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In the second part of the interview, Senior Advocate Sanjay Hegde talks the relationship between the Executive and the Judiciary, “unpopular” cases he has appeared in, and the art of advocacy.
How, in your opinion, has the higher judiciary fared thus far in the face of the apparent brute majoritarianism that is characteristic of this Central Executive?
This might cost me friends, but that there has been no great measure in which the government has invested its political capital, which has been struck down by the judiciary, after bank nationalisation. It has been nearly fifty years now since the judiciary has found major fault with the government’s policies. Individual politicians may have got into trouble, but in cases where citizens have sought relief from government measures, relief has not been forthcoming.
Take for example, demonetisation. Though there were petitions filed instantly and heard at length, there was never any question of an interim order. Therefore, as much as we say that we have an activist judiciary, the activism is limited to bureaucratic excess.
The government constantly states in Parliament that it is committed to maintaining independence of the judiciary. Do you believe that statement?
Absolute bunkum. This government, like the previous strong government of Indira Gandhi, has not seen independence of the judiciary as a great virtue. It has engaged in a war of attrition; we have heard rumours where it has engaged with specific members of the judiciary. Any government which is interested in the independence of the judiciary would have seen to it that judicial appointments were made speedily and in line with the recommendations of the judiciary. Here, you see them sitting on good appointments if they don’t like them. They seem to indicate that they want a convenient judiciary.
What improvements would you suggest to the Collegium system of appointing judges?
The Collegium system was brought in to ensure that the Chief Justice’s voice was not the sole determinant, that there was collective thinking. Again, what has happened because of the transient nature of the Supreme Court, there is no permanent Collegium.
Given the temporary nature of Collegiums, it may not be a bad idea to have a permanent body – without the interference of the Executive – comprising maybe retired Chief Justices who are known to be talent-spotters, and members of the Bar who command universal respect. The list of possible appointments must always be kept ready so that a year before a vacancy is due, the next man has already been vetted by the Information Bureau and is ready to be appointed.
In the case of Justice MC Chagla, he had already been sounded out on a vacancy that was due to come by only upon the retirement of somebody else. What the Chief Justice promised him then, happened.
Now, we have this peculiar display of the Collegium unanimously recommending someone, that person, in deference to tradition, staying away from Court, and the appointment is so far delayed that the person has to come back to court.
Except for very solid reasons, the government of the day should have no say in who should be appointed. They can warn the judiciary if they have any material, but that is all. They should not have a say in pushing candidates who carry their political views. Leave matters of law to men of law.
The judges who held the infamous Press Conference drew flak from various quarters. Do you feel that the criticism was justified?
I am sure they had very good reasons to do what they did. Sometimes, decisions are taken on the spur of the moment, egged on by persons who may not have the best interests of the institution at heart. The institution has to work in a collegial atmosphere, where everybody’s voice is heard. It may be expressed through the body of the Chief Justice, but then he speaks for the entire court.
In the United States, Chief Justice Earl Warren had just been appointed when the issue of de-segregation came up in Brown v. Board of Education. The one thing he ensured was to work with all of his brothers so that the decision was unanimous. As far as possible, Chief Justices should carry everybody on board.
Has there been any palpable change since?
I don’t see any palpable change, except in respect of mentioning. I suppose the dynamics of the situation are still being worked out. Everything is being put down in terms of rules and memoranda. That too has its drawbacks, where structures then get stultified. Maybe that is a consequence when collegiality is lost.
Moving on to some cases you have appeared in. The lawyers appearing for the accused in the Nirbhaya case, and yourself as well, were vilified by the media. How does a lawyer do his job in that atmosphere?
I had to explain to a lot of people, including family members, that I was asked to assist because the Court needed to be assured that everything that needed to be said in the defence of the accused, was provided to them. I had no hesitation at all in taking up the matter. Pressure doesn’t work on me, in fact, it only makes me more stubborn.
One thing I’d like to say is that if a lawyer does not stand up for an unpopular cause, then he is not doing his job. We do not get into the profession for popularity. We perform the same function as surgeons saving lives. Ajmal Kasab was shot at when he was being apprehended. Nobody calls the surgeon who operated on him and saved his life an anti-national. But there were plenty of things said about lawyers who defended him. I don’t think that is fair.
Lawyers must always do their damnedest in the really bad matters. To do anything else is to waste the gift that you have been given as an officer of the court.
At what do you think the need arose for a special legislation to deal with lynching? How did the draft guidelines come to be framed?
The first lynching that happened when Akhlaq was killed in his own house, horrified me. The very idea that people could come into your house and kill you on the basis of what was in your refrigerator, was a complete breakdown of the rule of law. You could dismiss it as a one-off event, but it happened again and again.
