Wielding The Gavel: View From The Other Side
Gautam Patel is a sitting judge of the High Court of Bombay in Mumbai. Prior to this, he practised in Mumbai, working on commercial, corporate, and civil litigation, as well as several environmental public interest litigation cases. Justice Patel has authored this piece for DAKSH - a civil society organisation that undertakes research and activities to promote accountability and better governance in India.
The days start early, usually before dawn. I prefer it this way: it’s very quiet, and the city isn’t yet fully awake. There’s time enough for a walk, plugged into music, and there’s so much joy in watching the sun come up, slowly lighting up the trees and the roads. By seven, or a little before, I’m back at my desk. A quick check through e-mail and the newspapers, and then it’s time to turn to the small mountain of papers for the day ahead. Most often, I bring them home with me, but there are days when the High Court sends around a van, one that looks like a small armoured truck, late at night. I’ve read some of them the evening before; the rest are for this morning.
This hits you hard, and hits you early, on the very first day as a judge with a senior colleague on a Division Bench: the rude realisation that almost the entirety of your work as a counsel was narrow to the point of being meaningless. From here, the vista is very different. You see a spread of cases and issues that is daunting in its width and frightening in its complexity. How on earth will I ever get on top of any of this? You ask yourself. Yet you must; it’s what the job demands.
More Than 80,000-90,000 New Cases Are Filed Annually In The Bombay High Court
The sheer volume is terrifying. They keep coming at you, one case after the other. There is a relentlessness about it, and nothing you’ve been told prepares you for this volume or this range: municipal issues, constitutional challenges, matrimonial cases, tax, custody, rehabilitation, policy, public interest litigations, criminal work, corporate matters, intellectual property cases, civil disputes, commercial disputes, motor accident appeals, bail — it’s impossible to describe. And there’s upward of 80,000–90,000 new filings each year across the High Court’s many Benches. The Chief Justice assigns and distributes the work. In the High Court of Bombay, we’re assigned work by category. No one ever asks for a particular class of cases. You do what you’re told to do, and you never know what you’ll be asked to handle. With dwindling numbers on the Bench, you often wind up with ‘multiple assignments’, doing more than one class of case.
“There’s No Such Thing As A Small Case”
As lawyers, we’re used to describing our cases as big and small, and this is a very loose way of describing the amount of work we expect to put into preparing for each. Here, we quickly see that there’s no such distinction. There are no unimportant cases. There’s no such thing as a small case. The shortest petition or plaint or application might have vast consequences. It might raise an issue of liberty, livelihood, a daily struggle. On day one, you lose all notions of such differentiation. What, you ask yourself, is more ‘important’: a case of thousands of pages that involves a few hundred crores or a short petition where the party says that unless we intervene, he will lose his only source of income, forcing him and his family into beggary?
This realisation is both shocking and liberating. It shocks because of the enormity of the gulf between one class and the next, and it is liberating because it absolves you, if you choose to see it like this, of having to make what I can only describe as the judicial equivalent of Sophie’s Choice.
‘Ten Commandments for a New Judge’
A few days after I was appointed a judge, I chanced upon a truly wonderful document. This is a transcript of 28 September, 1984 — at about the time I started studying law — of the Superior Court of State of Delaware at the investiture of Henry duPont Ridgely as an Associate Judge of that court. By our standards, it seems to be a strangely relaxed and informal process, and though no less solemn for all that, it is very different from our own procedures. This one was marked with wit, generosity, and humour. First Presiding Judge Stiftel said a few words of introduction, and then, after a prayer, he asked one of his colleagues, Justice Henry Horsey, to administer oath to the new incumbent. Justice Horsey’s words are ones I think we should all carry to the end of our days on the Bench. He spoke of the ‘Ten Commandments for a New Judge’ compiled by Chief Justice Edward J. Devitt of the Federal District Court in Minnesota. As Justice Horsey said, their universality is apparent. The Ten Commandments are these:
First, and foremost, be kind.
