The Leaflet

| @theleaflet_in | March 9,2019

HON’BLE the Chief Justice of India, Justice Ranjan Gogoi, a very respected and revered Mr. K.K. Venugopal, learned Attorney General for India, Mr. Rakesh Kr. Khanna, President of the Supreme Court Bar Association (SCBA), Mr. Jitendra Mohan Sharma and Mr. Vikrant Yadav, Vice President and Secretary, SCBA, my sister and brother Judges in the Supreme Court (present and past), Solicitor General and Law Officers,  Executive Members of the SCBA, President, Secretary and office bearers of the Supreme Court Advocates-on-Record Association and other Bar Associations, Senior Advocates and other Advocates, my family members, my law researchers and interns, legal correspondents and all gentle persons present on this occasion.

I thank SCBA for holding this grand function and giving me an opportunity to address all of you for the last time in the capacity of a Judge, as after today, I will not be able to return to this Court either as a Judge or as a Lawyer.  I wish to convey everyone present here that you have made this day memorable for me by expressing your uninhibited warmth and love.  That is the greatest reward which I have received today.  It has given me the subject matter of my today’s address.  I feel that for me it is an occasion for thanksgiving to all those who have been associated with me from time to time during my days as a student, during my journey as a lawyer for 22 years and thereafter during my judicial career spanning over 20 years.  Let me start with today’s ceremony.

I profusely thank the President, the Vice President and the Secretary of the SCBA for the liberal contents in their respective speeches.  It is well accepted that the Bar is the Judge of Judges.  I am grateful for the judgment which the representatives of the Bar have pronounced on me today.  I profusely thank Mr. Venugopal, who, in the capacity of the Attorney General for India, coupled with the fact that he is one of the senior most members, notwithstanding his young age, has showered his blessings on me in the kindest words.  I am equally beholden to Hon’ble the Chief Justice of India whose love and affection towards me was more than visible in his passionate address. 

I also want to express my gratitude to my parents and teachers.  Whenever, I visit educational institutions, many students ask me as to what is the secret of my attaining first position in LL.B. and LL.M.  Initially, without applying much mind on this question, my spontaneous reply used to be that it was the result of hard work.  However, one day I pondered over this.  No doubt, I worked hard and I worked smart as well.  But I found that in my college days there were students who were more laborious and smarter than me.  There were also students who were more brilliant than me.  I felt that I could not claim myself to be the brightest student.  In spite thereof, how was that I could be at the top in every semester?  Meditating over this question for some time, I got the answer.  I realised that apart from hard work and IQ, there was a ‘plus factor’ on my side as well, which did all the magic.  It was the blessings of my parents, love of my teachers and kindness of God.

My father has been my true mentor; my guide and philosopher.  He imbibed in me the values of ethics and morality, not only in legal profession but in life generally.  It has given me the strength to tide over difficult times. 

My mother was epitome of selfless love who had the capacity to sacrifice anything and everything for her loved ones.  The affection and care that I was given by my teachers was unparalleled which not only sustained me but helped me in achieving rare distinctions.  My association with my teachers continues even today.  I had the privilege of becoming their colleague as well for some time and they fondly address me as ‘Professor Judge’.  Even today, I remember and cherish the kind words of Professor Upendra Baxi when I was leaving the Law faculty of the Delhi University as a teacher on completion of my five years tenure, because as per the Ordinance of the Delhi University, one cannot teach for more than five years as a part-time teacher.  At that informal farewell, Professor Baxi remarked: “We are losing a teacher like Arjan Sikri because of such a provision in the Ordinance.  I wish there was discretion with the Dean to relax this condition in deserving cases.”

When I joined as a young advocate, I was fortunate to receive the blessings from all senior advocates and doyens of the Bar.  I was fortunate to have the encouragement of the Judges at the Bench.

