“A lawyer who extols only litigation in courts is a loser”: In conversation with Justice Kannan Krishnamoorthy (Part-II)

This informational interview is Part 2 of the 2-part series. If you have missed reading the first part, click here to read the same on our blog.

Part C – From the Bar to the Bench – Mr “Justice” K. Kannan

“Years ago Harold Laski in his tribute to Justice Holmes described the hallmarks of a great Judge: A great Judge must be a great man. He must have a full sense of the seamless web of life, a grasp of the endless tradition from which we cannot escape. He must be capable of stern logic, and yet refuse to sacrifice to logic the hopes and fears and wants of men. He must be able to catch a glimpse of the ultimate in the immediate, of the universal in the particular. He must be statesman as well as jurist, thinker as well as lawyer. What he is doing is to shape the categories through which life must flow, and he must have a constant sense of the greatness of his task. He must know the hearts of men, and yet ask to be judged from the conscience of their minds. He must have a constant sense of essential power, and yet be capable of humility in its exercise. He must be the servant of justice and not of its master, the conscience of the community and not of its dominant interests. He has to put aside the ambition which drives the politician to search for power and the thinker to the construction of an abstract system. No one must be more aware of the limitations of his material, none more hesitant about his personal conviction. The great Judge is perhaps the rarest of human types, for in being supremely himself he must yet be supremely selfless. He has to strive towards results he cannot control through material he has not chosen. He has to be in the great world and yet aloof from it, to observe and to examine without seeking to influence. … A great Judge seeks to make the infinitely small illuminate the infinitely great. These are stern and exacting tests….”  (From the autobiography of Justice H.R. Khanna, Neither Roses nor Thorns, Eastern Book Company, pp. 92-95).

The above is discernible about Justice Kannan Krishnamoorthy from various judgments pronounced by him. Notable ones are: Manmeet Singh v. State of Haryana[1], which sparked a nationwide discussion on honour killing; Ram Sarup v. State of Haryana[2], where the compensation to a person, falsely accused of raping his daughter, was withheld by the State on the ground of the accused having passed away and that his heirs are not eligible for inheriting the said compensation under the Succession Act, 1925. Carving out an exception, Justice Kannan observed:

“13. … I have carved out an exception to this norm only because the case presented an occasion for a discourse for change of law of what the courts alone cannot do. It is the synergy of efforts of several persons who carry the torch of reformatory spirit that can make India vibrant to weed out archaic laws and usher an orderly change through a new set of laws. This order also underscores the potency of public law remedy in areas for human rights violations, where conventional litigation of vindicating ordinary civil right in civil courts might fail.

His journey as a Judge has been a “spiritual journey”. As an advocate (and later, senior advocate), fees would be the last item in the arduous litigative matters handled by him, even when it is spread over a long period. According to one of his juniors, in a murder case, the children of the prisoner were taken care of by him and were entrusted to an orphanage, which he would continue to visit to observe their wants and cater to their needs.

Hearken, ladies and gentlemen, despite the above words, I regret falling short of introducing to you, our interviewee guest, a great Judge, Justice K. Kannan, who, in the words of Justice V.R. Krishna Iyer, “placed justice on a pedestal higher than the rigours of the letter of law demanded”.

The interviewer, Mr Ujjwal Jainis a Student Ambassador for EBC-SCC Online and is currently pursuing law from Tamil Nadu National Law University, Trichy.

 

  1. “A Judge should live like a hermit and work like a horse.”[3] Lord Eldon and endorsed by Justice G.P. Singh[4]. How did your work-life balance change after you became a Judge?

I had earlier links with Rashtriya Swayamsevak Sangh (RSS) and was a board member of Vivekananda Kendra. I was also associated with another trust that published religious books. I weaned myself completely from associating with all activities of these organisations. I distanced myself with all organised religious activities also. I seldom took leave and never hesitated to set up hearings even on holidays if there were any urgent hearings necessary. Unlike a lawyer’s life when you will be disturbed at any part of the day for work, it is easier to organise work for a Judge. Apart from court timings, administrative work and dictations used to take 2-3 hours everyday and reading the next day’s brief also used to take as much time. There was time to read and listen to music as well. I committed myself to lectures at the Judicial Academy both at Chandigarh and at Bhopal on a regular basis so as to keep myself abreast with the latest trends of law.

