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Designated by the Delhi High Court as a Senior Advocate, Atul Nanda is currently serving as the Advocate General for the state of Punjab.
In this interview with Bar & Bench, Nanda talks about differences in the practices in Delhi and Punjab, steps that need to be taken to curb government litigation, the Navjot Singh Sidhu case, and more.
How were the early days of practice?
My father was a noted labour lawyer in Jalandhar, so it was only natural that I turned to the legal profession. Even before I formally received my law degree, as a student I would attend the trial courts in Jalandhar and watch proceedings in action as well as sit in on client conferences. This gave me an early insight into the working of trial work at the very lowest rung.
After I got my law degree in 1988, I started my practice directly in the Supreme Court in the Chambers of Shri SK Mehta, who was a noted and well-respected Advocate on Record of the Supreme Court.
What differences did you see between practice in Delhi and in Punjab?
Practices always differ based on the litigation that makes up that Bar. And the litigation differs on the geography of a place, its people and their approach. My personal experience has been that Delhi being the capital of the country, the seat of the Supreme Court and bearing the diversity of people as well as of political and social backgrounds, this automatically reflects and becomes part of your practice. Delhi is also the seat of many Tribunals. I find the practice in Delhi is often more commercial in nature, dealing with infrastructure, tenders, arbitration and the like.
On the other hand, the litigation in Punjab is more territorial and localized. Focus is often on inter se issues, land matters, matrimonial disputes and service litigation. Commercial law, company law matters, arbitration and the like are relatively limited in nature.
You were designated as Senior Advocate by the Delhi High Court in 2011.
I was at the time Standing Counsel for the Government of India in the Delhi High Court. I had the occasion to defend the government on several ticklish matters, including the 2G Spectrum case (which incidentally the government won in the High Court before the matter travelled to the Supreme Court), the initial cases under the Prevention of Money Laundering Act, jurisdiction of the Armed Forces Tribunal, and the like. Cases of such nature not only lent me rich experience, but also enabled my designation as a Senior Advocate.
What is your take on the current system of Senior designations?
I would welcome any move which lends transparency and order to any system. But I do not think there is any major material change. Yes, certain criteria have been set and there is now a Committee in place. But this is recommendatory. The designation of a Senior Advocate is still subject to a vote at the Full Court meeting, as it should be.
The Punjab & Haryana High Court recently amended the criteria for designation as Senior Advocates by allowing lawyers from lower courts as well to apply. Do you think this is a good move?
To my mind, while the zone of consideration was largely lawyers practicing in the High Court; there was never any embargo in considering lawyers from lower courts for designation as Senior Advocates. Speaking of Punjab, Harbhajan Singh Sandhu was a lawyer whose practice was largely based in the lower courts but was designated as a Senior Advocate of the High Court of Punjab & Haryana. Another example is that of the criminal lawyer Sardar Tirath Singh who, to my recollection had very little practice in the High Court but was still designated as Senior Advocate.
You were appointed Advocate General last year. How has the experience been thus far?
Assumption of a constitutional office is always a very enriching and memorable experience. Although, for a while I was counsel for Government of India, my practice has largely been a private one. Being Advocate General bears a marked departure from private practice. While as private counsel, your performance is subject to client satisfaction and your approach in court is guided by your client’s commercial needs, as an Advocate General you have an opportunity to do so much more.
One can effect a proper litigation policy, address issues which have state-wide ramifications, and appear in matters which can help evolve jurisprudential concepts. The entire state, in that sense, is your client. On the other hand, your word as Advocate General is taken as the final statement by the Court, and this casts a supreme duty and responsibility to the Court for this faith which is vested in you. It is a wide platform and a broad canvas and I am very grateful, professionally as well as personally, for having had the opportunity to hold this office.
Punjab was the first state to separate law & order duties from investigation functions of the police. How has that helped conviction rates?
This is a very recent phenomenon and there is little data, at present, to ascertain the effect of this move on conviction rates.
You had been quoted as saying that the government had planned to review the Advocates Welfare Fund for lawyers. How has that initiative progressed?
The Advocate’s Welfare Fund is presently in the nature of an ex gratia compensatory scheme where aid/compensation is disbursed on a case to case basis. This means the Fund in dipping into its corpus/capital base every time a payment is made. Also, such payments are case-based. I wish to convert this into an insurance cover-cum-social security scheme which would not only provide automatic life and medical insurance cover, but also ensure coverage of every member irrespective of the need for an application and then consideration and approval of such application, as is the present process.
Needless to say, this is a complete re-haul of a system which has been in place for a while and which would require the government as well as the Advocates to work closely at every stage of this process.
The appointment of law officers for the Punjab government last year raised a furore after it was revealed that sons and daughters of judges and politicians were picked. Would you care to comment on the same?
