Sanjay Kishan Kaul

“So, it seems you like intellectual property rights (IPR)”, Justice Kaul enquired in his deep baritone while examining my CV.

I stuttered and mustered the courage to ask, “why do you say so, Sir?”

He responded, “You seem to have scored well in the subject. A lot of IPR matters are before me in this roster.”

Thinking whether to tell him the truth that while I did score well but I was not too drawn to the subject, I decided to hush my generally straightforward self and hesitantly replied, “Yes Sir”.

“So, we will see how it goes for a week and then, I will let you know. You can start tomorrow.” He said.

This was my first interaction with Justice Kaul, the then Judge-in-charge, Original Side, Delhi High Court. At that time, little did I know that my first job is going to be a life-changing event for me. It is rather an emotional moment for me to pen this down and my heart is filled with all love and gratitude. No words can do justice, I feel, to express what imprint he has left on my life. Through my 16 years of practice, I have met and worked with several people I truly respect and admire, but then, none like, my Sir.1

How does one describe, Justice Kaul? Words fall short but he is and shall always remain a star-seed of our legal fraternity who illuminated the dark corners of our legal system. A distinguished jurist known for his unwavering commitment to justice. A man true to his word, full of humility, with an unmatched judicial temperament and an indomitable spirit. A people’s Judge, a good listener, detached, blessed with an eidetic memory, persistent to the extent of being unmoved (especially when it came to some issues) but above all, humane. One of his greatest attributes remain that he almost immediately gets to the level of the person he is interacting with and makes him feel at ease. A man with an iron fist but a heart of gold. An interesting facet about Sir is that while he enjoys being in the company of people, he equally enjoys his solitude, may be more.

People who have worked at close quarters with him would vouch for it that the kind of attention he paid towards the growth and development of ones around him was unparalleled be it his brother/sister Judges, members of the Bar, his law clerks or his court staff. One way to describe him would be a hard taskmaster with an infectious energy for sure. Over these years, he has played different roles in my life i.e. of a boss, a guru, a mentor, a friend, I could always turn to, who always made time for me. The nostalgia of the days spent working with him and the radiance of those memories always make me smile from ear to ear.

I still remember, the courts were closing for summer break and he asked me, “so where are you off to”. I replied, “Nowhere Sir. I am here.” I thought he would be pleased to hear my reply but he said, “you must take a break. It is very important in our profession, else, you would burn yourself out”. As a person fresh out of law school then, this conversation came as a pleasant surprise for here was a boss, who was insistent that I travelled and made time for my hobbies and for things, I otherwise enjoyed doing apart from work. A workaholic by nature but he ensured that Friday evenings he spent playing golf. I hope he can now get back to his game like old times.

Another important facet of his was time management and the way he kept everything organised. When sitting in Court, he maintained the perfect balance of keeping the overall atmosphere light while preserving the decorum of the Court. Just by observing him from a distance or when holding Court, there was so much that I learnt. I felt that each day, I was growing as a professional, as a person.

When his roster changed to the criminal side, he was sceptical but then, he gave one of his finest judgments while sitting in that roster. His Court was famously called the bail court for he believed that personal liberty must be protected and preserved at all costs. That’s Justice Kaul, always rising above the challenge and scaling up greater heights.

Socrates said, “Four things belong to a Judge: to listen courteously, to answer wisely, to consider soberly and to decide impartially.” Sir perfectly fits the Bill for what makes a good Judge and has always stood up for judicial independence, impartiality, integrity, propriety and the appearance of propriety, equality of treatment to all before the courts, competence and diligence.2 Irrespective of who appeared in his Court, he would grant relief if there was a case made out. His quality of showing respect to the senior members of the Bar and being equally encouraging to the junior members, is an attribute, I wish to imbibe.

Seeing him in Court on his last working day and advocates pouring in from across age groups and States, bidding him valediction filled with accolades, made me run down my most treasured memory lane. Through my tenure with him as his law clerk and our deliberations over matters and issues, one thing which consistently fell from him was, “People must have the tolerance to others’ opinions.” This thought has always stuck with me. No wonder, he is considered as the torchbearer of freedom of speech and expression which reflects in his judgments, be it, the famous M.F. Husain decision3 or the Perumal Murugan judgment4 where he held that a book could not be dismissed merely as sensational, reactionary or mean-spirited. It was up to the readers who had a choice to read it or not. For a society to grow and prosper, it was important that we learnt to coexist in harmony respecting the others’ viewpoint even while in disagreement.

His quality of independent thinking and his invaluable contribution towards individual liberty has been gift to the Indian judiciary. “Whatever has been, has been, the future is ours to see…. The art of humanity and inclusiveness should be central to the process … to facilitate a reparative approach that enables forgiveness for the wounds of the past….”5, master at the choice of words touching million hearts, I feel, the conviction in his writing comes from his living by these beliefs. As a true champion advocating civil liberties, he believes that it is not our differences that divide us but our inability to recognise, accept, and celebrate those differences which is the real issue.

