The Bombay High Court is currently on Diwali vacation. Why did the ritual of court vacation start?
Courts in India were established by the British government in 1860. In 1862 the Bombay High Court was established with seven judges; its jurisdiction was the presidency of Bombay, which included the city and Maharashtra, Andhra Pradesh, Karnataka and Gujarat. There were two jurisdictions: Original and Appellate. Cases coming out of Mumbai were taken up by the Original side and those from the rest of the four states by the Appellate side.
All judges were English people, who had families in England. They would go there and come back by ship: one month to go, one month to stay with them, and one month to come back. Therefore you have three months of summer vacation; that was a necessity.
After the Second World War, air transport had started, so it just needed one day to fly down and one day to fly back. But we don’t have British judges now.
What is the reason behindDiwaliand Christmas vacations?
Christmas was for English judges, and Diwali vacations came in as the number of Hindu judges increased; they also wanted to spend time with their families during the festival. The Diwali vacation is just for five days and the rest of it is October vacation, and for Christmas it is four days of the festival and the rest is December vacation.
What do judges do during vacations?
Judges relax themselves during vacations. The majority of judges are bored and wait for courts to reopen. Many of them opt to work during vacations. You will never find yourself without a court on any given day at any given place . When I was the judge, during vacations, I visited the entire country.
So, thenshould judges go on vacation?
Judges must have vacations. If a judge works in court for five hours, he has worked for five hours at least at home, reading relevant cases and laws. He does this for five days a week. He has to have rest to his brain; give it to him.
Judges should have maximum vacation of 100 days — 25 public holidays and 75 vacation days — plus if you are sick, you have sick leaves and good medical facilities to avail of.
What is an alternative way to these long court vacations?
Instead of reducing the number of holidays, break it up in such a manner that renders the judge judicially more active than he is now. The HC can so do it if 15 judges go on leave, and the 45 others can work. With this, there will not be any pressure on the judges and nobody will be overworked. Does it make sense to give Diwali vacations to Muslims? The same with our Christmas holidays.
It is absolutely incorrect to assume that all the 60 judges of the Bombay HC will want to rest for 30 days in May. If you get the vacation slot of your liking, you enjoy it better than a compulsory sit-at-home vacation during the summer, winter and Diwali holidays. Bombay HC has 60 judges; 45 of them will be willing to work during court vacations if they are given other slots of their choice to take their vacation. I, for instance, would prefer to go out in the monsoon and would rather spend the summer time in the city.
Instead, keep 15 days for winter, 15 for Diwali, and there are 15 public holidays. Let the judge choose when to take the rest of the 75 days. The administrative committee of the HC can decide this.
This is for the judges to change. It is entirely up to the judges and the lawyers.
Do you thinkreducingholidays will reducependencyof cases?
I don’t think so. It is not directly proportionate. Another aspect of this — and no attention is given to it – is the ratio of lawyers to judges. The fees the senior counsels are making? If you reduce the number of holidays, the senior counsels won’t appear.
What do you have to say about Courts increasingly entertaining a lot ofPILs[public interest litigation]?
The helplessness of the Indian judiciary has come in because of the burden it has taken up on itself. They have decided that sanitation, potholes, malnutrition… everything is my problem.
The other day the HC said, repair all ditches on the road in a month. Months went by nothing happened. Even if all the secretaries of the State came up with buckets and water, they can’t fill the ditches. These things must be done in a proper manner, and the machinery for that lies with the corporation. But you spend two hours every day for eight days on this matter, and blast the secretary saying: what is your government doing? Let the government decide what it wants to do.
Instead you should ask, why is the criminal court taking so much time in deciding a trial? Your job is to do justice. Stopping destruction of mangroves is not doing justice. You hear the PIL for so long, and nothing comes out of it. If it does, it cannot be implemented. All that happens is a good article in the newspaper. Merely delivering sermons from the bench can’t get any conclusion beneficial to the citizen for whom you think you are working. The conditions of a jail can’t improve with the jailer in prison.
So do you think the judiciary is overstepping, as stated by the government?
Tell me, is it worthwhile for the Supreme Court of India to appoint the Lodha Committee to look into BCCI [Board of Control for Cricket in India]? Is it the jurisdiction of the court to look into in that? If that is your job, who is going to look after the pending cases? The Board is established under the Societies Registration Act, 1860. The Board will decide. If it is functioning badly, the Board can be quashed and reconstituted.
The government is to a very large extent right in saying that the judiciary is interfering in whatever the executive and legislation decides. Judicial activism has to have a limit. What judicial activism is also needs to be defined. Constituting the Lodha Committee is unwarranted judicial interference. The first PIL by Justice Bhagwati, when he took up a letter by the prisoner: that was judicial activism. But you can’t widen it so much that every letter is treated as a PIL and every malfunctioning of the government is treated as a PIL. You must realise your own limits and those of the institution for which you are working. But if I like to see my name in the newspapers, then there is a lot to say.
What do you have to say about thependencyof cases?
You are blowing the matter of pendency out of proportion. Lower courts take 3-5 years to dispose of a case. It’s only in Mumbai that it takes 25 years. With a population of 1.5 crore, pendency is bound to be more. In lower courts, the pendency is not so alarming. If you have 100 judges who decide 10 cases per day, 1000 cases will be decided in a day. In the city of Mumbai, 1200 cases are filed everyday. Unless this ratio is changed nothing will change. You have to stop entertaining PILs and frivolous suits.
What is the biggest problem the Indian judiciary is facing today?
Lethargy. There must be an earnest desire to work and do justice. That’s your oath, and it’s your duty to fulfil your oath. Glamour, yes you have that, but you don’t become a judge for that. You become a judge to administer justice to the best of your abilities. If your conscience is clear, these vacations and face value won’t bother you. If there is anybody to be blamed for the arrears in courts, the courts are the only ones responsible.
What makes for a good judge?
The quality of judges does not depend on just brilliance and adequate knowledge of law. You must also have strong common sense. You must at least know the limits of your own capacity. Many judges shirk their responsibilities.
JusticePalshikar, now in his 70s, is a third-generation lawyer. He completed his law studies inNagpurin 1968, was a judge in theRajasthanHigh Court in 1995, and was transferred to Bombay in 2001. He retired in January 2007and has been an Arbitrator since then.
