Conversation with Senior Counsel Rajani Iyer

In 2006, after nearly three decades in the legal profession, Rajani Iyer was designated as Senior Counsel by the Bombay High Court. In this interview with Anuj Agrawal, she discusses the reasons behind her decision to study law, the joys of litigation, why she is grateful that she was not blessed with looks “that could turn heads” and what is ailing the legal profession today..Bar & Bench: Could you tell us a bit about your decision to join the legal profession?.Rajani Iyer: My father was a gentleman who practiced criminal law. He was a junior under Mr. KM Munshi after having been his personal assistant. In fact, he joined as part of the office staff and was then promoted to PA because, I guess, Mr.Munshi found something in my father. My father traveled with him when Mr. Munshi was in Delhi in the Cabinet. But my father did not like Delhi and so decided to come back and pursue his practice here. He came back and joined Haribhai Desai, Ashok Desai’s father. After a particular point in time he moved onto practicing economic criminal law..B&B: Was there a lot of legal discussions in the household? Say at the dinner table?.RI: I was too young when all this was happening. I was a reluctant entrant into law because I wanted to teach. I taught economics for a couple of years at various colleges and at my school, Queen Mary..B&B: And how did you end up in law?.RI: Then two things happened: one, the economics of teaching economics with a take home pay of 300 rupees a month meant I was still dependent on my parents and two, the Emergency happened in 1975. So I wanted to know the hows and whys about the Allahabad judgment [in Raj Narain] which led to all this. So I decided to do law and that is how I became a law student and have remained one since then..B&B: What were your years at the Government Law College like?.RI: Well, I came with a “slight” tag of a reputation of being a rebel from my MA campus days where we had organized ourselves into a union and asked for better facilities at the Kalina campus. We had just shifted to the new campus without there being adequate infrastructure available to the students. Some of us in fact took the extreme step of locking ourselves inside the university at the Fort campus for a day and not allowing the staff and others to come into the campus. Now if you ask me, I can’t even remember who was the Vice Chancellor or Registrar then..B&B: And what was the learning experience at GLC like?.RI: At GLC we still had semblance of a college. We did have full time professors. It was a college, it wasn’t a market place for potential employers to come or [one where] students were preparing themselves for some employment exam, law firm or something like that. It was all about studying law, enjoying law and enjoying being a student..Fortunately, we had not yet gotten into the time when we started thinking, living, dreaming law and we still enjoyed being students- that was the essential difference between then and now as far as the student is concerned..B&B: So you graduated from GLC in 1978. What next?.RI: I did my solicitors and joined Ashok Desai’s chamber. I was told by my father not to expect to earn a single paisa for the next ten years, but that’s because he spoke about his experience from 1940. That was not the case for me. The profession opened its arms to me; as an individual I had no problem either for being a lady or for wanting to go into litigation..B&B: Surely it must have helped that you came from a family of lawyers?.RI: The goodwill my father left, because he had passed on by then, was tremendous. Everybody acknowledged me as his daughter. I was lucky because I joined Ashok bhai. My first exposure very soon after I joined him was the Antulay case. A wonderful gesture on the part of Ashok bhai was to publicly acknowledge what his juniors (Navroz Seervai and myself) were doing. So that helped..Otherwise it was a one-man show with Ashok bhai: he would carry the entire burden on his shoulders. But that public gaze and that opportunity helped. And I guess the schooling that my parents gave me also helped – the command of the English language, the ability to communicate which was honed because I was teaching for around five years before I joined the profession, not being afraid to voice my views, being able to articulate well – all these were facts which, I guess, helped me through. Being a lady didn’t at all detract from this. As I have often said in the past, I was blessed with not having looks which turned heads..B&B: It is interesting that you say this. In one of your interviews you have said, “I am one of the fortunate few who haven’t faced the problem [of sexual harassment] for a number of reasons……perhaps also because I am not attractive in the sexual sense and that I joined the profession when I was not that young Comments?.RI: Well perhaps those were not the exact words, which I used, but it is the same thought. Because why wouldn’t it be demeaning for a lady lawyer to be told “It’s your looks which have got you where you are”?.It is from that angle that I said that nobody should be made