Second, be patient.
Third, be industrious.
Four, be prompt.
Five, there is no unimportant case.
Six, give the office the prestige and dignity expected of it.
Seven, but don’t take yourself too seriously.
Eight, be tolerant of appellate courts if and when you are reversed.
Nine, don’t leave home or the courthouse without your most precious tool, common sense.
Ten, pray for divine guidance.
In my case, I’d have to abandon the last, but that is a personal preference. Each of the remaining nine is a lodestar.
“There have been three separate occasions when I have felt the need to apologise in court to a lawyer”Justice Gautam Patel, Sitting Judge, Bombay High Court
The position of a judge is one that is very highly fault-tolerant: all our foibles and ignorance and mistakes are forgiven. Many are set right by courts in appeal. More often than not, the system works as it should. But accompanying this fault-tolerance is a real danger. In court, there are few instances when things we say or do are thrown right back at us. It is very easy, I find, to slip into a mode of constant annoyance or irritation, and to find excuses for it (this or that person is dishonest or incompetent, the work is too much, and on and on endlessly). We have the luxury of masquerading sarcasm as wit, of using a raised voice and harsh words to people who are seldom in a position to respond. Where in private conversation or among equals we might find ourselves ticked off for this, the robes of a judge and the elevated position of his chair provides an immunity of sorts. The real struggle is to watch out for this in yourself and not to hesitate in apologising to the person in question when you have erred.
It gives me no pleasure or joy to say that there have been three separate occasions when I have felt the need to apologise in court to a lawyer to whom I had spoken, in my view, in unfair terms. What astonished me when I did this was the very great surprise of the lawyers in question. I realised that they expected, and forgave, my transgresses, with no expectation of apology from my side. But I felt the need to do this because when we as judges are too harsh, we are quite clearly violating one or more of those nine or ten cardinal principles that should inform our every action and deed. Now not every judge does this, and perhaps I am wrong. But I ask myself this: in doing what I did, was the prestige and dignity of the office harmed? Was it not more harmed by my previous intemperance? And, this having happened in open court, is there any reason why reparations, for whatever they are worth, should be made in the privacy of our chambers and not in open court? There is no indignity or shame in acknowledging one’s mistakes. But when we decline to do this, we violate that seventh principle, of taking ourselves much too seriously.
The Discourse Of Law Is The Discourse Of Civility
The second struggle is finding a balance between excessive leniency and excessive strictness. One is mistaken for weakness; the other for impatience (or worse). The sheer pressure and volume of work makes this struggle very, very difficult. I have tried to make it a point not to carry over irritation or annoyance from one case to the next, and to keep the atmosphere in court somewhat lighter than most expect. This is a very personal thing; it just works for me, for I am the kind of person who chafes at rigid formality. I believe it’s just more efficient and more work gets done if the stress and tension are taken out of the interaction. Something in a lighter vein here or there, well-timed, defuses a potentially difficult situation and leaves no ill-will.
A senior judge of the High Court of Bombay, now Chief Justice elsewhere, once wrote that the discourse of law is the discourse of civility, and I cannot think of more pithy truism. Arguments from the Bar and responses from the Bench should be in the nature of an engaging conversation, a dialogue; at least I prefer it that way. I find it energising and exciting when that happens, and unutterably dull when it does not. What of the work itself? I find it difficult to describe just how wonderful it is, how multi-faceted, multi-dimensional, challenging at every stage. All of it is, really, problem-solving, and that process, of taking opposing views, weighing them, and taking a decision is one that I find enlivening and enriching. It is the best thing I have done, and I have enjoyed nothing more than what I do now.