A Judge is known by his judgments and I feel, Sir’s judgments with his farsightedness are an honest endeavour to create a fair and progressive Bharat. While discussing the significance of same-sex unions, he emphasised that such unions were recognised in antiquity, not simply as unions that facilitate sexual activity, but as relationships that foster love, emotional support, and mutual care. He attached much needed importance to the fact that the practice of equality necessitated acceptance and protection of individual choices and held,

402. … The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others. After all, “it’s my life”.6

They say, a fulfilled life does not point to the number of years, awards, wealth and followers someone amassed for himself, but the number of faces that smiled because of him, the number of lives he touched for the better. Giving equal status to women with their male counterparts in Army and Air Force,7 he echoed the sentiment that women are strong, what is needed is the change in which we perceive their strength. Through this judgment, he has inspired women and generations on to dream more, learn more, do more and become more. Laying stress on reformation of those who have fallen out of law, his suggestions for effectuating the provisions relating to plea bargaining/compounding/Probation of Offenders Act, 19588; regarding the convicts who are undergoing fixed terms sentences and are in jail, and for the remission of sentence for such convicts9 would go a long way in shaping the criminal justice system in India.

The list of the landmark judgments by which Sir has added to Indian jurisprudence is endless10, suffice to say that in the pursuit of justice, Sir’s name would be etched in history.

Until I met Sir, I always wondered, who is a better Judge, a Judge who pens good judgments or the one who cuts the chase and is focused on disposal. While he spoke through his remarkable judgments, he laid equal emphasis on case management and keeping a close eye on disposal of matters. Being the Sanjay of Mahabharat, he had the vision, wisdom and farsightedness while dealing with matters at hand11; he had a pragmatic approach with a commercial acumen to see through things and get the pulse of the matter.

I would never forget his “get the monkey off your back” approach which he applied to almost all his roles. His ability to find the diamonds in the rough; nurturing them; trusting them; giving them complete independence while delegating tasks; standing by them; appreciating and acknowledging them is what makes Justice Kaul really stand out. He really knows how to take people along with him.

Apart from what I have already stated above, my experience, while assisting Sir in writing judgments was a delight also because of his openness to hear others’ views which did not necessarily match with his and allowing others to express their thoughts fearlessly. Though it is a separate discussion that then he would be determined to convince you to see the other side. The point is that with his stature, he did not have to but then, that is his grace.

Sir is a rare combination of excellence, both on the judicial side and administrative side. A leader in both letter and spirit. He has played the protagonist in giving life to mediation as we see today. His contribution to National Legal Services Authority (NALSA) as its Executive Chairperson is outstanding as also in giving India its 1st Regional Conference on Access to Legal Aid and Strengthening Access to Justice in the Global South.

Institutions do not survive unless there are individuals who care deeply about it and are willing to make efforts to keep it thriving. The weak crumbles when the odds stack up and surrenders even before making any attempt to overcome the obstacles but the great ones see adversity as a challenge. With his Midas touch, as a Chief Justice of the Punjab & Haryana High Court and the Madras High Court, he turned the tides which is a testament of how institutions can be run efficiently if they are under the right leadership howsoever the circumstances be. He is a man who kept the interest of the institution ahead of and above everything else. He has left his footprints wherever he travelled and left his fingerprints on the many hearts he touched. It would not be out of place to state that he has left a legacy.

Before I end, I must thank you Sir for making me, shaping me into who I am today. Thank you for being the wind beneath my wings. You would be sorely missed.

Every new beginning comes from some other beginning’s end. Hope that this milestone shall not be an epilogue but a prologue to a new journey for you, even more fulfilling and filled with your most cherished memories.

Let me just end by quoting Obaidullah Aleem, “Ai, khuda ke bande, aankh se duur sahi, dil se kahan jaega, jaane waale, tu humein yaad bahut aaega.”

†Independent Practitioner.

1. If you wanted the sky

I would write across the sky in letters

That would soar a thousand feet high

“To sir, with love”.

2. Six principles are contained in the Bangalore Principles of Judicial Conduct.

3. Maqbool Fida Husain v. Rajkumar Pandey, 2008 SCC OnLine Del 562.

4. S. Tamilselvan v. State of T.N., 2016 SCC OnLine Mad 5960.

5. Article 370 of the Constitution, In re, 2023 SCC OnLine SC 1647.

6. Supriyo v. Union of India, 2023 SCC OnLine SC 1348.

7. Babita Puniya v. Secy., 2010 SCC OnLine Del 1116.

8. Probation of Offenders Act, 1958.

9. Policy Strategy for Grant of Bail, In re, 2023 SCC OnLine SC 483.

10. Mahesh Bhatt v. Union of India, 2009 SCC OnLine Del 104, where the issue was as to what extent Government could regulate commercial speech to safeguard public health, he struck down Rr. 4(6), (6-A), (6-B) and (8) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 as ultra vires the parent Act and being violative of Art. 19(1)(a) of the Constitution of India.

K.S. Puttaswamy v. Union of India (9-J Privacy), (2017) 10 SCC 1, where he held that right to privacy was guaranteed under the Constitution of India.

Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899, In re, 2023 SCC OnLine SC 1666, where he ruled that arbitration clauses in unstamped or inadequately stamped agreements are enforceable. Insufficiency of stamping does not make an agreement void or unenforceable but inadmissible in evidence.

11. From the farewell speech given by Justice D.Y. Chandrachud, the Chief Justice of India for Justice Kaul.

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One comment

  • Excellent tribute to remarkable legacy of Justice kaul!

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