Guest Post by Venkat Iyer

To say that there has been an alarming fall in the standards of competence and integrity among judges in India in recent decades would, as an exercise in understatement, be on a par with noting that deserts are a little hot, dry and sandy.  That the problem has affected all levels of the Indian judiciary – from the magistracy to the highest court in the land – has been a particular cause for concern, not least for those who look back with nostalgia at the high regard in which courts in India were held as recently as half a century ago.  The causes for the decline are as deep-rooted as they are varied.

Against that backdrop, the appointment to the Bench of anyone who combines a modicum of talent with a marked reputation for uprightness cannot but be an occasion for rejoicing.  And so it was when a relatively young practising lawyer, Gautam Patel, was made an Additional Judge of the Bombay High Court in 2013.  In line with the expectations of those who keep an eye on such things, Patel was subsequently confirmed as a permanent Judge of the same court.

Justice Patel soon established a reputation for efficiency, courtesy, firmness, punctuality, good work habits, courage, and sound common sense in the performance of his duties – all of which qualities endeared him to the vast majority of lawyers and litigants who had also, of course, set much store in his rectitude – an area in which he did not disappoint.  The judge had, in short, begun his career with much promise, and it would not be an exaggeration to say, even it involves deploying an over-used cliché, that he represented a breath of fresh air.

There was, however, a fly in the ointment.  For all his virtues, Justice Patel soon began exhibiting tendencies which, whilst not being fatal, have a strong potential to remove the shine off even the most illustrious judicial career, if allowed to go unchecked.  Chief among these is an impulsiveness which results in decisions that sit ill with the even-tempered judgment expected of a dispenser of justice.  Such impulsiveness came to the fore quite glaringly in an order passed by the learned judge on 22 February 2017 which has, unsurprisingly, attracted much media attention.

The case itself was a routine – even anodyne – commercial suit, involving a fight between two multinational companies over advertisements for competing depilation products for women.  If the media reports are to be believed, it had been filed in December 2016 and had come up for a preliminary hearing in early January 2017 when counsel for one of the parties, on being faced with a substantial reply from the other side, sought an adjournment of a few weeks to be able to respond with a rejoinder – a routine enough procedural move in such litigation.  This request would have ordinarily been met with a judicial nod, accompanied at worst by an exhortation to the counsel concerned to avoid any further delay.

Justice Patel, however, reacted differently.  Passing an order dripping with sarcasm and reflecting barely concealed high dudgeon, he chastised the lawyer who had asked for the adjournment and directed that the matter should next appear “very low on board on 3 November 2020”.  As a further act of castigation, he ruled that, if the plaintiff wanted to seek an earlier hearing, it should deposit in advance a sum of “at least Rs. 10 lakhs [1 million]” to cover “a potential order for costs for this attempt to consume scarce judicial time in a battle over advertisements of rival depilation products for women.”

Few will doubt the learned judge’s sincerity in wanting to speed up the delivery of justice.  It is a noble goal whose relevance to contemporary India cannot be disputed, given the scandalous delays that have led, in millions of cases, to a cruel denial of one of the most important fundamental human rights.  But even the most ardent admirer of Justice Patel will be hard put to defend such impulsive and high-handed behaviour which smacks, at best, of an appalling lack of maturity and, at worst (to those who may not be aware of the judge’s genuine crusading zeal in the cause of justice), of inexcusable arrogance.

It is to the judge’s credit, however, that he realised the error of his ways and, in an unprecedented order passed on 6 March 2017, made an apology of sorts, although – significantly – he did not alter the terms of the previous order.  It will still remain a matter of some concern to many observers, not to mention to the parties involved, that his ill-tempered and harsh directions continue to hold the field.  A disquieting aspect of Patel J.’s second order is that it appears to have been driven primarily by media reaction to his initial outburst.

Nor is this the only occasion when the learned judge has behaved in a manner that has raised many a legal eye-brow.  In September 2015 he launched a similar broadside against a litigant, the National Stock Exchange, which had filed a defamation suit in relation to a magazine article containing disparaging remarks about some of its trading activities.  Refusing the plaintiff’s motion for interim relief, Justice Patel ordered it to pay the defendants (the magazine and two of its journalists) an aggregate sum of Rs. 50 lacs [5 million], including Rs. 23.5 lacs [2.30 million] each to two hospitals – chosen by the judge randomly, some would say arbitrarily – as a charitable donation.

That order was extraordinary by any standards.  Not only did it go against well accepted principles on the grant of interim reliefs in defamation suits, it also had the effect of pre-judging the outcome of the suit before a trial had taken place.  On the merits of the order – which was striking both for its length and for its gratuitous and vitriolic observations against the plaintiff, not to mention a pretentious and self-indulgent tone – there was, predictably, much adverse reaction from commentators, including sharp criticism over the jurisprudential infirmities of the judge’s analysis of the law governing this area.  One observer even accused the judge of ‘grandstanding’.  Unsurprisingly, the order was promptly stayed by an appellate court.

It is entirely possible that the judge, in indulging in such behaviour, was actuated by the loftiest of motives and driven by a burning sense to right what he saw as a monstrous wrong.  But his office requires him to exercise certain restraints which an activist or a crusader may disregard.  Even if he ends up furthering the cause of justice (which in the Stock Exchange case is debatable), he has to be mindful at all times of the need to conform to judicial discipline.  As the late Lord Devlin, a distinguished former Law Lord, noted many years ago, “The Judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven but on earth he is no use at all.”

There is a further risk.  However worthy the motives, aberrations of this kind can lead to perceptions that the judge is inclined to ‘play to the gallery’ and to get a cheap laugh from sections of the public and the popular media whose instincts in these matters are not always well-honed.  In the long term, a judge who veers towards any conduct that smacks of populism may end up losing his credibility and, even more importantly, the trust of lawyers and litigants alike.

In more enlightened jurisdictions, such judicial waywardness or foibles would be dealt with through appropriate training, either at the stage of induction or in bespoke sessions organised as and when required. Unfortunately, that does not appear to be a realistic option in India, given the unsatisfactory state of the existing provision for judicial training within the country. A cursory glance at the curriculum, methodology and personnel deployed at the various judicial academies reveals a disappointing picture.  It is to be hoped that, as the country gets richer, more resources will be channelled into improving such training, including by seeking the assistance of reputed equivalent institutions in other Commonwealth countries or by inviting foreign experts to run appropriate sessions in various parts of India from time to time.

There is a crying need in the India of today for talented and upright judges such as Justice Patel.  It would be a pity if an inability to curb exuberant inclinations or to resist the urge to fly off the handle blighted the careers of such judges.

Dr Venkat Iyer is a barrister and legal academic based in Northern Ireland.  He can be reached at [email protected].