To be sure, the workload is formidable. There are mountains of papers to read: our lists in the High Court of Bombay run to anything between 60 and nearly 200 cases listed each day. You can’t of course read them all, nor can you read each one thoroughly. You don’t even need to. Very soon, you discover the ability to read at very high speed, looking for the essentials, making the most cryptic notes. Depending on what the stage of hearing is, you may want to read further. At the early stages of a case’s life cycle, this is not always necessary; it’s seldom necessary. All cases go through set phases, and at some point they enter what I call maintenance mode, where routine filings are yet coming in. These need routine orders, and one need not spend much time on reading these cases in advance. There are cases for urgent orders or reliefs, and these I choose to read to the extent necessary. It is the ones that come up for final determination that take the most time. Of course, one reads these not with a view to making up one’s mind in advance, but only to get a sense or a drift of the matter. Most often, I find myself flagging pages for questions to put to the lawyers. I happen to enjoy reading, and I find myself uncomfortable addressing any work at any level without some measure of preparation, but this is also extremely personal. There is a view that one should never read ahead because one tends to predetermine the result. I am not of that school, and I have found myself frequently landing in a completely different zone than I expected when first I read the papers. Allowing space and time for arguments is vital.
“We Are On Trial In Some Strange, Subliminal Way”
What is very, very difficult for me is not the reading, but the writing. Judgments are torture. I struggle with the words, I harass and worry my drafts and even when I am finally forced to let them go, I always do so with reluctance and with the feeling that I could have bettered them: used fewer words, said the same thing more efficiently or quickly, fashioned the decision in a more appealing manner perhaps.
It is not so much a life of solitude as a solitary life. Amongst us, as judges, there is a very great deal of conviviality and bonhomie and we younger or junior judges — at least in the High Court of Bombay — are fortunate in our seniors, without exception. They are solicitous, careful, nurturing, and in times of crisis, always alert to divert risk away from us. I’ve said this before to my fellow appointees, and I truly mean it when I say that the High Court of Bombay is terrific place for a newly appointed judge. But none of that can help you when you’re sitting singly. It can be terrifying. We are not just on display, five hours a day, day after day. We are on trial in some strange, subliminal way. We are constantly being pushed and tested, examined closely to see how we respond to varying situations, how much of what is flung at us we can take.
The work itself is incredibly tiring. I mean physically tiring. For those five hours, there is absolutely no down time. As lawyers, you can drift off for a few minutes, break for coffee or tea, spend time chatting with a colleague and perhaps even play hooky once in a way. Our timings are rigidly defined and, as I will explain in a bit, that can be both a blessing and a curse. We do not have the option of showing up late, or of not showing up at all, unless there is a compelling reason. And for those five hours, it is totally relentless: one case ends in some order and the next one is already being called and the papers are being put in your hands or on your desk. Often, you have to mentally switch tracks — and not just to an adjacent track. The next case could be something completely alien to the one before. When you think about it, you realise that at the Bar, none of us is compelled to work like this.
By the end of the week, there is utter and debilitating exhaustion in your bones, and your brain feels completely addled. You then need that evening off, and I make it a point, just a matter of retaining sanity, to do that, and to involve myself in something else on Saturday mornings till lunch time. After that, and through Sunday, it’s more work again, more reading, more research, more writing. The schedules can be overwhelming, and you learn early on to carve out time for yourself, for a walk, a swim, taking the family to a movie on the weekend, something like that.
The isolation coupled with the sheer power of what we do can be dangerous.Justice Gautam Patel, Sitting Judge, Bombay High Court
I find, too, that the sheer volume of work has altered the rhythm of my life almost entirely. I no longer go out even for the shortest time, from Sunday evening to Friday evening. You cannot freely meet people and you wind up often being rude and asking for a guest list to make sure there’s no potential embarrassment. Your world shrinks even as the work expands your horizons. Important in this is, I believe, being blessed in having friends outside the law, the kind of people who are close enough to tick you off when you’ve gone wrong and who can keep you grounded. The isolation coupled with the sheer power of what we do can be dangerous. It is one thing to remain removed and distant. It is another to become detached from reality.
