The #BombaySeniors: In Conversation with Senior Counsel Iqbal Chagla (Part II)

In the second part of the interview (read Part I here), Iqbal Chagla talks about collegium system, corruption in judiciary, the Bombay Bar Association and the state of the profession..How have you seen the Supreme Court evolve over the years?.The first time I went to the Supreme Court was with Bhabha’s junior. This was the time when the paper book was printed. We had to get special permission to allow cyclostyling. Otherwise it was a lovely printed book with a statement of the case, [the] second part would be law [and then] legal submissions. This was strictly followed. Matters came up on a certificate, SLPs were few. There were no particular “days”. It would be in the morning for 15-20 minutes, maximum half an hour and then final hearings going on from day to day..It was most satisfactory. That was how the Supreme Court was and how it was intended to be. There was a Constitutional court to decide Constitutional matters and commercial matters used to come up on a certificate..What do you have to say about the quality of the judges from then to now and in between?.I think it will be unfair to make comparisons because there were both mediocre judges and brilliant judges at that time as there are today. But today, the problem is that there are great quality judges, but they are not being allowed to lay down the law the way it ought to be..Their time is so taken up with these SLPs, non-miscellaneous matters etc. When do judges get to reflect? When do they get the time to write judgments? It is a tremendous burden on them, which is very unfortunate, because it is the highest court. It is supposed to lay down the law in a manner in which it is not just deciding the matter, but giving it much thought and input..What are your thoughts on the judicial appointments in the light of the NJAC being struck down? .I was completely opposed to the collegium system as it has been. In fact, I was one of the first petitioners in this matter. For 24 hours, it was Iqbal Chagla v. UOI, but then SP Gupta came and said that his matter was the first one. So it became SP Gupta v. UOI. We had filed the petition in Bombay, which got transferred to the Supreme Court. After the first judge’s case and the second judge’s case, ultimately the collegium system came about, which, in a manner of speaking, is the Constitution which has been rewritten by the judiciary to appoint judges..An Australian judge Michael Kirby said that, “How on earth can you trust your judges to appoint judges? We would not dream of doing a thing like that.” I told him that we had a background, what had happened during the emergency, pre-emergency. He said, “Whatever that may be. This is the biggest mistake that you are making. You can’t just trust judges to appoint judges.” In a manner of speaking, he is not wrong. But equally, today, I would not trust the executive..What is the solution?.The solution is that there should be a collegium, but not just a collegium of judges. It should be a collegium which introduces other people as well, so that you have a little balance. It would include the executive, members of parliament, eminent jurists etc so that it is more broad-based. I think the NJAC was a disaster..You were the president of the Bombay High Court Bar Association three times – how do you think the bar has changed?.I think in the nine years that I was there, it was a very proactive association. We took up all sorts of causes, including some very unpleasant ones, like moving resolutions against corrupt judges. We passed resolutions expressing “complete lack of confidence” against four judges and asked them to step down or face a boycott..My colleagues told me that this is clear contempt. There is no defence, no justification. I said, I agree. But at the same time, I do believe that when posterity asks the question, what were you doing when your judiciary was going downhill? Did you just sit back, earn your fee and do nothing? The answer to that question should be, yes, we did do something..There is a curious sequel to that. I had gone to the Supreme Court for a matter, and I called the CJI’s Secretary and said that I wanted to speak to the CJI. He straightaway said yes and asked me to come to his residence. So I went there and I was sitting in his drawing room..He entered with a very grim face and asked me, “Mr. Chagla, first question, do you intend to do this again?” I said, “Good Lord, no Chief Justice. It was a one-time exercise.”.CJI said, “then may I congratulate you. What you did really worried us.”