to suffer these sorts of comments. Unfortunately there are a couple of us in the profession who make these disparaging remarks such as, “She has got to where she is because of her looks” or “She got an order because she was looking pretty”..Why should we demean a professional that way? Would you say that of a gentleman?.B&B: What is your reaction to recent reports about a judge in the Karnataka High Court making disparaging remarks about women in open court? Do you think this is a one-off incident or do you think this is more common than is reported?.RI: As far as [such events] are concerned, one must ask that from where do we get judges? The society..You will always have features that you find prevalent amongst members of the society and therefore prevalent amongst members who adorn our Benches. Whom do you blame? The society or the judges?.B&B: But surely a judge is expected to be above biases and prejudices?.RI: Now, that is where my contentions come in. Whilst being appointed as judges what is the scrutiny that they face? What is the process through which they are put?.They are invited by sitting judges because they are seen arguing in the court, their demeanor towards judges, litigants and other lawyers is seen etc. I don’t know whether apart from a physical examination or a police cross check, there is any other procedure that they are required to go through. Perhaps this is something that has to be looked at again..B&B: But are you surprised on hearing such reports?.RI: This is something that I am unhappy about. Am I surprised about it? No. I am not surprised. We face such persons wherever we go. Not necessarily only in Karnataka, it is an across-the-board position..B&B: And what do you think is the way forward?.RI: Threefold. A person who has borne the brunt of such a remark must have the courage to make a protest about it immediately, in court, on hearing such a remark. There were times when some judges made such remarks to lawyers in Bombay and when the lawyers protested, the judges had the grace to say that they had stepped out of line..Once the protest is made and there is no response, then it is for the Bar to which that particular advocate belongs to take it up..In the event it is not taken up with the judge concerned, it is necessary to take this to the Chief Justice who is today the Administrative Judge as well. I think these are the three levels at which we can address these sorts of incidence happened and prevent it from recurring..B&B: You are not afraid of taking on the judiciary are you? You were signatory to a letter written to the Chief Justice of India protesting the transfer of two Bombay High Court judges..RI: If it is required to be done I will do it. I am basically against the policy of transfer. I am also against the policy of transfer of a Chief Justice. Some people argue that they need a Chief Justice from outside the city and this makes no sense to me. The Chief Justice is an administrative head, he has to know the local judiciary, he has to know the subordinate judiciary, he has to know the local language, he has to know the political nexus in various areas etc..Let me give you an example, say a Judge from Maharashtra is transferred to Punjab. He doesn’t know the language, he doesn’t know anything about Punjab and you expect him to be the administrative head of the entire subordinate and High Court judiciary?.B&B: But surely transfer is an acceptable condition of service? Also can’t one argue that if one were to eventually become a Supreme Court judge then one should have some experience in different parts of the country?.RI: No, when I say I am against the policy of transfer, I mean that if I am appointed as a judge and I am agreeable to the transfer then it is fine. But the problem is when there is an opposition to a person wanting to shift out..The following is the gist of a conversation that was had between one of our pusine [Bombay] High Court judges and the then-Chief Justice:.Say someone does not want to become a Supreme Court judge. Then why should they impose transfer on him merely to have the experience required to become a Supreme Court judge? Once you do accept the position of a High Court judge why should you think in terms of opportunities of promotion? [A High Court judgeship] is a constitutional post, which has certain responsibilities. You are not in it for promotions..B&B: In principle, this sounds fantastic but in practice do you see that happening? Even at the Supreme Court level, there are reports of judges looking for post-retirement postings, judicial commissions, arbitration matters etc.RI: Why do they do that? Let me ask you – why would they do that? Today, look at the options that an Army general has after his retirement. What can he fall back on?.What is the percentage of money that we, as a country, spend on education and on the administration of law? And yet we expect that something that is looked upon by the people as the last frontier should be impeccable?.How does that work and how do you expect it to work? I am very agitated about this. I am. Because we are losing out so many good persons who would