Constitutional provisions protect both good, bad judges: Justice Hrishikesh Roy
Justice Roy offered an unfiltered look at judicial challenges, from accountability and liberty to transparency.
Justice Hrishikesh Roy, who retired as a Supreme Court judge on January 31 following a five-year tenure, offered an unfiltered look at judicial challenges, from accountability and liberty to transparency. In an interview, he also spoke about the limitations of the redressal mechanism to deal with errant judges and the collegium system. Edited excerpts:
The Supreme Court is a unitary institution for the people of India. However, judges and benches differ starkly on issues of liberty, which is the most fundamental right. What is the solution to ensure consistency?
Each judge swears upon the same Constitution, which contains Article 21 and Article 14. So, we are not applying different laws; we are applying the same law. Now, you may be right, and there is criticism that on questions of liberty, which are crucial, stark differences can sometimes be seen. As the Supreme Court or as the higher judiciary, we are the protectors of constitutional rights and liberties. If there is a dilution in how liberty issues are addressed, those should be seen as aberrations. But eventually, even if in an individual case an error occurs, the institution is capable of correcting itself. It can course-correct and be the upholder and sentinel of liberty, which I firmly believe it is.
Do you believe constitutional courts are doing enough to ensure executive accountability?
The degree of performance will always differ based on perception. An individual case sometimes gets on the wrong track, and sometimes it gets on the fast track. That is the nature of the system. A detained person represented by capable lawyers obviously has an advantage over someone who lacks similar representation. The ability to command additional time to argue and present a case can influence the outcome. However, an experienced judge can instinctively assess and tilt the balance in favour of a deserving person. Even if a case is not presented properly, a conscientious judge will recognise when someone deserves a fair hearing. This is something that remains a constant in a judge’s mind -- especially one who understands the responsibilities of their position and the duty to uphold the Constitution and the law.
What are your views about adequate representation in the Supreme Court, particularly regarding regional, religious, gender, and social diversity?
The Constitution itself provides for giving opportunities to disadvantaged groups. But my take on this is very specific -- If we are addressing a particular segment, we must choose the best within that segment. The best person in that category must meet the benchmark set for judgeship. If there is no one who meets the standard at a given time, then we may wait six months or even a year for the right candidate to emerge. However, if we are considering a weaker section or a segment that deserves representation, the key is to identify the best individual and select them. That is something I feel very strongly about.
The collegium system remains one of the most debated aspects of judicial administration in India. Having been part of the selection process in both the high courts and the Supreme Court, do you believe the system is functioning optimally?
In terms of optics, the criticism that the system lacks transparency is valid. The collegium selects judges for the high courts and the Supreme Court, and there is extensive material available for consideration. However, the collegium does not merely consider the exact number of vacancies -- it evaluates a larger pool of candidates. For instance, if there are five vacancies, the collegium considers a larger group before shortlisting the final five. Now, if A, B, and C are selected while X, Y and Z are not, putting the entire process of shortlisting into the public domain would be counterproductive. Every candidate is a professional lawyer and publicly revealing that someone was considered but deemed unfit for judgeship could damage their professional reputation. Today, they may not be selected, but two years later, they might meet the criteria. Therefore, while it is important to highlight the reasoning behind why certain names are selected, keeping the deliberations confidential to some extent is necessary to protect those who were not chosen.
You were part of the collegium that interacted with Allahabad high court judge Shekhar Yadav following his controversial remarks. Despite concerns, no action has been taken . Does this not create an impression that judges operate beyond the constitutional accountability they often emphasise?
I cannot comment on an individual case, but judicial independence is safeguarded through a constitutional “raksha kavach” (protective armour) to ensure that judges can function without fear or favour. Now if there is an aberration, my answer is: whatever the current processes that are in place, they are not adequate to address it because you have a strong “raksha kawach”. This “Raksha Kawach” also protects somebody who may not be on the right track. I understand that the Chief Justice of India has initiated an inquiry, but such processes cannot be rushed because eventually, executing a conclusion is also a burden on the same set of people (collegium). A judge must be given an opportunity to respond, and only after due consideration can a decision be made. The only formal mechanism for removal is impeachment, which comes with its own complexities and limitations. Therefore, this “raksha kavach”is there to protect, as they say, both good judges and bad ones.
