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Andhyarujina got through the Indian Foreign Services but took up law.
“It was a difficult decision to make. I opted to go for the legal profession for two reasons. One, my father was a lawyer in Bombay. Secondly, we knew HM Seervai, who was an eminent jurist.”
A junior lawyer working under one of the biggest names in the constitutional law, HM Seervai, Andhyarujina never regretted his decision. He spent fourteen years in Seervai’s chambers.
“Seervai was not one of these run of the mill lawyers. He didn’t believe in being in the profession just to earn money. He himself had a very distinguished academic background. In many respects, he was not only a lawyer but also a person who understood and read law in depth.”
Seervai was not one of these run of the mill lawyers. He didn’t believe in being in the profession just to earn money.
Andhyarujina may have been working with the biggest names in the profession, but it wasn’t a particularly easy phase of his life.
“Like all juniors, I had a difficult time. In Bombay, a raw junior doesn’t immediately make money. He has to really struggle to become well known. For example, Seervai himself, though he was very distinguished and a good lawyer, had to wait and struggle for 5-7 years.”
Andhyarujina admits that being in Seervai’s chambers did help in some aspects. His first brief earned him thirty rupees. And working under Seervai when he was Maharashtra’s Advocate General also provided for a great learning experience.
“Whenever the government changes, the law officer is changed”
“Seervai maintained the high stature of his office and his own position because he was not a political appointee. Governments came and went but Seervai was not called upon to resign with a new government”.
Once Seervai ceased to be Advocate General of Maharashtra in 1974, Andhyarujina struck out on his own.
Eventually, Andhyarujina would be made Advocate General, and later the Solicitor General of India. And that is what got him to Delhi in 1996.
“We maintained those traditions. Even though we were not prohibited from appearing for a private party, we never did. I never went to the Secretariat to meet any ministers when I was the Advocate General. The ministers used to come to our chamber and we gave dispassionate advice. Even as Solicitor General, I maintained that practice.”
However, he points out that these practices are no longer followed today because law officers tend to give advice, which is favourable to the government. He says,
“As a law officer, you are not expected to be an adjunct of the government, you have to be aloof and straightforward. Unfortunately, whenever the government changes, the law officer is changed, which should not be the practice.”
There is no use disguising the fact that the standards of the legal profession have fallen
After nearly six decades in the profession, Andhyarujina says that there have been tremendous changes at the bar and the bench, changes that are not necessarily positive.
“There is no use disguising the fact that the standards of the legal profession have fallen; even the standards of our Supreme Court have fallen. It had a great image when it first began and it was a court, which decided important national cases of Constitutional importance, and we had only about 8 judges. Today, the Supreme Court has vast jurisdiction – it is practically like a court of appeal and you have 31 judges.
“Correspondingly, the standards of the lawyers arguing in courts have changed tremendously. We don’t have the old giants, which we had in the earlier days like Motilal Setalvad, CK. Daphtary, Nani Palkhivala, and HM Seervai. Regrettably, today we don’t have anybody of that character and integrity. It is a great pity”
Radical Reforms required
Andhyarujina is not very optimistic that things will improve in the near future.
“I don’t see anything in the horizon which will restore the character of our Supreme Court.”
“I don’t see anything in the horizon which will restore the character of our Supreme Court.”
For real change, one needs radical reforms.
“First of all, the workload which it has taken of petty matters has to be shed. These matters have to go to another national court. Secondly, the number of judges should decrease to about eight. Also, the quality of the judges must necessarily improve, which is a matter of great controversy today.”
“To improve things, you have to see the other Supreme Courts of the world and compare those with ours. The United States Supreme Court decides only about 80-90 cases every year. We are fascinated only with one thing – Public Interest Litigation. People are daily told how the Supreme Court pulls up the government and that is very popular. But the general public do not know that the function of the Supreme Court is not limited to that.”
“I also think one should restrict the PILs to its original scope, which is meant for the persons who could not approach the Supreme Court. Whereas today, the PILs in the Supreme Court are filed for correcting the government in corruption matters and other ordinary, routine matters.”