Of the many things we do, the most satisfying is not — strange as it sounds — ending a matter with a big judgment. It is the case that gets settled that yields the greatest satisfaction, and any one of those, especially in a family dispute, is worth a hundred judgments.
Judge Or Legal Pedicurist?
Here’s one recent example. The details of the case are unimportant, but it was once settled with consent terms being filed. A few months later, it all fell apart. Contempt petitions were filed. This was just before the summer vacation. Through the court term that followed, the two young lawyers broke their backs to get parties to settle. I saw that it could be done, and that the lawyers needed help. But the parties were adamant. As I listed the matter week on week, suggesting one way, then another, I felt nothing like a judge but more like a legal pedicurist, scraping away all that accumulated dead skin and detritus of years of suspicion and distrust. Through the lawyers, I pointed out the dangers of not settling. Slowly, the areas of controversy narrowed. It almost got done, and then it almost got entirely undone, on one solitary issue. There, I weighed in and expressed a view, and said I would not hesitate to put it in an order. I fashioned some sort of an order that seemed to work. The lawyers went back to renegotiate. There were days when they seemed so close: in the morning, they’d ask me to take it up in the afternoon or at the end of the day. And it went on like this from June to October. Then, on the day before Dussehra, just like that, it got done. They signed reams of documents, took a final order and it was over. I was overjoyed, and so too, clearly, were the lawyers and the parties.
And yes, this took time, and it took many adjournments, that thing for which we are all pilloried so very often. But those adjournments are sometimes, though not always, necessary and often unavoidable. Parties must be given some time to put in their responses. I do agree though that mindlessly adjourning cases is self-defeating and undermines our system. As a rule, I don’t allow it, and follow a simple mantra. An order of a court is not a suggestion or a recommendation. If a party has been given a time frame for filing, he or she must keep to it. A short extension for good reason is not unreasonable. But a second or third attempt at seeking time runs up against my self-generated brick wall. I just refuse or, if I must give additional time, I impose costs. That always works. I usually couple this with a self-operative order that provides for consequences of default in compliance and that seems to work well too. It is, in my experience, a grand myth to believe that lawyers want adjournments or profit from them. I do not think this is at all true, at least in the High Court. Keeping matters alive, and revisiting them again and again is burdensome. Lawyers welcome cases being finished and moving on to the next one.
Should Oral Arguments Be Limited?
People are wont to attribute the delays in our judicial system to adjournments, lengthy arguments and the insufficiency of appointments. Each of these has a role to play, but none of them is singly responsible, nor will addressing any one of them solve the issue.
Should oral arguments be limited? I do not subscribe to that. There are some cases that are complex and require time and elucidation; they just cannot be abbreviated. Besides, we, both judges and lawyers, are not sufficiently trained in the writing of concise and precise briefs or notes of written arguments. Quite the reverse: too often I find to my very great annoyance that the written submissions contain material never argued. Worse yet, they seek to withdraw points conceded during oral arguments. How does one deal with written material like this, something that comes in though never argued? Our system is centred around oral arguments. It is one thing to put some time limit on those arguments, and I am all for it. Oral arguments are important, too, because a skilled counsel will not press (or might even concede) a given point as a matter of strategy. Most important of all (to me at least) is that oral arguments allow for an actual dialogue, an exchange. This is impossible in written briefs. We need oral arguments to question, to probe, to answer our own doubts, to test our own understanding. And oral arguments do take time. I believe it is inherently unsafe to discard oral arguments completely or even relegate them to second place behind written briefs. Those who are not judges find this baffling. They cannot understand why this should be so. After all, they argue, isn’t it ‘simpler’ to read something, make up your mind, and decide? No, it’s not. It takes the human element out of it. It robs litigation of discourse, of dialogue and ultimately of understanding. There is a much quicker setting of one argument against the other. And then there’s this: give anyone more to read than she or he already has and expect matters to be delayed even further. Very often, we decide matters quickly, on the spot, making up our minds immediately. If we were asked to go back and study each set of briefs and then return a judgment, how much longer might that take? Also, does one apply this rule of written-arguments - only to all litigations, irrespective of their complexity, or only to a select few? Why? It is not a question of which of the two is ‘determinative’. The question more accurately put is which of the two yields a sharper understanding of the issue more often? We use written briefs in a limited way, as an aide-memoire, to supplement our own notes. That, I think, is how it should be.