 

Good behaviour percolates from top downwards. An (acting) Chief Justice’s expression, willing to recuse himself disclosing the possibility of a bias and making an honest statement about the Government of what seemed to him to be improper is worthy of emulation.” Justice Kannan when he was the Editor of the Madras Law Journal (2006) 4 MLJ-Civil.

  1. In recent times, there have been occasions when some Judges have recused themselves from cases without providing any reason. Should there be prescribed rules and procedure to adjudge the need for recusal of a justice from matters before the Supreme/High Court?

Recusal shall not be without assigning reasons. Any likely apprehension of bias must be confronted by disclosure of interest on a voluntary basis and if any party indicates the slightest level of bias, it is better to avoid hearing the case. If, in the course of hearing, the party or counsel says to a Judge that he appears to have taken a view and wants a recusal, the Judge should not recuse, for it is difficult to keep mum and not express any opinion in the course of hearing. Your conscience is the best indicator whether to recuse or not and statutory guideline such as what obtains in Arbitration and Conciliation Act, 1996 could be applied across the board to all situations.

  1. Q. The recent incidents at the Supreme Court of India prompt me to put forth the question which Justice Ruma Pal recorded in her Justice K.T. Desai Memorial Lectures. In your opinion, “Do Judges in India suffer from an arrogance of power inasmuch as they use the powers under the contempt laws, to silence criticism and muzzle dissent, to harass and intimidate those who disagreeas has been alleged by one writer of repute[5]?”

[The above quote is an excerpt taken from “Judiciary and the Media”; Second Justice K.T. Desai Memorial Lectures delivered by Justice Ruma Pal, former Judge, Supreme Court of India, on 22-2-2007. Read the transcript of the entire lecture in Chapter 4, Dimensions of Justice: Justice K.T. Desai Memorial Lectures, compiled by Smt Justice (Retd) Sujata Manohar]

By and large, Judges want to be in the good books of lawyers and do things to please the Bar. Some are petulant and too conceited to take any criticism. If there is one section that needs to be restrained, it shall be Judges. Judicial performance is far below par and we need humility to accept that dissatisfaction about our performance and inability to deliver are bound to evoke constant consternation from the public and lawyers. Again, in an adversarial system of justice, it is difficult to dispatch both parties happy by your judgments. It is better to ignore even unjustified criticism. Contempt powers shall not be used, except when judicial work is directly stopped by noisy conduct in court and to cite an extreme example of what happened in Supreme Court, when a shoe was hurled at Judges by a litigant or brazen disobedience of the order of court.

  1. Q. What are your views on the idea of establishing a separate court of appeals, to lessen the burden of the Supreme Court? The Attorney General for India Mr K.K. Venugopal has been mooting for this idea for a long time and the Vice President Mr Venkaiah Naidu raised a similar demand. In your opinion is this measure feasible?

It is a great idea. Now the Supreme Court interventions are ubiquitous. Just not the issue of appeals, but SLPs against orders of bails and interim orders must be barred. The Supreme Court ought to exercise restraint in making interventions propelled by a powerful lobby of lawyers from all levels for all types of litigations. The Bar shall do itself service to publish annual restatement of laws to solidify propositions of law on a sound basis, the same way as the American Bar Association does and vex courts to weave inconsistent opinions by persistent approaches. They must approach the Supreme Court only to address important constitutional issues and resolve differences in views among High Courts. The Supreme Court must spell such a policy limiting its jurisdiction.

 

Presently law graduates are allowed to sit for judicial services examination throughout the territory of India without having any experience at the Bar. The Bar Council of India, vide Press Release dated 2-1-2021, is now mooting for a minimum of three years’ experience at the Bar as a recruitment to be eligible to sit in the judicial services examination.

