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Bar & Bench speaks with India’s former Attorney General and eminent jurist Soli Sorabjee on the recent public spat between judges, the collegium system, role of the law officers and the huge pendency of cases.
Soli Sorabjee, who has completed 60 years in the profession, also spoke about the changes he has seen at the Bar and the Bench over the years. He appeared in court for detenues who were arbitrarily arrested and for the victims of press censorship during the 1975 Emergency, which he says has been the most satisying moment in a career spanning six decades.
Bar & Bench: What are your thoughts on former CJI Kabir’s interview with Karan Thappar?
Soli Sorabjee: It is very distressing that there are these spats between judges in the public domain. I mean, whatever differences you have, sort it out, but don’t do it in public. It really lowers the image of judiciary. I have never seen something like this happening in 60 years of my practice. Chief Justice Bhattacharya was obviously disappointed that he was not elevated; but making allegations and attributing personal motives to Justice Kabir was not right. And Justice Kabir was in a difficult position. If he didn’t reply, it amounted to accepting the allegations; so he replied. But [Kabir’s] interview with Karan Thapar, I think that was never expected from a former Chief Justice of India. He even made some remarks about Justice Verma. That is absolutely unpardonable. Justice Verma was a fine judge and he is no more with us. I don’t know what came over Justice Kabir.
See the problem is that the judiciary has no power of the sword and has no power of the purse. Its real strength lies in the public perception of its impartiality and of its ability to dispense impartial justice. Now when these things happen in public, public perception of the stature of judiciary goes down. I am very upset.
B&B: What are your thoughts on the collegium system?
SS: This collegium system needs to be replaced by a properly manned National Judicial Commission. Of course, there should be judges [in the National Judicial Commission] because judges know better than the Executive about judges of the High Courts and about the lawyers, what is their ability and integrity. But judges can’t have an exclusive voice; surely the Executive must have a voice. There must be other voices in the appointment of judges. Remember that, the collegium system was devised as a measure to prevent “sarkari” judges; but the way it works at present is very unsatisfactory. Look at the other thing; Gujarat Chief Justice Bhattacharya made these allegations but the decision not to elevate him was unanimous. What about the other four judges? What about them? So all these allegations, counter allegations, replies … “theek sa nahi lagta hai” not at all good for an institution like this.
Talking about the composition of National Judicial Commission, there can be the Chief Justice, two senior judges, some retired Chief Justices of eminence and the law minister. After all, the government is the biggest litigant. Eminent jurists can be appointed in consultation with the President and the Chief Justice. The composition can be discussed. But judiciary must have an edge in the system. It must have a dominating voice but not an exclusive voice.
B&B: Do you think reasons should be provided for not elevating a particular judge?
SS: I don’t think so because, after all, that person still carries on as a judge or Chief Justice. To give reasons will not be fair to the person concerned and this sort of thing has to be confidential. Reasons must be recorded but there should be no public disclosure. Some things have to be confidential. You can’t have transparency in everything. I don’t think we should go that far.
B&B: As a former Attorney General, what do you have to say about the public row between senior law officers in the Coalgate matter?
SS: The ex-law minister Ashwani Kumar’s version was a little different from the Attorney General’s. There was no public spat. I mean they did not write letters to each other. The ASG should have sorted out with the Attorney General. The Attorney General is the captain of the team. Go to him and sort it out. I don’t understand this anxiety to go to the press. This urge should be checked.
B&B: If you were the Attorney General now, what would you have done?
SS: I don’t know. As far as I am concerned, I would have told the court the full facts. And if there was some consultation that took place, then say that. Leave aside Attorney General, every lawyer is an officer of the court and he owes a duty of fairness and frankness to the court. That should never be breached. Of course, you have to protect your clients’ interest but more important is the question of how you deal with the court. The court must not be taken for a ride in any case. There should be no lack of honesty as far as the court is concerned. And these are the high standards, which a law officer should always maintain. When I was a law officer, I said things that I knew would go against the government; but you have to be frank. You are not in court to win every case. You have to essentially see that justice is done.
B&B: Do you think the law officers are puppets in the hands of the government?
SS: Certainly not. I am sure they give frank advice. If the government doesn’t accept it, it is [the government’s] choice. The CBI Director may be a caged parrot but law officers are not.
B&B: What do you have to say about the exorbitant fees charged by advocates?
SS: Disgraceful. They have reduced the profession of law, a noble profession, to a commercial racket. Of course, lawyers don’t live on love and fresh air. You charge fees; you charge heavy fees from corporates but not extortionate fees. Charging Rs. 40 – 50 lacs for an appearance in the High Courts – this is something I don’t approve of at all. All said and done, the legal profession is a service-oriented one. It doesn’t work on the law of demand and supply. Lawyers are not traders. Lawyers often say, “The client can afford it.” What does that mean? You must have a certain standard. I repeat that, in certain cases you may charge heavy fees but some fees are exorbitant and that I think this makes law more of a commercial undertaking than a noble profession.
B&B: Your chambers has produced a number of illustrious lawyers, many of them have become Senior Advocates. Thoughts?
SS: I am very happy, of course. I think all of them are excellent. I may have a difference of opinion in the way they act in their advocacy or what they do but by and large I am certainly happy that they are from my chambers. Harish Salve became Solicitor General and Gopal Subramanium too was the Solicitor General. There are many others; Uday Lalit, whom I consider one of my finest juniors. He is very modest and not at all crazy about fees.
B&B: What is it about Parsi community and legal luminaries?
