Justice Vidyasagar Murlidhar Kanade, who retired from the Bombay High Court this week after a 16-year stint, has a few landmark judgements to his credit: allowing women to enter the sanctum sanctorum of the Haji Ali shrine, not allowing Indian Premier League matches in the city when the State faced a drought, and the latest, on June 13 , allowing 108 mangroves in the city to be cut for the Metro 3. The judgement may have raised a few hackles, but Justice Kanade says he did it for a reason: to balance the rights of citizens and the growth of mangroves. Mr. Kanade began his career as a lawyer in Mumbai in 1979, and became a HC court judge in 2001. As a lawyer, he says, he has “taken up all cases -- civil, criminal, commercial, excise, sales tax and indirect taxes; all except income tax.”
In a conversation with The Hindu, he talks about the judiciary’s role in public interest litigations (PILs) and how he was instrumental in creating a toll-free number for women’s safety.
You had two distinct cases before you: one was the saving of mangroves in Mira-Bhayander, and the other was their destruction for Metro 3. How difficult was it to have different approaches on this?
I have consistently been of the view that the environment comes first, but then it cannot come in the way of public utility projects that are essential for the growth of the city. [I had to] balance the rights of citizens and the growth of mangroves. Mangroves can be grown again, but when I saw that almost every day there was a death on the railway tracks, I felt that Metros are more important.
Despite several directions in public interest litigations (PILs) and suo motu PILs, there is no change on the ground; in cases of custodial deaths, for instance. What can be done to ensure compliance?
The concept of continuing mandamus (a judicial writ issued to an inferior court or ordering a person to perform a public or statutory duty) has to be adopted in PIL matters, because the state machinery is an impersonal juggernaut you need to push every time to keep it moving. Instead of disposing of the matter with a judgement, you ensure compliance at periodic levels and that the State government or instruments of the State have acted upon it. It was done in the Mahabaleshwar case; from no solid waste management plant in Mahableshwar and Panchgani, four plants were installed within one-and-a-half years.
What would you consider to be your landmark judgment?
When I was taking up criminal bail applications as a single judge, I found that four out of 10 matters were to do with atrocities against women. The accused was either charged with rape, bride burning, dowry death or his wife had committed suicide. I would wonder: am I here to simply grant or refuse bail in such cases or do I have a higher responsibility? So I called the government pleader and asked him, ‘What do you do with the women in such cases, as most of them don’t get a chance to go back to their parents; they are thrown out of the house once they file a criminal complaint?’
I thought of a helpline where such a woman can share her grievances. I asked for MTNL to be made a party in one such case, but they said they could not give a toll-free line; TRAI could. So although it was not a PIL and I was not in a division bench, I called for the Women and Child Development secretary and asked what their budget for this was. They said ₹3,60,000. Fortunately, TRAI agreed and a free helpline was started in 2008.
How can we make justice more affordable?
When I was taking up criminal cases as the Executive Director of Maharashtra State Legal Services Authority, I requested the presidents of the Appellate and Original side to prepare a list of senior counsels who would be willing to take up pro bono work. I received a big list; the work should be continued.
Also, one of the criteria to give out the senior counsel gowns can be to see how many cases they have appeared for pro bono . Even at the magistrate level during remand when hundreds of people are brought in a van, we can have a list of lawyers who can take uptheir cases pro bono as many of them are from another State and languish in jails for days.
What steps can we take to reduce pendencies?
First and foremost, just appointing more judges won’t help. Second, for arguments made in court, in other countries, lawyers are given a fixed time. I remember asking Chief Justice Woolf, former Chief Justice of the Supreme Court of England, how he curtailed the arguments of lawyers. He said in the Supreme Court in England, they were very ruthless. “We have three lights on the dais,” he said. “A green light, a red light, and an amber light. When the green light is on, the lawyer can go on and on. Once the orange light is switched on he’s put on guard. When the red light is switched on, even if he has not completed his sentence, he has to sit down, and they do sit down.”
We also need to prepare and analyse statistical data. For example, when I was a Guardian judge at the Metropolitan Magistrate in Bombay, there were lakhs of cases relating to just Section 138 of the Negotiable Instruments Act (dishonouring of cheques for insufficiency of funds). I asked all the judges to collect statistical data on the total number of cases pending, what stages they are at, and the reason why they are not being disposed of. Almost 70% of the cases were pending at the stage of verification. They have to be verified, the complainant has to be put in the witness box, on oath he has to state that whatever he has said in the complaint is true. Cases were also pending for service of summons, and of course, for evidence.
We found that only five major banks were responsible for filing 99% of cases. There were 5,000 cases filed every month, and 500 cases filed each day. So I informed the then Chief Justice Mohit Shah about it and we overruled a division bench judgment and told all these bank managers that apart from service of summons through the police — because in criminal cases that is the method — you can send a legal notice. The net result was that within one year, the pendency came down from 3,57,000 to 79,000 cases.