As you retire after more than five years in the Supreme Court, what do you see as the institution’s greatest strength? Conversely, what is its biggest challenge?
One of the greatest strengths of the Supreme Court is that it is staffed by some of the sharpest legal minds. These lawyers play a crucial role in assisting the court by presenting well-researched arguments that facilitate just verdicts. However, the Supreme Court is certainly not a place for someone who does not have the wherewithal to engage a good lawyer and have their matter heard. This is not only a question of money but also of distance. For someone from remote Mizoram or Arunachal Pradesh, travelling to Delhi and engaging a lawyer is a significant challenge. But now, with virtual hearings, a lawyer from Guwahati or Kerala can argue a case without having to travel to Delhi. This has brought a level of balance to the Supreme Court’s accessibility. A well-prepared local lawyer appearing virtually can often present a case better than someone unfamiliar with the regional nuances.
Do you see pendency as a challenge and what could be the ways to tackle it?
Pendency is certainly a challenge, and every Chief Justice has their own thoughts on tackling it, but resolving it requires collaboration between the court and the government. Expanding judge strength or infrastructure alone is not the solution. For instance, despite having a sanctioned strength of 150 judges, the Allahabad high court has never managed to fill all its positions -- because there simply aren’t enough good candidates. Another challenge is unnecessary delays. Often, a case that entered the Supreme Court six years ago appears before a bench, and the judge wonders why notice was even issued in the first place. I have made it a point to write brief reasons whenever I issue notice, pass an interim order, or even dismiss a matter. This helps future judges understand why a decision was made, rather than leaving them puzzled over why a case has reached a particular stage.
The Supreme Court often speaks in multiple voices, with different benches arriving at different conclusions on similar legal issues. Does this create uncertainty in the law, and should there be greater consistency?
Polyvocality is inherent in our system. Unlike the US Supreme Court, where all justices sit together, the Indian Supreme Court functions with multiple benches of two or three judges. Naturally, differences in judicial philosophy emerge. There have been instances of inconsistency, such as different benches ruling oppositely on death sentences in similar cases. Some judges are more liberty-oriented, while others take a stricter stance. This is part of a judge’s individual orientation, whether in cases of tenant rights, labour laws, or constitutional matters. That said, precedent remains key. Judges are expected to follow established law rather than personal beliefs. When dealing with unexplored legal territory, interpretation varies, but that is the beauty of the system --a single case can lead to multiple perspectives, enriching jurisprudence.
With social media amplifying judicial proceedings and sometimes misinterpreting judgments, do you think this affects the judiciary? Should judges engage with such narratives?
Social media cannot be ignored, but judges should not engage with it. An experienced judge may be unaffected, but for a newly appointed judge, the constant scrutiny, live tracking, and sensationalism can be overwhelming. Misinterpretation is a major issue. Court discussions are nuanced, but a single comment may be taken out of context and turned into a viral narrative. There is no clear solution to this intrusion, but mature judges learn to block out the noise. This is certainly an intrusion and needs to be checked. I may not have an answer to how that can be done but if it could be checked, it would be a good thing.
What would you say to people who may perceive the Supreme Court as inconsistent or slow in delivering justice?
The Supreme Court of India is a place where people come for justice. And more often than not justice is attained, albeit a bit of a delay. But be sure that for each judge sitting in the Supreme Court, the first thing that is in his mind or her mind is how do I do justice in this matter under consideration. Therefore, have faith in judiciary as you have always had. Don't be disheartened. Don't get misguide by a few stray events. The Supreme Court is steady; the Supreme Court is steadfast; the Supreme Court is absolutely resolute in its determined effort to uphold the Constitution and the constitutional values.