On 22.12.2024, after the conclusion of the Justice E S Venkataramiah Centennial Memorial Lecture, NLSIR's Barath Arjun (Editor-in-Chief) and Saumitra Khullar (Deputy Editor-in-Chief, Blog) sat down with Justice P.S. Narasimha of the Supreme Court of India for a candid, interview-style discussion. The conversation spanned across a range of topics, including judicial interpretation, mediation in India, and fourth branch institutions. A transcript of the same is published below.
Note: Only minor edits have been made for readability.
Q: We would like to begin on a personal note. It is often said that “the bench may separate the lawyer from the judge by only a few feet, but the gap in perspective is the journey of many miles”. As one of the few advocates elevated directly to the bench, how has your perception of the law changed – both conceptually and in its practical manifestations – over the last few years?
A: The content remains the same. The laws are the same, and their interpretations are the same, the approach to understanding facts, analyzing them, and formulating them as a lawyer, or in the form of a judgment – these are all one and the same. However, the procedural aspects like conducting proceedings, eliciting correct answers from advocates, and then translating this to a judgment constitute the fundamental differences between a practicing lawyer and a judge. A lawyer does not have those obligations post an argument because he walks away happily. The burden then shifts exclusively onto the judge to write a sound judgment. A person practicing as a lawyer has no experience with this. That is the only – and the primary – difference. The responsibility of the judge is far greater than that of a lawyer.
Q: You have been a huge proponent of mediation in India. I remember seeing a few talks by you where you mentioned that mediation can be a viable cure to the malady of pendency affecting our Courts. With the passing of the new Mediation Act of 2023, we are now observing a shift towards mandatory pre-litigation mediation. How do you view the future for mediation in India? What possible reforms do you see as necessary in the coming few years?
A: We need to work the system out. It is not enough to make a statute and declare that we will now start shifting towards mediation. It will depend upon lawyers’ conviction about it, and the information available to litigants about obtaining justice through mediation with greater ease. In other words, litigants have to be asking advocates to opt for mediation. Then there is also the question of infrastructure (both soft and hard). For instance, how many Mediation Service Providers are there? How many mediators are there within these centers? Where are trained mediators to be found? There is an institutionalized system of Mediation Service Providers under the Act that operate much like law firms. But we also need to reflect upon how they can be encouraged. How will they come into the field, and how quickly will disputes be resolved?
All of this depends upon a very important factor – who does the handholding. The statute contemplates the Mediation Council for this role. However, the Council has not yet been notified. Even when the Council is appointed, problems may still persist. The Chairman of the Council needs to be appointed. Till the entirety of this process is completed, how does mediation move forward? Ultimately, it depends on all of us, and how we work the system.
Q: As you know, India celebrated the 75th anniversary of its Constitution. This is a remarkable feat, especially given the circumstances it was born in. What would you say are the key reasons behind its resilience? And what would you say are the challenges that Indian Constitutionalism is likely to face going forward?
A: I think the Constitution has worked very well, and the people who are running the Constitution have also worked very well. We coped with many things. The way to work the Constitution was not known to us when we took over. But slowly and steadily, we have learnt so much from our mistakes.
I think there is great strength in Indian character, which according to me, is what determined its trajectory even more than the written text of the Constitution. At the same time, I think it is also very misunderstood – that we are an undisciplined lot. According to me, that is a very wrong perception. This is now independent India’s third generation. We have those who worked before and after independence – the first generation before 1950, then the second generation who are people like me, and then the third generation comprising of students like you. The first and second generation had the essence and experience of the freedom movement and were very keen to establish it in terms of what we dreamt and what we wanted to have. But after two generations, the country has stabilized and your generation is the modern generation upon which it is dependent – how firmly will you entrench the Constitution’s principles in terms of what people need, or what the country needs – rather than what we as professionals need. There is a world of difference between the two: Professionals may prosper but people may remain where they are. That is where the success or failure of the Constitution will be determined.
Q: On judicial interpretation, of both statutes and constitution – we often see philosophies such as originalism, textualism, and living constitutionalism being strongly associated with judges (such as in the United States). In India, we do not necessarily associate judges with interpretive philosophies. Why would you say that is the case, and is there a philosophy that you think our courts have taken?
A: I think that is a good thing. To be wedded to a philosophy that is not ever-changing and being imprisoned in that does not work. Moreover, it would be a shame to deviate from a philosophy once you pronounce your commitment to it. So, then it is like becoming a member of a club or a political party, you cannot come out of it.
Ultimately, what you need to be wedded to is not a philosophy but the truth. When you say philosophy, you are talking about concepts. Concepts change. But if you are wedded to truth, then irrespective of the concept which you so strongly believe in generally, but which can depart from truth in certain cases, you can adjudicate with consistency. I think in the case of our Constitution, our judges should be committed to truth – that’s all. Depending on what question needs to be answered, you might consider 1 or 8 philosophies at that moment – there is nothing wrong about it. But to declare that I have a certain philosophy and be forced to adopt and apply that irrespective of realizing that it is not closer to truth would be disastrous according to me.
Q: My next question is from your address at the Justice E S Venkataramiah Centennial Memorial Lecture. You mentioned that design principles (style, structure, and substance) matter a lot for the optimal functioning of an institution. In India, we have a variety of statutory as well as constitutional institutions that fall under the ‘fourth branch’ category. Do you think it is possible to harmonize these institutions through judicial interpretation?
A: Harmony across institutions will arise only when there is a conflict between these institutions. From what I recall, only once has such a conflict arisen – in a telecom matter, the TRAI wanted to conduct affairs in its own way, which conflicted with the perspective of CCI (Star India v Sea TV Network). Conflict is traditionally not between institutions. Conflict will be between the institution and another branch, like for instance, the executive. Invariably, it will be the executive, because it insists on its power and wants to enforce this power while the regulator – the fourth branch institution – is expected to act independently. That is where the conflict occurs.
Q: Following up on that, how do you view such different fourth branch institutions as a judge? All of these institutions perform different functions, and are designed very differently. Can we think of them under a common banner, or is there difference in how we should view these them separately? Are there common principles through which you view them or appreciation of differences also?
A: I would say there is a world of difference between each institution. As I mentioned in the lecture, the SC/ST Commissions are designed for a completely different purpose as opposed to say, the CAG or the Finance Commission. The latter monitors the financial working of the State and then check whether public spending is appropriate. As opposed to that, the SC/ST commissions are talking about life as such, i.e., how do we improve life? The question then is whether their suggestions, ideas, recommendations are being followed properly or not and whether they are being implemented or not. For something like the Election Commission, the issue will be about independence. To what extent is their independence influenced by the state? They all operate differently, and there is no commonality. However, one commonality that you can say they share is the necessity for independence.
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