  1. In your opinion is it a step in the right direction?

I think so, too. I have met with young judicial officers who have become Judges without a day’s practice at the Bar, confessing to their fear of officiating in courts with no prior knowledge of the lawyers’ ways. Among lawyers, there are wily ones; unscrupulous some; adjournment maniacs, many. To handle them all, you must have rubbed shoulders as a lawyer. You need to be well versed in procedural laws which could be cultivated only in practice as a lawyer. A sound Judge is one who understands a lawyer’s way of thinking and could walk in his/her shoes, as it were. 

  1. Speaking of reforms in the lower judiciary, do you think All India Judicial Services will be a more efficient mode of recruitment of Judges to lower judiciary and is now long due?

I surely think so. With scams all round in universities, have you ever heard of wrongdoing in UPSC selection process? Do you ever doubt the quality of our IAS, IPS and other all India services’ personnel? In our constitutional scheme, with States having a say in judicial appointments, we must get the States to invite the Centre to help them recruit Judges at an all India level. I think, an administrative committee set up by the Supreme Court under the chairmanship of Justice Adarsh Goel (Retd) has already made recommendation to this effect.

Part D: “Superannuation is no full stop”: Madhyastham and taking mediation to the next generation

Justice Kannan has shown a keen interest in the alternative dispute resolution methods from his early days of practice. The setting up of a mediation centre at Kurinjipadi (Cuddalore Taluk) in 1981 and conducting of several successful programmes between the years 1987-1990 is a testimonial to this fact. This was among the first few mediation centres in the country. He was among the first to be trained as a mediator in a formal way in 2005 at Madras High Court, where court annexed mediation took root in the same year. As a Judge of the Punjab and Haryana High Court, he was a member of the Mediation Committee of the High Court that devised programs for training lawyers and members of the subordinate judiciary.

Justice Kannan attended mediation courses at the “Program on Negotiation” at the Harvard Law School and at the Centre for Negotiation and Dispute Resolution, University of California Hastings College of Law in 2017 and in the same year he was awarded the prestigious Weinstein JAMS International Fellowship. As the Chair of the Railway Claims Tribunal (RCT), with 22 Benches in 19 locations across the country, Justice Kannan promoted a settlement culture in the Railway Administration by proactively entertaining claims from victims of train accidents through officers of the RCT, and the rendering of rapid compensation awards. During his three-year tenure at RCT, he structured a system to assist the Railway Administration in identifying genuine claims and offering settlements without an adjudicatory process.

He is an expert mediator who carries his learning in diverse fields of law to advantage in mediating different types of disputes and he is the Founder-Director of Madhyastham, a friendly outfit to popularise, train and practise mediation.

 

  1. Would it be right to state that your initiation into mediation began during your college days when, under the stewardship of Prof Madhava Menon at the Pondicherry Law College, a legal aid clinic was set up and where you took active part in the legal aid related work? Also request you to share your interactions and learning from Prof Menon with our readers.

There is no doubt that it was the participation in legal aid work at the law college, thanks to Prof Madhava Menon’s initiatives that gave me the foretaste of passion for mediation and impelled me to deepening of my interest in the field of alternative dispute resolution (ADR) systems. Prof Menon’s office room as principal was also the venue of the legal aid clinic and he would sit through the whole session, with retired Judges, law students and litigants filling his room and spilling all over the corridors. He did not mind the din one bit and he would observe each one of our engagements with the parties with keen interest. His close association with Krishna Iyer, Bhagwati and L.M. Singhvi, among others, who were the architects for seeding the thought to the legislators for engraving Article 39-A to the Constitution, got them coming to the college and we felt excited to be hearing them in their lectures and be involved in the movement, as though we were beginning a revolution. The interest cultivated at that time, has just not waned. 

  1. On being conferred with the Weinstein JAMS International Fellowship, you had the chance to shadow multi-million dollars’ worth of commercial disputes with renowned mediators practising in California and New York. If you could please share some of your learning experiences at the fellowship with our readers.

