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Bar & Bench speaks with Senior Advocate Aryama Sundaram, who has been at the bar for more than three decades. In this interview, he talks about the initial years of his career, his decision to move to Delhi and the cultural differences between the Delhi Bar and Chennai Bar.
He also shares his thoughts on the current system of appointing judges, the state of sectoral tribunals, and the changes that he would like to bring to our existing legal system.
Bar & Bench: What got you interested in the legal profession?
Aryama Sundaram: I have quite a few generations of lawyers before me, although in the generation prior to mine, my uncle stopped practicing law at least fifteen years before I joined the profession. Actually, my grandfather, Sir CP Ramaswami, was a very well known lawyer in his earlier days and he, eventually joined politics. He was the last Divan of Travancore. He had decided when I was a child that I would be a lawyer and he always used to tell me that. He died when I was just 9 years old. The last thing he asked me before he left for a trip to London, where he died, was “What do you want to be when you grow up” and I said, “A lawyer”. He looked at me and said, “Never forget that”. So I always took it for granted that I would be a lawyer.
B&B: In your initial years, you worked at a Chennai-based law firm?
AS: When I graduated, I initially worked in advertising for two years. Later, I decided I must take up the profession since I had always known that I would be a lawyer. I joined what was the then leading law firm in Chennai called King & Patridge, an old English firm that was taken over by Indian partners after independence. I was with the firm for about three and a half years when some of my colleagues in the firm and I left and started our own law firm, which we named after our last names ‘Natraj, Rao, Raghu and Sundaram’.
I enrolled in the Bar in November 1980 and we started this firm in May 1984. We did a lot of original side work, corporate work and a lot of litigation. In 1990, I became one of the Central government standing counsels in the Madras High Court. That went on till 1995 I think, when I was designated a Senior Advocate by which time I had to retire from the firm.
B&B: Were you asked to become a Senior Advocate or did you apply?
AS: In those days in Madras, there was no system of a formal application like what is done now. In those days, two Senior Advocates would propose the name and then the Full Court would meet and discuss as to whether that person should be designated and take a decision.
My name was proposed by the senior-most lawyer of the Madras High Court, Govind Swaminathan. He told me that he had decided to propose my name. I said ‘Okay’. The next thing I knew I was asked by the Registrar of the High Court to give my consent and so I knew my name had been proposed and accepted. Within two weeks I was designated, fifteen years after I enrolled at the Bar.
B&B: Six years after being designated a Senior Advocate, you shifted to Delhi where you have been practicing since. What are the cultural differences between the Chennai Bar and the Delhi Bar?
AS: Professionally, Delhi is the center of litigation in India. I know there are top class law firms all over the country, but the most interesting cases, the most diverse cases, and most of the leading commercial cases, I find, are in Delhi. So, Delhi is the center of litigation and no other place compares to it. Moving from Madras to Delhi was really moving to the most important court with the most important litigation and that was the difference.
Delhi has a much more aggressive Bar and rightly so because of the nature of litigation and the fact that the best of the law firms and the best of the lawyers concentrate in Delhi. So, the Delhi Bar is much more aggressive than any other Bar you will find. It is far more oriented towards getting orders and reliefs. It is a Bar which is very keen on each of the lawyers wanting to make his own success in a very big way; because [a Delhi lawyer] compares his success to the success of the counsels and law firms which have done exceedingly well. So, there is a great deal of ambition in Delhi, whereas in Madras you will find, far greater thoroughness in the actual study into cases.
Having said that even in Delhi today I find that at the junior level there is a great degree of thoroughness with which the work is done especially in commercial matters and to that extent I find a shift today.
B&B: What do you think of the current system of appointing judges?
AS: I have always believed that the appointment of judges should be by a wider spectrum. There are two sides to everything. On one hand you have the feeling that the executive cannot be the repository to decide the appointment to the judiciary and therefore the aspect of collegium coming in was a very healthy and refreshing transformation. But I equally feel that vesting everything in one of the three wings would not be productive in the long run.
I believe it should be more in the region of having a body which is very well represented; which is not going to be weighed down by political considerations but at the same time has the expertise of the people who are in the government, people in the executive, people who are in parliament and to a great extent from judges and retired judges of the court.
B&B: You do a lot of corporate commercial litigation, what are your views on the state of sectoral tribunals?
AS: I think the tribunal system is exceedingly well conceived; but the way it is going today it might end up becoming self-defeating. I say this because we have to accept that, unfortunately, more than 60% of the litigation in this country is by the government and what is very unfortunate is that if any tribunal decides against the government, the government always appeals. The whole purpose of a tribunal was to have a forum that would be final, in so far as many issues are concerned excepting if very substantial issues arose; and if that was so then it would be a very workable proposition. Now the one to lead the way is the government because they are the ones who are setting up the tribunal. I would think that the government should show a great deal of faith in the tribunals rather than feeling that they are a litigating party before the tribunal also and every time they lose they should go on appeal.
