well known. What would you say about this aspect of your personality?
JHR: My reading habit has been instrumental in shaping my thoughts and conversations. Growing up, my parents, Kishori Roy and Prabhati Roy, always had books around our home, instilling in me a love for reading from a young age. As a result, my conversations often draw from life experiences, but also from the knowledge I’ve gained through reading. Although I may not have travelled extensively, reading has broadened my perspectives. When writing judgments, I occasionally incorporate literary phrases or references to Shakespearean plays to add depth and context. My goal is to maintain a light and approachable atmosphere in the courtroom, particularly for young lawyers who may be arguing their first important cases. Senior lawyers with years of experience are often unfazed by the court environment, but for junior lawyers, a supportive atmosphere can make a significant difference in their growth as professionals. When dealing with complex and significant cases, young lawyers can be intimidated by the court atmosphere. To alleviate this, I make a conscious effort to lighten the mood without compromising the seriousness of the case. By doing so, I hope to enable junior lawyers to present their cases more effectively, without added tension. This approach, I believe, has been appreciated, and I continue to make a deliberate effort to support young lawyers, as opposed to more experienced, seasoned practitioners.
SRS: What are your future plans?
JHR: As I have mentioned before, there are some positions in the government available for retired judges, and I was offered one of them. But after serving as a judge for 19 years, I now want to live as a private citizen. However, you know that Delhi is not a cheap city. I come from Assam, so one must also have a professional income. In law, experience never goes to waste. Legal knowledge is always useful for someone. So, whatever legal work is available to me as an experienced professional, I will be interested in taking it. This will help me sustain myself. Also, both my daughters are in Delhi, so I have no immediate plans to return to Assam. I wish to stay in Delhi for now and see what professional opportunities come my way while I am based here. This is my plan.