.Fortunately, we had Sabyasachi Mukharji as the Chief Justice of India. Anybody else, I would have been put behind bars for contempt. He said that they had made all inquiries and he knew that the Bombay Bar was a very responsible Bar, and the judges were all guilty as charged. So it was a good thing. He said that their fear was that there would be a domino effect all over India with Bar associations, for all the wrong reasons, passing [similar] resolutions. But that did not happen, fortunately..I think now the Bombay Bar is less proactive, certainly in matters which are unpleasant. There is a desire today to please the judges all the time and not to displease anybody. I had to move a resolution again after 5 years against the sitting Chief Justice. That was not very pleasant. But then our job is not supposed to be pleasant, is it?.Thoughts on trial by media? .I don’t think it affects the high court as much as it affects the trial courts. Media has exceeded the bounds of what the media should be doing. It is totally irresponsible. I’ll give you an instance. In this Maggi noodles case, Arnab Goswami came on television with packets of the noodles and said that they have been poisoning our children for the last thirty years. The sales of Maggi noodles fell tremendously and they lost the market share. It was done irresponsibly..The Maggi case was still a commercial matter. But in a murder trial, where someone is accused of murder, how can you try them on television? I think the judiciary should come down on this. They should not permit this..Do you think the state of the profession has changed over the years? .I think arguments are getting longer and longer, pleadings are getting longer and longer, and interminable matters take the time which they ought not to take. Judges sometimes become very tolerant. Some abuse this tolerance and argue far more than they ought to be doing..There was a time when judges used to say “Alright, I understand your point, what is your next point?” I think that also led to early disposal of matters. It is partly the tolerance of the judges and the abuse of it by the counsel. No matter how tolerant the judges may be, counsel should have a sense of balance..What do you think needs to be done to curb corruption in the judiciary?.As far as high courts are concerned, you have to ensure that the appointments that you are making are good appointments, people have a perfectly good reputation. But having said that, if ultimately people fall prey to temptation, then what do you do?.Any thoughts for people joining the profession?.I think it is a very challenging profession. The heat and dust of battle: I think nothing compares to that. It is a great temptation to go straight to those firms which are paying fabulous amounts, which were unthinkable for us at that time. We didn’t get a penny, whether from our seniors or from the profession. But at the end of the day, that does not really compare with the heat and dust of battle. That is where all the excitement is..There is another unfortunate thing. At our time, there were trial actions which would go on from day to day. That was really the excitement. So, you began your trial and started your cross-examination in the evening, prepared notes of evidence, got ready for the next day, and that would go on from day to day. It only ended when the evidence was over. Time was taken for closing arguments. Today, nothing happens from day to day, certainly not in trials..But even without trial action, in arguments, writ petitions, there is that element of uncertainty where you have to persuade a judge regarding a particular point of view and the adversary does precisely the converse. That is the excitement and the challenge, and I would not trade it for anything else..What do you consider as the high points of your career?.I think the matters which I did pro bono gave me a lot of satisfaction, like Arun Bhatia’s case, for which people had a candle light vigil. And I must say the Bombay High Court trumped when the Chief Minister’s affidavit was disbelieved, which I think was a great thing at the time..The Mill Lands case, in which I think I had the greatest elation and the greatest depression, having succeeded in the High Court and lost in the Supreme Court. And Bombay is today what it is, destroyed as a city, which could have been very different had the High Court judgement been upheld..Your son Riyaz seems to have taken after his grandfather and is on the Bench now. What are your thoughts on that?.I pride myself on the fact that I am the son of a judge and father of a judge..What were your feelings when you saw him being sworn in?.Wonderful. Very proud. I went to his court the first day, saw him sitting on the Bench. It was great feeling..Would you like to say anything on the Tata – Cyrus Mistry dispute?.No comment on that..What would you say about Cyrus Mistry – the person?.I am biased on that but surely, he is a wonderful man, a wonderful human being. I once said that I was determined to hate anybody my daughter wanted to marry, until Cyrus came along. It was impossible not to like him, [to] love him. I think that sums up the kind of person that he is..Your thoughts on the legacy that you have built and would leave behind?.I am not sure that I have built any legacy at all. I haven’t. But anyway I think I have spent more than 50 years in this profession and if at the end of the day, somebody has a kind word to say about me, I’ll feel that the years were well spent..What has been your passion apart from law?.My passions are literature, photography, and golf at the weekend. One thing I feel is that law has taken me away from literature. Too much time is spent on reading bad stuff, like pleadings and bad judgments.