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Senior Advocate BV Acharya has been appointed Advocate General for Karnataka six times, and was the Special Public Prosecutor in the disproportionate assets case against Tamil Nadu Chief Minister Jayalalitha. In this interview with Bar & Bench, the senior counsel speaks of his days at the Mangalore Bar, the challenges of being Advocate General and why he feels that the RTI Act is being misused.
Bar & Bench: Could you tell us a bit about your initial years?
BV Acharya: I am the son of a teacher so initially, I used to think that I too would become a teacher. But then a very good friend of mine who later became a lawyer in Bombay, Vishwanath Rao, persuaded me to join law. And he predicted that I would be very successful if I became a lawyer. My parents agreed and so I went from Mangalore to Madras to study at the Madras Law College. I completed my law in 1956.
So I enrolled before the Mysore High Court in August 1957. And from 1957 to 1972 I practiced in the trial courts of Mangalore. Initially, I worked in the chambers of one B.Gangadhar Das who was the district government pleader then. In 1961, I became an Additional Public Prosecutor and I was there for four years. Then in 1967, I was appointed District government advocate and I continued for five years. After that, in 1972 I shifted to Bangalore.
B&B: And what prompted you to shift to Bangalore?
BVA: Oh a friend of mine came to Bangalore and he painted a very rosy picture, saying that the prospects are much better there (smiles). So I decided to come to Bangalore and that was my good luck.
By and large, after 1972, it was mostly a practice in the Karnataka High Court or the Supreme Court.
B&B: The appointment of Advocate General has become a fairly political process. Was it the same in your times?
BVA: I was not appointed on the basis of any political consideration; I have been appointed by all the political parties. The first and second stints were under the Congress party, the third and fourth were under the President’s Rule, and the last stint was under the BJP government of Sadananda Gowda. The moment he became CM, the very next day he persuaded me to accept the post.
B&B: What is your opinion of the role of the AG?
BVA: It is a very tough job to advise the government. In fact, it is generally thought that the work of an Advocate General is only in court. That is not the case. More so, the AG has to advise the government. If the government strictly follows that advice, it can avoid a lot of litigation.
B&B: But does the government listen to your opinion?
BVA: When I was AG, if my opinion is not accepted, I would not consider continuing [in the post] even for a day. But there may be some who wish to continue to be in office whether the government accepts their opinion or not. In my case, there is no instance where my opinion was not accepted by the government. I will be the last person to continue holding that post if the government were to not accept my opinion. After all by becoming the Advocate General, I am committing a great sacrifice –
BVA: Just look at the matter of finance – the fee you get in one case in private practice, that fee you won’t get even in two months as Advocate General. But you accept it for two reasons – one, it is a respectable position, a constitutional post, and second is that you are respected in the Bar and you have a duty to do some public service.
B&B: There is a petition pending in the Delhi High Court that claims communication between the AG’s office and the government should be accessible via the RTI Act.
BVA: I very strongly feel that it should not be. You see, you give your opinion in confidence so that nobody will know what it is. It is only your advise. Just like the relationship between a client and a lawyer or a patient and a doctor.
When I dictate an opinion, I must have the freedom to know that this will not be divulged to anybody. If tomorrow, you come to know of it, then because of my friendship I might even try to dilute [the opinion]. The crux of the matter, according to me, is that when you give an opinion you must have the confidence that it is a confident matter between you and the client. It should not become public.
B&B: But as a constitutional post, surely your communications are open to public scrutiny?
BVA: According to me, no. This must be an exception. In fact, please understand that according to me, this RTI Act has played havoc in governance. I am against it.
BVA: I know of many people who use the RTI Act as provocation. Apply under the RTI Act and then blackmail [people]. So many people are doing it. And the problem is that some of the applications you receive, you cant do any other work than reply to these applications! They will say one particular case has suffered from fifty adjournments, please let me know from first date to last date who are all the government advocates who have appeared, what did they do, what is the progress of the case etc. Please provide the information in one week otherwise I will file an appeal.
The RTI Act is being misused according to me. Maybe in a few cases, transparency is actually sought but in most of the cases, my sincere opinion is that it is a provision which is being misused.
B&B: When you handle such high profile matters, are there any special steps that you take?
BVA: No so far as I am concerned, I have dealt with them the same way I have dealt any other case. Absolutely no special steps. Even as a Special Public Prosecutor in the case against (Chief Minister) Jayalalitha I even told the government that I don’t want any security. I did not requisition even the services of one constable. I have used my own car to and from court. I charged my legal fees but barring that I handled it like any other case.
B&B: But eventually you resigned from that post of Special Public Prosecutor –
BVA: Well that case was a peculiar case. You see, there the Chief Minister in office is the accused. And the prosecuting agency was the police which was under her. You see so long as the DMK government was there, I was getting assistance from the police who had filed the chargesheet. But once there is a change in government and she became the Chief Minister, it is too much even on my part to expect full support from the police. To act against their supreme leader and the Chief Minister of the State – it was a very delicate situation.
B&B: Over the last five-six decades, what are the changes you have observed with respect to the Bench?
BVA: The most important change that I have observed is that when I first started practicing in Bangalore, almost any case which was listed for hearing would be taken up, both sides would be heard and immediately the judgment is dictated. Unless it is a very heavy matter, then the judgment would be reserved. And very rarely there used to be an adjournment say for producing a document or investigating a particular point of law. That was an exception.