accept judgeship but for this..B&B: Coming back to your life. You started your career with one of the most hi-profile lawyers –.RI: One of the most lovable, humane individuals..B&B: What was working under Ashok Desai like?.RI: Fun and games! [I had a] lovely time. He was one person who was very happy if a conference was cancelled or was told that there was going to be someone else assisting him, hopefully someone senior to him! He would always have a joke on his lips..B&B: What was the relation between a junior and a senior lawyer in those days?.RI: You see….it was Ashok bhai. It wasn’t “Sir”. Ever. I knew Ashok bhai because we had gone on picnics together and stuff like that. So it was always a wonderful, homely relationship that we had. I am one of the few persons who can proudly say that I have been blessed..B&B: The common perception is that litigation is a closely-knit profession – .RI: No. As far as the profession is concerned, I only knew Ashok bhai. I didn’t know anybody else. The profession welcomed me with open arms, there was no problem in going up to an Anil [Divan] or a Fali [Nariman] and saying “Sir , this is what happened.”. They didn’t turn around and say, “Who the heck are you?” No, not at all..It was one of the friendliest places to be in. It was one of those places where there was no reason why a senior sitting next to you in court would not tug your gown and say, “Look this is what you should be doing”. That is the tradition we have had at the Bombay Bar and that is the tradition I have benefited from..So it isn’t because it was me, it was because the Bombay Bar was what it was. Of course, it has changed now because of the element of competition, which has willy nilly come into the picture for a large number of juniors..B&B: So in 1978, you started working with Ashok Desai and worked on several high profile matters..RI: The first big break was the Antulay case. Most of the work was done in Ashok bhai’s house, between 7 and 12 at night. Most of the work was done by Ashok bhai. He would give us homework, which we did and reported back to him..The second big stepping-stone I can think of was doing witness action (examination in chief and cross examination) with a gentleman called Piyush Amin. This was in a civil court in Baroda where the Maharaja of Baroda was taken to court in respect of the palace grounds, which a builder had allegedly purchased by a builder. We were representing the Maharaja of Baroda (through his mother) who had died intestate..B&B: You have also done a fair bit of arbitration. What is your opinion about the efficacy of Alternate Dispute Resolution (ADR) methods?.RI: Yes. ADR today is essentially limited to, in the popular mindset, arbitrations. It does not, at all, include mediations. It is not popular enough which is really unfortunate..I passionately believe in mediation. For an individual, I think litigation should be a no- no except as a last resort. We have to inculcate amongst our law students, the need and the positive possibilities of mediation even while they are being trained to be lawyers. They have to ask, at that first stage when someone comes to them with a problem, that why can’t we resolve the issue through mediation..The problem for me is that I love cross-examining people. After I was in the profession for a couple of years, I had an occasion to interact with Mr. Ram Jethmalani. He was also a close friend of my fathers and when I told him, “Ram I have to learn cross examination from you” he replied, “Mere paas se kya sikhti hai? (What will you learn from me?) Your father was a far better cross examiner!” It was a wonderful insight into who my father had been because I never had an opportunity of knowing that. So now when I say I love cross-examination, perhaps I have inherited it from him..B&B: If you could share one lesson you have learnt with respect to cross-examination, what would it be?.RI: I remember one case where I got a fantastic answer in the course of a cross- examination. But then I asked that one extra question which I should not have. I thought I knew the answer but I obviously didn’t and the answer was not in the interest of my client. If I had not asked that question, then the impact would be much more..This made me realize something else that Ram had once said that the one more question that you want to ask, you shouldn’t ask. There was a murder case going on. It related to one gentleman going to chemist shop and purchasing a medicine, which was otherwise capable of being used as poison. The salesperson from the chemist shop was called and was told that when hundreds of people must have been coming into the shop how was he able to remember this one gentleman and this gentleman’s purchase. So in answer to one of the questions, the chemist replied, “He was the only person to come to our shop that day”..That was the one question that ought not to have been asked because everything until then was going hunky dory for the defense..B&B: Coming back to your career. In 2006, you were designated as senior counsel. How did that feel?.RI: Well, there were a couple of us who had put in the required number