The furore to my mind, was rather pointless. Some of these young lawyers have been on the Punjab panel for several years and they were merely not deleted from the list this time around. So, I don’t see the objection to that. Even otherwise, I think such controversy is most unfortunate. We speak of nepotism and favoritism, but what about the other way around? Does a competent lawyer have to suffer merely because he or she is the son or daughter of a judge or a politician? Yes, there were kin of judges on this panel, but I have worked with them as fellow lawyers and colleagues. They are intelligent, responsible and come prepared to court and I am proud that they are part of my team.
The Central and State governments are responsible for most of the litigation in our courts. As someone who has witnessed government litigation first hand, what do you think needs to be done to curb this?
This is being addressed in the Litigation Policy being formulated for the State of Punjab. Under the guidance of the High Court of Punjab & Haryana, the States of Punjab, Haryana and the UT Administration are attempting a joint litigation policy on this front. Litigation can be curbed at various stages and the draft policy deals with this. Obviously, if a citizen’s issues are addressed before hand – at the stage of sending of a notice or representation – this would prevent the matter from getting to Court in the first place.
Even after the matter is in Court, many a times a solution can be worked out and issues addressed. Unfortunately, in such cases, the paralysis of sub judice sets in when the officer adopts a hands-off approach to anything pending in Court. This needs to change.
Also, matters which do not really need to be contested unless there is an issue of law or one which will have larger ramifications – such as pensionary benefits, a solitary appointment of a teacher etc – are matters which need not go to Court or even remain pending. There are also several cases which cover the same issue, that have already been decided by some court in some judgment and one has to just cluster such cases and dispose them off. All of such cases can be weeded out. A drop in State litigation will automatically have an impact on pendency.
In your experience, do government departments take the advice of law officers to not pursue frivolous litigation?
The relationship between a law officer and a government department is no different from any lawyer and client. Advice may be appropriate, well meaning and sound but even the best advice is only recommendatory in nature and not binding. At the end of the day, it is the prerogative of the client whether or not to institute or continue litigation. I do not think the government consciously adopts a policy of pursuing frivolous litigation. A lot of such litigation is inherited over a period of time and as I said before, once a matter is in Court, then it often stays there until decided or dismissed.
The move to expand the Cabinet of the state government was recently challenged in the High Court. Does this move stand the test of legality?
The expansion of the Cabinet has indeed been challenged and notice was issued by the High Court of Punjab & Haryana. I have no manner of doubt that the action of the government is valid in law. We, of course, will submit our position in Court and will always be subject to the courts orders and interpretation on the matter.
The state government is also mooting an Ordinance to appoint legislative secretaries to appoint MLAs. What are the potential roadblocks to this move, and how do you plan to work around them?
The issue of parliamentary secretaries has been legally tested by several High Courts in the country as well as the Supreme Court. I do not see these as roadblocks but valid concerns raised by the Courts on the possible abuse of legislative power. These concerns have to be borne in mind and appropriately worded legislation needs to be drafted so that an effective balance is struck between the political needs of the hour as well as the legal position now definitively laid down by the Courts.
The state government recently took the stand in the Supreme Court that its own Minister, Navjot Singh Sidhu was rightly convicted by the High Court in the murder case. This is a refreshing change from state governments going to any lengths to defend its minsters. What prompted the same?
I would give a lot of credit for this to Minister Navjot Singh Sidhu himself. He is a personal friend of mine and his son is a part of my legal team. He could have used this as well as his position as a Minister to his benefit. But despite such proximity, not once did he broach the subject with me in any attempt to influence the stand of the State. He has fought this battle like any other litigant.
While I personally wish him well, the government of course was prosecuting the case, was required to stick to its legal position which it has taken for the past 30 years, and rightly did so. The matter has travelled from the trial court, the High Court and now the Supreme Court has reserved judgment (at the time of this interview). There was no question of a volte face. That would have been unfair, wrong and a travesty of justice.
Editor’s note: Sidhu has since been acquitted by the Supreme Court.
What have been the most memorable cases you have argued in your career?
There are one too many. But if I had to pick the most memorable it would have to be the case of the present Chief Minister, Captain Amarinder Singh being expelled from the Punjab Vidhan Sabha. There was no legal precedent for the facts of the case and I found myself having to acquire a library on Parliamentary Privilege from various corners of the Commonwealth. I had the occasion of debating the issues of the matter with legal luminaries such as Mr. T Andhyarujina, Mr. Gopal Subramanium, (now Justice) Uday Lalit and of course, the one and only Mr. K Parasaran.
It was a matter which was first mooted before a Division Bench of the High Court of Punjab & Haryana and made its way to the Constitution Bench, where we won 5-0. It was a true learning experience and a case that now finds place in textbooks on the matter.