What our court delays have still not done, the costs of litigation in US have pushed people to embrace mediation. The law schools breathe the vibrant spirit of ADR systems and Judges are themselves keen proponents of settlement culture. Every court has a panel drawn for engaging in various types of activities, like early neutral evaluation (ENE), non-binding arbitration, arbitration or mediation before any case is brought for trial. Lawyers have faith in their own resourcefulness to negotiate the disputes of their clients, and they line up specialists in mediations sessions for keen, intense dialogues. Leading law schools constantly train just not their students but offer certificate courses to Judges, senior lawyers, company executives and community leaders in the art of negotiation and mediation. Law firms actively promote settlement culture and make powerful endorsements to leading mediators and advertise on their own track record of high levels of participation in mediation. A lawyer, who is not trained in the art of negotiation and who has no mediation practice as an attorney, is no lawyer; a litigant, who shows no keenness in ADR systems is not cool. These are my learnings in USA and now, like never before, I want every student to know that adversarial posturing is no way of succeeding as a lawyer. Developing skills in ADR systems is the key to be a successful lawyer.

 

  1. Recently, you were part of the Committee constituted by the National Institution for Transforming India (NITI) Aayog which was constituted to draft a law on mediation. Has the same drawn inspiration from the Singapore Convention on Mediation? When can we expect the Indian law in action?

Singapore Convention does not apply to matrimonial disputes and inheritance-related property disputes. The inspiration from the convention is the imperative for a standalone legislation. There are persons who believe that Part III of the Arbitration and Conciliation Act could be tweaked to introduce mediation as an umbrella term to include conciliation also and there is no need to make a separate law. We have debated stoutly in our committee meetings and have presented a draft that recommends setting up Mediation Councils at the Centre and State levels tasked to formulate syllabus and accreditation processes to foster a new body of professionals. We will have a system of depository at the District Court level to gather all data and settlements accessible to any party for enforcement at courts, where persons reside or within whose jurisdiction the property is situate and make mediation compulsory, when human resources are built adequately to cater to the needs of the society. Lawyers ought to see this movement as aiding their practice not just in court but outside of it and hence will augment more work and get prepared for this massive shift to a non-adversarial settlement culture. To make capital of adversities, the present occasion, with limited work in courts and social distancing, is godsend and propitious to develop new skills to welcome the legislation on mediation, when it comes.

  1. What would be your advice to a conformist litigator on alternative dispute resolution mechanisms like mediation?

A lawyer who extols only litigation in courts is a loser. If lawyers must resist this transition from court-based litigation to collaborative solution-seeking ways to conflicts, it could be only in a state of lack of confidence to shift gears and pedal on gas to adopt new techniques of advocacy that are not adversarial but accommodative, not rooted in argumentative traits but in negotiating skills.

Part E: Conclusion and autobiography

Success leaves clues” says Tony Robbins. When Motilal C. Setalvad penned his autobiography My Life: Law and Other Things he confessed in his Preface, “I attempted in this book to set down an account of my life … because it might be an encouragement to others.

  1. Is there a plan on cards to pen an autobiography for encouragement to the younger members of the Bar, law students and your admirers?

Oh, no, I still have lots of autobiographies and biographies to read and learn. The younger members of the Bar have other lofty seniors, law students have their teachers and books, and my admirers live in another planet!

This informational interview was taken by Mr Ujjwal Jain, EBC-SCC Online Student Ambassador, who is currently pursuing law from National Law University, Tiruchirappalli.

*Due credits to Advocate Mr Amrith Bhargav and Ms Sonal Dughar for their kind help in this informational interview.

** Picture Credits to Weinstein International and timescontent.com.

[1] 2015 SCC Online P&H 222.

[2] 2016 SCC Online P&H 1517.

[3] (2015) 8 SCC J-31 at J-34

[4] (2014) 1 SCC J-50 at J-56

[5] Arundhati Roy, re, (2002) 3 SCC 343.

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