How Many Judges Are Enough?
To say, too, that simply by appointing enough judges all our problems will be solved is a grotesque oversimplification. It assumes that all judges are equal, that they are somehow like computers, and if you have enough of these judge-computers, you can spit out judgments. This is a bogus approach with not the slightest shred of merit in it.
I have sometimes heard a single case for a considerable length of time. I thought the issues justified it. The very same case in the hands of many of my colleagues might conceivably have been finished in half as much time. I may have taken a very great deal of time to write a judgment on them; others may have finished it in a few hours. It is only partly a numbers game, in the sense that the volumes are so high as the DAKSH study shows, that we need more manpower to see them through their life spans. But to assume that having a full complement of judges will automatically result in an eradication of all arrears is simply wrong and without any basis or understanding of the process of judging. Every day brings new challenges, many forced by my own limitations. I find I cannot remember details with sufficient clarity to able to correct an order dictated in court several days later. I have had to force my staff (a wonderfully supportive lot) into a different rhythm: they must give me the day’s orders in soft copy by the end of the day. I correct them in soft copy and it is an invariable rule that turnaround times are 24 hours: orders dictated one day must be made available the next and no later. I think that is every litigant’s right, and it makes no difference to him whether I have in that day dealt with five cases or fifty. His interest is in his case, and he is, I think, not unreasonable in asking that an order copy be made available to him in the shortest possible time.
It also troubles me that we use so little of the technology at hand. My secretarial staff lives a distance away and to ask them to stay late, come in early, or come in on weekends is onerous. One of them must travel 90 minutes in one direction and the same time to return. It is much more efficient, I’ve found, to use a digital voice recorder and transmit the digital audio file over a secure connection. They download it at their residences (both have computers at home) and type it up without having to commute, in their own time, and return soft copies by email. That is more than enough, and it works seamlessly. I do not suggest that this workflow is for everyone, only that it is one that works very well indeed for me.
This is, after all, an entirely personal perspective. But it is the only one I know, and one to which I am now not just accustomed: for the work of a judge is addictive, and I freely confess to succumbing to that addiction.Justice Gautam Patel, Sitting Judge, Bombay High Court
I find my work liberating in ways I did not imagine. Even the now almost routine receipt of virulent and accusatory mail does not diminish this sense of freedom. We set our own pace and timelines, and the neat structuring of each day is comforting. We do have constraints, especially social ones, but I find these matter little as long as one is careful. My friends outside the profession remain close, and within the profession I count as true friends those who are my fiercest critics; and there is no dearth of those, for good reason.
I enjoy the solitary nature of the work and, yes, the enforced retreat and solitude. It brings with it quiet, and time and space for thought and reflection and study. Most of all, I relish the reading and the writing the work involves. I am not going to pretend that anything I describe here is typical. I cannot; I simply don’t know the routines and rhythms my colleagues follow, or what it is they do in other courts elsewhere. This is, therefore, a very personal view and, too, one that is in a sense nascent: I haven’t been long enough on the Bench, just short of three years now, to know if there is anything like a ‘standard’ in these matters. I am glad for the opportunity to write this. I admit to some hesitation: I do not know if it is appropriate or inappropriate, but as I do not propose to write of any specific case or even a class of cases, I suppose it should not matter very much.
I grant that this may not be the approach or outlook of every one of my colleagues. This is, after all, an entirely personal perspective. But it is the only one I know, and one to which I am now not just accustomed: for the work of a judge is addictive, and I freely confess to succumbing to that addiction.