Equally the government fails in manning the tribunals. First, manning them with sufficient people; and then even in the selection of manning them there is often a big problem. Many members of various tribunals have been found by the Bar at large to be people in whom they can neither repose their confidence nor have the ability to man the tribunal. So, on the whole you have defeated this tribunal system, which otherwise as I said was very well conceived and would do a lot of good to this country.
B&B: With what has happened in the Coalgate matter with regard to law officers, do you think law officers are puppets in the hands of the government?
AS: Law officers are meant to advise the government. Law officers are meant to take instructions from the government, the way a client gives instructions. I do not believe that it would do either the institution nor the government any good to have a law officer who merely implements exactly what the government says irrespective of what they feel is the correct course to take or not. In such cases, what is the government gaining out of a law officer? If a law officer is not being used in that manner, I think government is to be blamed completely. Because then the government obviously doesn’t want a law officer who is really going to advise them impartially and correctly but they want someone who is merely going to do their bidding. I think if the government expects the law officer to do nothing but its bidding, the government is the greatest loser and the institution as well.
B&B: In your many years of experience, what would you have to say about the recent growth of corporate litigation?
AS: It is a natural fallout of an intense, economically powerful world. Let us not forget that in the Roman days and before that it was the power of the sword; then it changed to power of the politics. It then moved to the power of diplomacy and today it is the power of finance. Once it is the power of finance, you are going to have jockeying in finance the way you had the jockeying amongst the gladiators, politicians and diplomats. Today’s super power is the economic super power. So commerce and finance have become the backbone of the world and it is but natural that more and more jockeying will take place and there will be more and more fights. Now these are not fights that you resolve by taking to a sword and having a dual, these are fights you resolve through courts, through legal mechanism, through strategy; that is why you have such a lot of corporate litigation today.
B&B: Is there any particular case you remember with fondness?
AS: Well, yes this one case which was the first case ever on medical malpractice in India. There was this famous table tennis player who was a national champion who went in for a minor athroscopic surgery in one of the biggest hospitals and went into coma. He became completely debilitated after that. Of course, his career came to an end, he lost part of his sight and he could not coordinate himself though he was revived. He also happened to be my classmate in my school. So, he came to me and I took up the case and that was the first case in medical malpractice case filed in India. It was in the Madras High Court on the original side.
I could not get any witness because nobody was willing to give evidence against another doctor. Thereafter, one of my friends in Pune, who was a doctor himself, said he would help and he called friends of his who were leading doctors. These doctors said, “yes we must do something about this”, and we made efforts to settle it and when it didn’t work out they agreed to give evidence. It was a very long trial. I had to cross-examine doctors for which I learnt so much about medicine. I had to do a lot of study in medicine, into medical aspects. I found it fascinating to cross-examine a doctor in subject which was his forte and trial work is always very fascinating. And finally we got the decree sometime in 1990. It was a big amount of 20 lakh plus interest and I remember that night, the news was on BBC as the first case on medical malpractice. So I don’t think I can forget that particular case.
I remember that case because when I started that trial, I was 7 years at the Bar, when I finished I was 11 years old at the Bar. Even then I was relatively young when I did that case and I faced the leading lawyers in the country. I think I put everything into it.
B&B: Any case in the recent times, which you feel, you should have argued?
AS: To be frank with you I think I have argued almost every case, which I feel, I should have argued. Sometimes there are cases which, at some stage I am briefed but when it comes up for final hearing I would be involved in certain other cases and so end up missing that case. For example, in the Novartis case I had appeared once for the Indian parties, who were objecting to the patent, but by the time it came up for final hearing, I was already caught up in another case. So I couldn’t take it. This always happens because of pressure of time after all you have only 4 ½ hours of court sitting and there is so much you can do in that 4 ½ hours.
B&B: You are known to have immaculate court manners. How do you convince the bench to see your point of view?
AS: I don’t see myself as having immaculate court manners. I think it is important to have manners in anything you do in your life. It is important to have manners with your friends, your family, your staff, and your juniors. It is important to have your manners in court. And of course in court we have our forms, the forms in which we address the court, the form in which we clothe ourselves in court, the way in which we conduct ourselves in court. I feel it is important for us to live by those forms and always live according to correct manners in what we do and that is important because again it goes back to the whole concept of society – you respect others and others will respect you and I have a great belief in that.