However, at the same time, one needs to be aware of the pressure on the Supreme Court when other branches of the government have failed.
National Court of Appeal
Another radical reform suggested is the establishment of a national court of appeal.
“When the Constitution was first set up, we had not more than 5 or 6 high courts and those courts were also very high quality. Now unfortunately, the standards of high courts have also fallen. Now we have as many as 22 high courts, so naturally there is a strong temptation to correct governments and to correct the high courts.”
“Therefore, the only solution seems to be that you divert these matters which are not of national or Constitutional importance to another newly established National Appellate Tribunal. That’s the only way in which you can salvage this burden which is thrown on the Supreme Court.”
The collegium system was not authorised by the Constitution
The discussion veers to the NJAC, upon which the Supreme Court has recently reserved judgment.
“Well, one has to face the fact that the collegium system was not authorised by the Constitution, it is a creation of the Supreme Court itself. Over a period of time, it was realised that the selections are not at all transparent. The quality of persons being selected is not as good as it should be, some selections have been made out of favour, some judges have been refused to be selected for the Supreme Court out of prejudice, and some just taken by seniority. So overall, it is now admitted by almost everybody that the collegium system has failed.”
“We have now established the NJAC and its composition may not be the best, but we have to try and see that this system works. You can’t condemn it straight away, because the present system is not working and this new system, which we have adopted, has got some similarity to what is there in other countries. We have to wait and watch and give a chance.”
Andhyarujina was designated when he was thirty-eight.
“In those days, there was not a great glamour to be a senior. But today, everybody after a certain stage wants to apply to be a senior. In my case, Seervai asked me why I wasn’t becoming a senior. I told him that there are so many lawyers who are senior to me but who have not applied, so why should I. He said that doesn’t matter and he wrote to the Chief Justice of the Bombay High Court. The Chief Justice called me and said, “You are becoming a senior”.
He said that doesn’t matter and he wrote to the Chief Justice of the Bombay High Court. The Chief Justice called me and said, “You are becoming a senior”.
Talking about the existing practice of senior designations, he says,
“I myself have recommended one person and he was not immediately selected. Next time, he applied and he was selected. In the Bombay High Court, the practice is that all the judges must agree but some judges don’t know because you have not practiced in their court. It is very uncertain. In the Supreme Court of late, there are many persons who have applied, who are quite fit to be seniors, but they have not been selected. So there is a lot of uncertainty about it, which is regrettable.”
“I was fortunate enough to appear in big Constitutional cases with Mr. Seervai”
Ask him about the turning point in his career and he says,
“There was no turning point as such, but I was fortunate enough to appear in many big Constitutional cases with Mr. Seervai.”
“For example, Kesavananda Bharati, a case that went on for 66 days in the Supreme Court. You had giants appearing in that case. On one side, there was Mr. Palkhivala and Mr. Chagla. On the other side was Mr. Niren De and Mr. Seervai.
That case unfolded so much of law that even one of the judges on the bench, Justice Mathew said that for the first time, he came to know and learnt Constitutional Law! You learn a lot from being in a case of that magnitude. It was memorable because the background was political and that affected the conduct of both the lawyers and the judges.”
Advice to young lawyers
“There are three things that can make you successful in the profession.
One is hard work and industry. Secondly, you have to go beyond the text books and read other books and follow the habits and practices of eminent lawyers. Finally, luck plays a large part in our profession. It’s all very well saying this and that after 50 years, but for a young person it’s not easy and you have to strive.”
It’s all very well saying this and that after 50 years, but for a young person it’s not easy and you have to strive.
And there are some positives in the profession.
“A lawyer who is doing reasonably well has the advantage of being independent. You are not at the mercy of any boss. Independence is one the most important things in life.”
“Today, a high court judge has to retire at 62, and a Supreme Court judge at 65. Despite having all faculties intact and wanting to remain in practice, they have to retire. But if you are a lawyer, even after you cross 65, you are still very much in demand. That’s the great advantage of being in the profession.”