So, some young people and some Delhi University and JNU Professors requested me to see whether some draft legislation could be made so that if anybody in Parliament wanted to take it up, there would be some point to work from.
The young lawyers in my office worked very hard at it, and we came up with a draft. For the record, two of my colleagues, Anas Tanwir and Pranjal Kishore put in a lot of effort. Both had, if not experience of the subject matter, enough domain knowledge of what happened on the ground. The initial draft was vetted by many people including Professor Nivedita Menon, Manoj Jha etc. They collectively put their heads together to frame the draft legislation.
At this point, an awareness campaign was going on, and a writ petition was filed not only by Tehseen Poonawalla, but also by a couple of people including [Human Rights activist] Martin Macwan and others who had been victims of cow-related violence.
While hearing these petitions, the Supreme Court attempted to get to grips with the problem. Some of the states were not taking the issue seriously, and the matter progressed quite slowly. We were quite surprised when on a miscellaneous day, the Chief Justice said that he would take up the matter and conclude it.
With all this experience, and the fact that the Chief Justice had delivered an earlier judgment on Khap Panchayats, prompted me to keep a draft ready of punitive and preventive measures to deal with lynching. So, we put in some suggestions from the draft legislation, and some from the experiences of the petitioners, and submitted the guidelines to the Court. And the Court accepted quite a few of them, and modified some.
I may be getting ahead of myself, but I think that when the history of these times is written, somebody may point out to that judgment as one of the moments in a peak period when the Supreme Court stood up for the oppressed. Like Justice HR Khanna’s dissent during the Emergency, these little beacons are for future generations to point out to.
People like KTS Tulsi and Shashi Tharoor had also tried to bring in private member bills in Parliament. So, it is not that a law cannot be framed. But till such time it is framed, these guidelines will have to work.
You had also appeared in the Euthanasia matter, where the Court recognized the validity of Passive Euthanasia. You had made some poetic references in your arguments.
It was one of my better moments in Court. I had told the Court that Keats, at 26, had thought it rich to ‘To cease upon the midnight with no pain’. And Dylan Thomas, addressing his father, had said, ‘Do not go gentle into that night. Rage, rage against the dying of the light’. It was one of those rare opportunities to use poetry to make a point.
How does a lawyer develop his style of argument?
The true function of a litigating lawyer is to find his actual voice. Do not try to copy anybody else. Anyone who tried to emulate Mohammed Rafi fell by the wayside. The market finds use for people who have their own voice. The essence of the lawyer’s job is to persuade the court. Find whichever part of your personality that is the most persuasive, and work on that.
A senior lawyer once said, ‘Try and agree with the judge as much as possible; even if you disagree with him, do not be blunt.’ Agree and point out how the argument could run into trouble. Most importantly, make the judge feel comfortable.
A lot of people can’t argue without getting aggressive, and aggression is often liked both by the instructing advocate and the client who is the paymaster. Judges have also learnt to deal with the aggression and focus on the arguments, especially when a face or a style becomes familiar. But unnecessary aggression is counter-productive. The danger of an aggressive style is that you are likely to be unknowingly aggressive to your opponent or even to somebody on your side, and judges definitely don’t like that.
Any particular interactions in Court that you can recall?
One interaction that sticks in my mind is Mr. K Parasaran arguing minority rights in the TMA Pai case. Justice SN Variava, though from a Parsi minority, didn’t seem to think too much about minority rights. The Supreme Court had held in a previous case that a minority institution with a sprinkling of outsiders, did not cease to be a minority institution.
I saw Mr. Parasaran get Justice Variava to be more receptive to his arguments by invoking images both from law and mythology. He said, ‘Your Lordship recollects what happened when a ship came on the western coast of India from Persia and the King sent a bowl of milk to signify that there was no space. The wise priest took a spoon of sugar and put it in the milk, saying, ‘We will sweeten the milk’. That was a reference to the “sprinkling of outsiders”. The invocation of this imagery turned the judge; he was much less hostile to the idea.
These are little bits of advocacy which are almost impossible to learn by just watching. Many people miss the nuances of what happens in court. There is a theory that the art of advocacy is nothing more than storytelling. From your brief, you must tell the most compelling story that can be truthfully told.
What does the future hold for the legal profession? Would you recommend the study of law?
I suspect that the practice of law is going to change greatly and very fast, especially with the coming in of artificial intelligence, which is going to take away a lot of corporate jobs. Despite this, a legal education is a very valuable education because it teaches you both to think as well as to logically express yourself on paper. Not everybody who goes to law school will end up as a lawyer, but he will definitely end up as a better human being.