 

 

Our profession has a unique character.  As a young advocate, I briefed and assisted many senior advocates in many cases, not only in Delhi High Court but in this Court as well, including Mr. Fali S. Nariman, Mr. Soli Sorabjee, Mr. K.K. Venugopal, Mr. P.P. Rao, Mr. Ashok Desai, Mr. Anil Divan, Mr. Dipankar Gupta, to name a few.  I immensely learnt from them.  After assuming the position of a Judge, these very advocates have appeared before me.  Their arguments in the Court and manner of presentation of cases was another dimension of learning.  As Advocate, I appeared before many Judges in the High Court.  Later I became their colleague at the Bench.  Interestingly, after reaching this Court, few of them who retired as Judges of the High Court have appeared before me.  This unparalleled kind of feature which makes you grow in so many ways.  I am thankful to all these lawyers and Judges.

Justice Santosh Hegde, in one of the gatherings at National Judicial Academy, had exhorted the High Court Judges by narrating an anecdote about himself.  He said that on becoming Additional Solicitor General of India, when he shared this news with his father, his father remarked: “I do not know whether you deserve to be ASG or not.  However, since you have now become ASG, you prove yourself to be worthy of this office”.  I do not know whether I deserved to be elevated as the Judge of the High Court.  However, I knew that by becoming one, I had taken upon myself a great responsibility.  As a famous saying goes: “With power comes the responsibility”.  With humility I accepted this so-called power, but decided to exercise the same for advancing the cause of justice.  I decided to exercise the same for improving the administration of justice.  I can only say that I have tried to contribute whatever I could, in my humble way.

In this mission of mine, I also got inspiration and continuous guidance from my senior colleagues, encouragement from my contemporaries and support and appreciation from my juniors on the Bench.  I believe that wisdom comes from all corners.  You have to sit with an open mind, treating yourself as a student who is still learning.  I never forgot this part of mine who is still a student even while sitting on the dais in the Court.  It is for this reason that I have learnt a lot from the Bar, not only from seniors, but even from young advocates.  I do not feel ashamed in saying that I have learnt many lessons also from my law clerks and law students as well, who interned with me.  Therefore, my thanks are due to all of them and today I formally express my gratitude to each and every colleague of mine.

Some of my colleagues have become my eternal friends with whom love and bonding would not diminish even slightly.  I will cherish the affection showered on me by all my colleagues, for all times to come.

There is a Judge’s Prayer.  That is one prayer which every Judge should know.  I recite it regularly.  Since Judges discharge divine function (I believe justice is divine), the Judge in that prayer is praying to God to be merciful to him so that he is able to administer justice.  I will read a portion thereof which goes like this:

 

I may, this day, fulfil all my duty in Thy fear and fall into no error of judgment.  Give me grace to hear patiently, to consider diligently, to understand rightly and to decide justly.  Grant me due sense of humility, that I am not be misled by my wilfulness, vanity and egoism.

 

Is Judging a difficult task?  My answer is both No and Yes at the same time.  My experience has shown that almost 95% cases are those where the results are known and it is not difficult to decide them.  These are easy cases.  However, the remaining 5% cases may fall in the category of hard cases.  It is these cases which pose challenge to the Judge as outcome of such cases may have many ramifications. Whether a Judge turns out to be an extraordinary Judge depends upon how he decides those 5% of cases.  Judges are not moral or intellectual giants, Prophets, Oracles or calculating machines.  They are all human workers.  But here intuition also plays an important role.  I can say with some sense of authority and experience that most of the Judges are able to develop extraordinary intuitive powers, which normally lead them to right directions.  At such occasions, to listen to my intuitions is to identify with my entire awareness, to be my entire experience and not just my conscious perception.  My total synthesis into a calm sense of direction, coupled with reason, showed me the right paths.

I do not know how far I have succeeded.  However, I always kept in mind pragmatic approach to justice.  I always tried to balance the conflicting interests.  I have always strived to acquire ‘sense of justice’, particularly when it came to giving justice to the marginalised section of the society, be it poor persons, differently-abled, transgenders, women or children.  I have endeavoured to learn from the four methods of legal progression defined by great jurist Benjamin N. Cardozo in his book ‘Judicial Process’.  I have gained a lot from Judge Richard Posner, ex-Judge of the Court of Appeal in United States of America, from his books, including the book titled ‘How Judges Decide’.  Insofar as fundamental duties of a Judge in a democracy are concerned, the book authored by Aharon Barak, ex-President of the Supreme Court of Israel, titled ‘Judge in a Democracy’ has inspired me immensely.  He mentions two main functions of a Judge in a democracy, namely: (a) to uphold the Constitution and the rule of law; and (b) to bridge the gap between the law and the society.