of years. Some of us were asked why we didn’t apply to become seniors. Two or three of us just held back until we were asked by one or two judges to apply because I think that is the way it should have been done. Being asked by a judge is more important than having become a senior. That was far more important to me..Two, at an individual level it is an acknowledgement of the profession – they see something in you. At the personal level, it has made no changes. I am what I was. I continue marking what I used to and I continue doing the kind of work that I have been doing. There has been no change in that sense..I still represent whoever I want to. I still do not represent whoever I do not want to. There has been no change in how other lawyers view me. They still interact with me, I hope and think, in the same manner. I have become, perhaps, more short tempered in the sense I expect things to be done..B&B – In 19 years, from 1991 to 2010, only 3 women have been designated as seniors by Bombay High Court. Why?.RI:(smiles). Good question. There are a lot of us who have proved ourselves to be more than capable but I can’t understand why it happened. When I look back, perhaps it is because we did not apply [to become seniors]; we were feeling too shy to apply or we were not invited by the judges..We had incredibly lovely persons like Justice Lentin and Justice Rege etc who were very pro-lady but it did not happen…. I am sorry I can’t find an answer..B&B: The Bombay High Court is supposed to be a one of the more progressive High Courts in the country. What do you think is the ratio of male and female lawyers in the High Court?.RI: Well, I would say 30 – 70. It is a healthy proportion. Now that you have made me think, let me answer the earlier question. At the end of the day it’s a challenging profession, it takes a lot out of you and it takes a lot of your time. How many of us are fortunate enough like me not to have so many demands on your time and are able to give a lot to the profession?.Two, a lot number of us today are finding desk jobs rather than coming into courts for litigating with the idea of wanting to litigate. Three, because the persons we are working for whether they be clients or employers or our seniors, they don’t want a lady lawyer-.B&B: Why?.RI: Whatever be the reason, there is perhaps an inbuilt resistance [to women lawyers]. At an individual level, I have never faced that and I have been singularly lucky in that sense. But yes there are colleagues at the Bar who have faced it but also overcome it. And the greatest validation for this is the number of ladies who have been appointed as judges by the Bombay High Court. It is still the largest number in India..It could be better, I don’t deny that. If they can be appointed as judges then they can be equally appointed as senior. But that is not happening. We must make an analysis on how many [lady lawyers] are arguing matters. Perhaps that might give us an indication as to why there is this discrepancy in the numbers of lady lawyers who are practicing and those being designated..B&B: From the perspective of the Bar, do you think the Bar is sensitive to the needs of women lawyers?.RI: There is a lot of empathy at the Bar for the different (pauses) limitations that a lady advocate faces. Undoubtedly it is there, especially with the seniors. I find a lot of empathy definitely informing all their deliberations and interaction with lady lawyers. Where there is a non-acceptance of this is in the infrastructure which is being made available to the lady advocates by the institutions. Something as basic as rest room facilities……what is it that is available around the law courts which is required for a lady lawyer who is also answerable for various home demands?.B&B: Are you planning to raise this issue in some way?.RI: We had addressed the issue at a personal level when we had Justice Swatanter Kumar as the Bombay Chief Justice. We were able to get him to come with us around the High Court and physically examine the woeful absence of, for example, restrooms..After that we had about 4 additional restroom areas for ladies. By constantly plaguing him to do something about it we had an extra room allotted to us in the new construction, which came up as an annexe..B&B: What do you think about the concept of devilling where junior lawyers are not paid anything or paid pitifully low sums?.RI: Let me tell you that I have never faced the brunt of [the practice of devilling] and nobody who joined me had to face the brunt of it in the initial years. So what do I think about it? My schooling has been that you should not tolerate it, my actions show that I do not tolerate it..B&B: And what are some of the changes that you have seen in both Bar and Bench over the last three decades?.RI: At a personal level, [I think] there used to be a certain degree of informality. I always believed that as a junior, whenever I was addressing the court I must never leave the court without having made the judge smile or laugh. Both [the judge and I] were seeking to do a job, let us be civil about it. Of course if I had to shout, I would yell. That