SS: Nothing like that. There are non – Parsis who are excellent. You had Motilal Setalvad, C.K. Daphtary, S.V. Gupte and others. Even at present to mention a few you have Ashok Desai, Anil Divan, K.K. Venugopal, Mukul Rohatgi and others. Whatever it is, perhaps Parsis have made a mark in this profession because of their gift of the gab and style of advocacy.
B&B: You have been in the profession for 60 years, what are the changes you see at the Bar and the Bench?
SS: The standard of judges is not the same as that was in the 60’s or early 70’s. That has declined. The collegium system is partly responsible for this; and all sorts of false notions that you look at seniority alone. Seniority is important but that is not the only factor; there are also other factors.
Unfortunately the junior members of the Bar who are very good and very intelligent have got into the habit of thinking of making a fortune quickly. I have always said that, there is nothing wrong in making money, but if you have that mind set don’t enter legal profession. Then you should go for export import business or real estate business, and make lacs and crores. I am not saying they shouldn’t earn or charge fees but this shouldn’t be your main objective. Otherwise, you are no different from a Chandni Chowk trader.
You see what happens today there are so many courts and so many judges. In the Supreme Court, we have 13 courts between 26 judges; there is no coherent jurisprudence. Different benches have different views. There is conflict between 2 Division Bench judges; then they refer it to a third Bench. The court has not got any broad policy as such; not that they should lay down a fixed policy.
For example, in respect of entertaining PILs, certain PILs should not be entertained at all. They are more political interest litigation and publicity interest litigation. They should be finished at the threshold but the trouble is some judges are strict about it while some are not. After all judges have different ways of thinking, different sense of values. Some may feel that where the rights of citizens especially right to life, liberty, health are involved, we should entertain the petition. I am also for that.
There should be judicial activism in view of the state of affairs in our country but judicial activism doesn’t mean you start running the country by saying appoint so and so, pay him so and so, do this in 6 weeks etc. This will only add substance to the criticism that judiciary is gradually taking over the running of the country and that is not a good development at all.
B&B: What do you have to say about the huge pendency of cases?
SS: This problem has been there for years. What is required is a three-pronged attack by lawyers, judges and the government. First of all government must provide more judges especially in the lower courts. There should be proper infrastructure. Judges don’t have a proper library, they have statutes that are old, and they hardly have stenographers or any other assistance. Lawyers – there are some lawyers who are known as adjournment lawyers. They are only briefed to take adjournments. Also, the trouble is judges have been too liberal in granting adjournments. I am not saying judges should be unreasonable and adjournments should be granted when a counsel does not appear due to overnight illness or death in family and similar reasons. But if the lawyer is busy in another court or he is not available, judges must be strict. They are not running a popularity contest and adjournments must be refused on grounds of personal convenience of counsel just because they want to earn in some other court and the matter gets adjourned. Unfortunately, if it gets adjourned because of the load of the dockets, it doesn’t get adjourned for a week but for 3 or 4 months. So this must be curbed. All 3 have to play their part – the judges, lawyers and the government. There must be a crusade against court arrears because it is a shame that some people who are denied bail because they cannot afford it have been languishing in the jail for years; sometimes for a longer period than the maximum period of they would receive upon conviction. Disgrace!
B&B: What can be done to reduce litigation by the Government?
SS: When I was the Attorney General, I had made very strict rules. The appeal from the High Court judgment should be filed only if there is conflict between High Court judgments, or a tax matter that has huge recurring fiscal implications or in a matter where there is obvious miscarriage of justice; otherwise every wrong order of the High Court cannot come to the Supreme Court. So that way the law officers play an important part in containing the flow of litigation to the Supreme Court by saying, “No it is not a fit case”. Similarly, an Advocate General can do that in the State but he should be willing to take the trouble. I have noticed that in matters of government employees who are superseded, or whose services were terminated and the High Court says termination was wrong, there is no need to appeal to the Supreme Court, as there is no question of principle involved, or no real question of law but they only want to say it will go to the Supreme Court. So the role of the Attorney General in the Center and the role of Advocate General in the State is very important. They should really apply their mind as to which cases are fit to be taken to higher court. Not that this is a magic solution but it will certainly contain the flow.
B&B: What advice would you give to young lawyers joining the legal profession?
SS: I would like to say one thing. Please don’t expect to make a mini fortune in a short time. Work hard. Law is a jealous mistress. And always remember that it is a service-oriented profession. Services should be available to those who are really needy and who are really the victims of injustice. Apart from all of that the main thing is your mindset. You are in a profession and not in a business. It is a noble profession and don’t let it degenerate into a commercial racket.
B&B: When you look back at your career, what gives you the greatest amount of satisfaction?
SS: During the June 1975 Emergency, I appeared in court for detenues who were arbitrarily arrested and for the victims of press censorship. That gave me the greatest satisfaction because I thought justice was done. I am sorry to say some lawyers did not want to take up such cases. They thought the government may get upset or there may be some other adverse consequences. But where a person who was falsely detained and whose detention was quashed, though I didn’t get any fees, it gave me great satisfaction because here a person’s personal liberty was vindicated and justice was done.
B&B: Do you have any regrets?
SS: I have many regrets. I wish I hadn’t given up music. Another regret is I could have been a librarian somewhere and be in the company of books. I love books. There are many things I could have done and I think everyone feels that way. Not regrets but I do wish I had concentrated more on music. I am very fond of nature. I like going out, in the country. So if a man has no regrets he is the most arrogant insensitive fool on earth.