I may disclose here to this august gathering that even at this age of 65, there is a child in me.  It has kept intact some kind of ‘innocence’.  This innocence ensures that there is no malice for anyone, and that helps in doing justice.

It has also empowered me to emulate and practice what was said in a film ‘Follow the Fleet’ released in the year 1936:

 

There may be trouble ahead

but while there is moonlight and music

and love and romance

let’s face the music and dance

 

Let me make another confession today.  By nature, a part of me is feminine.  Going by the qualities which this gender possesses, I am of the firm opinion that every male, in order to be a complete human being, should possess some elements of femininity.  After all the symbol of justice is a goddess, i.e. a female form.  No doubt, she is shown blindfolded.  However, her heart is not shut from where emanate the qualities imparting justice.  In the first place, it teaches us:

 

Everyone may not be nice,

but there is someone nice in everything,

never keep a fixed image for everyone,

because people act differently in different situations.

 

It helps inhering the qualities of doing justice which is pregnated with mercy, justice which has the attribute of compassion.  It is the attribute of femininity which instils the desired sensitivity, that is required in varied types of cases and in various circumstances. 

It is well-known that women have sixth sense.  I told earlier that while discharging judicial function, with the passage of time, Judges acquire sense of justice, which is their sixth sense.  However, there is a pre-condition to that, namely, you have to have feminine approach to justice.

There was an interesting project undertaken by the Cambridge University few years ago, known as “The United States Feminist Judgments Project”.  The answer which the project wanted to find emanated from the thematic question – “What would the United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective?”  To begin to answer this question, they brought together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant U.S. Supreme Court cases on gender from the 1800s to the present day.  While feminist legal theory has developed and even thrived within universities, and feminist activists and lawyers are responsible for major changes in the law, feminist reasoning has had a less clear impact on judicial decision making.  This Project took up 21 cases of the Supreme Court and applied feminist reasoning on the issues involved in those cases.  On that basis decisions were rewritten and the conclusion was that previously accepted judicial outcome were not necessary or inevitable and demonstrated that feminist reasoning increases the judicial capacity for justice, not only for women but for many other oppressed groups.  What else is needed to prove my point?

I may point out, in a lighter vein, that there was a mild debate of the sort on the issue: whether Judges should smile.  According to me, whether Judges should smile in Court or not, is an issue of secondary nature.  Prime issue, which is also the test of a good and successful Judge, is – “how many smiles I have brought on helpless faces?”  If I have succeeded in that mission, there would be an eternal smile in my heart.

As I look back to my life, one of the most constant and powerful things I have experienced is the desire to be more than I am at the moment, a desire to increase the boundaries of myself, a desire to feel more, learn more, express more, a desire to grow, improve, purify, expand.  It is this desire coupled with your good wishes and blessings that will keep my morale high to do better in future as well.  Whatever I do, I know one thing – I am going to occupy myself in constructive things. I am free and I am still young. I shall enjoy my retirement doing different things and sometimes just “being”.

I shall only say at the end that God has made each of us unique and designed us for a special purpose in life.  When we find that purpose, accept it, and put our all efforts into fulfilling it, we find contentment.  I am a contended person today.

Taking inspiration from the farewell speech of Napoleon Bonaparte, which he gave to his old guard, I say at the end to both, my colleagues at the Bench and Bar:

I bid you farewell.  For 42 years I have constantly accompanied you on the road to honour and glory.  You have invariably been models of courage and fidelity.  I go, but you, my friends, will continue to serve this great Institution.  Adieu, my friends, I wish I could embrace you all in person.  But, I assure, you will always remain in my heart.”

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