is not a problem..The change, which I have seen is the increase in the responsibility been cast on the system and the woeful absence of manpower to tackle it. The filing [of cases] has increased tremendously while the number of judges has not..There is also the need for change in procedures for tackling matters. We have to change our manner of addressing a matter. We have to bring in procedural changes, have more realistic costs..B&B: What is your opinion about legal education? More specifically, what do you think about the 5- year law course?.RI: My one grouse against the 5-year course is that you are depriving me of being a student for one year. Otherwise you have three-four years as an undergraduate and then another three years as a student of law. My niece for example, asks me what she should do and I was very clear that she should do the 3+3 because she should be a student for as long as she can..There is no need for you to push yourself to start becoming a professional so early in that sense. So perhaps it is the cost [of legal education] that is pushing us to become practitioners of law rather than students of law. You know, “I want to get that law degree, make that bail application and make my 20,000 rupees”..B&B: Instead it should be?.RI: Ram [Jethmalani] was once sitting in the Chief’s court and he was reading the Indian Evidence Act. I asked him “What are you doing?” He said, “Beta there was a newspaper report today that a court refused to take evidence of a 14 year old boy because he was a minor. So I am looking at what is the exact provision in the Evidence Act.”.And Ram was around 74 or 75 years old when he went back to the Evidence Act? Why isn’t that passion there in our youngsters today to go back to that basic law book?.B&B – Why do you think one should study law?.RI: If you want to have a good life then [litigation] is a great profession. I genuinely believe that you get your due both in terms of money as well as satisfaction for doing a good job. It’s a profession, which permits you to do what you believe in. I was offered a brief the other day and I asked a question, “Who am I really representing?” and that’s a question that I am able ask and refuse a particular brief if I want to refuse it..B&B: And as a subject, what interests you about law?.RI: If you really are a student of law, it makes you think. It makes you doubt, ask questions, be able to criticize from a position of a certain amount of knowledge etc..B&B: What keeps you going to court?.RI: I enjoy it. There is no doubt about that. I enjoy this profession because I am not answerable to anybody but myself, as far as delivery is concerned. I enjoy it because I have to think on my legs, because I sometimes pitted against the best brains in the profession- that itself is something, which is challenging..B&B: How do you choose your juniors?.RI: They choose me! They have just come up to me and say “Rajni I want to join you” and I tell them that “These are my limitations: I don’t have a chamber where I go to regularly, I don’t have a chamber practice in that sense because I only work till five in the evening. Most of the work I get may not have a ‘pass on’ built into them because I was often in the category between a junior and a senior etc”.B&B: And in terms of characteristics, what do you think makes a good junior?.RI: If someone has the chutzpah to come and say “Rajani I want to join you” that person must be good and it has been proved so!.B&B: What do you think of the recent changes in pecuniary jurisdiction of the Original Side of the Bombay High Court?.RI: I have never been to the city civil court so I do not know the judges in the city civil court. I do not know the wherewithal which has been provided to the city civil court to handle even these number of transferred cases..Therefore I am happy that [the limit has been pegged to] only one crore. Let us see what is happening there and how they are able to tackle it, before we do something more drastic to the litigating public..I don’t think I will criticize [the limit] as being too high or too low. It is not about that. One, it is about the quantum of cases you are placing before the courts. Two, it is not just suits that are being transferred. You are transferring interim applications, the entire procedure which has been followed [in the High Court]. I don’t know if there is a mismatch. All these things will have to be sorted out..B&B: Last question, how do you unwind?.RI: Well I don’t work for four months of the year. For a number of years, I have had the tradition of taking off in July and August. I go have a holiday with my friends..One of the things I have learnt from Ashok bhai is that I am happy when a brief is taken back, when a conference is cancelled or when I don’t have to work. I guess also because I am happy with the amount of work, which I have. I don’t want that next matter because I want to notch up a brief in my fee book. I am happy in my space..This interview was conducted on September 5, 2012 in Bombay. Bar & Bench would also like to thank Saumya Ramakrishnan for her valuable assistance in facilitating the interview.