B&B: If you were to make changes in our legal system, what would those be?
AS: Firstly, I feel the question of bringing the Judicial Accountability Bill is important. But it requires a great constitutional amendment because I feel the present system of impeachment of judges is not fair and is not correct both ways – one as it stands you find that somebody who should not continue as a judge, still continues because of the impeachment process. Equally the unfairness of it is if a ruling party with a great majority decides they want Mr.X out, they can impeach him and bring up charges although the court has said that no the panel must approve. But in the final analysis it is a purely political decision. Take United States – an appointment of a judge has to be approved by the Senate but unfortunately our Parliament does not function the same way as the Senate of the United States or the House of Commons in England performs. Our Parliament does not perform that way. So to that extent I feel that the judicial accountability should come in a more meaningful manner.
Second thing I feel is that the tribunal system must be made effective and final. At least final as far as the government is concerned unless the order of the tribunal is found to be ex-facie perverse, an appeal by the government should not be permitted on any such findings, so that there is finality.
Thirdly, I equally feel that the alternative dispute redressal forum is not working effectively because courts are interfering far too much with decisions of alternative dispute redressal mechanisms. Arbitrators’ awards are being disturbed a lot. The Bombay High Court literally listens to an arbitration setting aside petition like a first appeal. We must learn to respect alternative dispute redressl for what it is and give it the importance it has.
Fourthly, what I feel is that (maybe it is a dream) we should instill great pride in lawyers for their own profession, what their profession really means, what their profession can accomplish. To have a genuine pride in it would make us bring a lot of self-respect to our profession, which I feel is important.
Lastly, I would always like to see that we maintain the importance of the judiciary as it stands today. Because of the complete failing of other limbs of the State, the judiciary is highly respected. But I would like it to be highly respected for itself and not merely because of the failings of the other limbs of the State. I would like that respect to be there not only for the Supreme Court, which has earned and commanded this respect, but also for the subordinate judiciary which I am afraid is not there amongst litigants who often feel that they do not get a fair and impartial hearing; and I would like to see that disappear. I would like to see faith in the judiciary in the subordinate stage and not merely at the Supreme Court stage.
B&B: What do you think of young lawyers today with specific reference to national law school and five-year system?
AS: I believe there was a great advantage in the old system, where you have gone through three years of graduation and then went through three years of law because I feel that before you start study of law, a degree of maturity is always useful. Having said that I see the product of the national law schools – and I won’t restrict it to the national law schools, I will say the legal institutions available today – is very – very good. I, however, find and I must state this – the outlook appears to be very monocular, it seems to focus on law per se rather than seeing law really as a way of life. If you see it historically, philosophically – what is law, law was nothing but the rules by which society lived with each other and terms of understanding by which people lived with each other; which means that in order to be an accomplished and complete lawyer, I believe you need a lot of understanding of human behavior, human thinking, an understanding of history which I think is very important, and understanding of philosophy.
I also feel that most of the students today expect a return on investment straightaway; and while they are getting it I am very happy for them. The point is that because of this they tend to go more into purely corporate work and therefore don’t get practical experience in law. It is more of a textbook or more of an “i-pad and a computer” knowledge of law and the practical aspect of law is sometimes lost. I feel it is vital that every person who becomes a lawyer should devote two or three years to actually going to the courts, actually working on cases, to see the practical implementation of law. I do believe that practical orientation to law is a must.
B&B: What advice would you give to young lawyers?
AS: The only advice I can give to young lawyers is compete with yourself and don’t bother about what someone else is doing. Always stand by your principles. Be independent and fearless.
On being a lawyer per se, I will say always have a plan and prepare your case thoroughly. There is no need to prepare an argument. I always prepare a case; I never prepare an argument. Once you are thorough with the case and the subject matter it is very easy to argue your case. If you are not thorough with the case, however much you prepare you will not be able to argue it. Third, don’t be scared of being original in your thinking. Be fearless in your thinking. Believe in yourself, believe in your own thinking, and believe that you have ability to do it and that is the best advice I can give.
B&B: Interests other than law?
AS: I enjoy art. I don’t go by the artist’s name. I go by the beauty of the work. I enjoy seeing art. I am a cigar smoker so I naturally enjoy the cigar. I love playing golf but unfortunately I don’t get a chance to play in Delhi but during the holidays I play almost every day.
I enjoy reading fictionalized history, which has its basis in history with a lot of fictionalized work. I could read anything at all if it is interesting. Right now I am reading a law-oriented book, which is not something I always read. It is called ‘Ladies And Gentlemen Of The Jury: Greatest Closing Arguments In Modern Law’, which is a book written by Michael S Lief who wrote Devil’s Advocate.