But now it is not so; almost every case it is heard for some time, then adjourned and then adjourned again. You will rarely find one case where both parties are heard and immediately the judgment is pronounced. This is the fundamental difference.
B&B: But does the fault lie with the Bench or does the Bar also have a role to play?
BVA: Essentially it is the Bench. The Bar may also contribute. But you will see that if a judge is a strong judge, the lawyer will not seek adjournment; he hesitates to even make a request. But if you know that the judge is very liberal, you will also go on asking for adjournments. Ultimately the power is with the judge, there is no point in blaming the lawyer for adjournments.
According to me, ninety per cent of the problems will be solved if you appoint judges who are competent. By that I don’t mean [they should have] lots of legal knowledge or anything of that sort. He must have the capacity to decide. The qualities required for a lawyer are entirely different from the qualities required for a judge. So a jduge must have the capacity to decide. That is why many judges who waver are unable to decide and end up adjourning the matter.
B&B: Were you ever interested in becoming a judge?
BVA: I was recommended but then for more than 8-9 months it did not materialize. And it was a most embarrassing position for me – my friends would not send me briefs because tomorrow I might become a judge. And though this was supposed to be kept confidential, every Tom, Dick and Harry knew! In fact in my case, the Chief Justice offered me the position and told me to keep it very confidential. The next morning when I went to Court, a lawyer asked me, “Oh your name has been suggested….” I said, “Err, no I don’t know” and he immediately said, “No you are lying. I came to know from the Governors office.” He was able to get the names of all the judges. So he looks at me as if I am deliberately deceiving him. But I have to keep my word with the Chief Justice.
And when I was offered, I would have had seven and a half years of service. But then more than 8 months lapsed and it did not materilaise. I gave a letter withdrawing my consent. I said that I would be a lawyer and forget about this judgeship.
B&B: So you must have seen the process of appointment first hand. What do you think of the present system of selection?
BVA: The present collegium system, according to me, has not produced the desired result. The whole object of the Second Judges case was to eliminate Executive interference. It was a wrong judgment where the Supreme Court has deprived the Executive of its role and abrogated to itself all the power of appointing judges. This should not have been done.
In fact I argued that case before Justice Verma who later on admitted that the judgment had not served the purpose for which the judgment had been written. They wanted political interference to be excluded but unfortunately things have become worse.
B&B: Do you think that having a Judicial Appointment Commission is feasible?
BVA: Certainly. Why not? In fact before the Supreme Court in the Second Judges case, I had said that the delay in judicial appointments occurs because there are six or seven constitutional authorities involved. You go on writing to and fro. Instead, I suggested, that instead of exchanging names and the views of each functionary, they should all meet and finalize it. This is the quickest way to reach a decision.
B&B: Do you think that the new appointment procedure, whatever it is, should be made public?
BVA: According to me, it should be kept secret. Any private information that you have got about the character of a person or about his antecedents…see if he is not appointed, then it will be casting unnecessary stigma on such a person. I definitely think there should be extremely strict scrutiny though.
B&B: Coming back to your practice, you are known as a lawyer who never raises his voice in court. Was that a practice you consciously developed?
BVA: Aggressiveness is something that is unknown to me (laughs). See according to me, the function of a lawyer is to persuade a judge. By being aggressive… it might work with some judges but that is very rare. Ninety per cent of the judges do not like aggression; persuasiveness is alright but not aggression. You need to balance the two, and you learn this through practice.
B&B: What do you think of the institution of Senior Advocates?
BVA: It is a good institution with a rider – the Senior Advocates once designated should strictly stick to the rules that govern them. They should not accept a brief directly from a client, they should not have contact directly with a client, not deal with routine matters such as writing letters, applying for certified copies etc. The Senior Advocate should be away from all these things. A Senior Advocate concentrates only on a study of the case and presenting the case in the best possible manner before the judge.
But unfortunately, there may be very few who though designated as Senior Advocates, virtually act as ordinary advocates. The only difference is that they don’t sign vakalatnamas but get it signed by somebody else. A Senior Advocate should only plead, not act; [otherwise] the very object of designation is lost.
B&B: What is your opinion on this practice of getting opinions from former judges?
BVA: I personally feel that they should never give their opinions. In fact J. Venkatachaliah used to say, “My opinion is not for sale”. What some people do, is send a representation to the government which has an opinion of a former Chief Justice of India. The next day, they file a writ petition saying that they made a representation, which included the opinion of so-and-so. Indirectly, the judge will know that the opinion has been given by a former CJI. That is not proper. According to me, the rule that Supreme Court judges should not practice after they retire should include the practice of giving legal opinions as well.
B&B: You were a member of the Law Commission of India. Do you think that the Commission remains a relevant institution?
BVA: Well, it is relevant provided the government gives due importance to it and accepts the recommendations made by the Commission. In reality, this has not happened so the fault lies with the government and not with the Commission itself.
B&B: What advice would you give to those starting out in the profession?
BVA: The first and foremost advice is to maintain absolute ethics; don’t go after money in the initial stage itself. You see, there are many who indulge in champerty, which is totally prohibited. The craze to make money at the initial stage will spoil everything.
As you know, it is a service-oriented profession. [It is] not a profession where you make money at any cost; making money is only secondary. Therefore, he should not think that when I start practice, within 3 years I should purchase a Mercedes Benz. He should stick to his ethics and earn the goodwill of the judiciary.
Your reputation is most important. A reputation that you will tell the points correctly, that you will not mislead the court – that sort of confidence which a judge develops in you will be a great asset in the years to come.