“If you don’t have it in you, being someone’s child doesn’t help at all” – Neeraj Kishan Kaul
Interviews

“If you don’t have it in you, being someone’s child doesn’t help at all” – Neeraj Kishan Kaul

Pallavi Saluja

A graduate of Delhi University, Senior Advocate Neeraj Kishan Kaul completed his Masters in Law from Cambridge University. Joining the legal profession in the 1980’s, Kaul was only 38 years old when he was designated a Senior Advocate. In the summer of 2009, he was elevated as a judge of the Delhi High Court, a post he occupied for four months before resigning.

In this interview with Bar & Bench he talks about his initial years, the decision to resign from judgeship and his thoughts on the legal profession.

Bar & Bench: What got you interested in the legal profession?

Neeraj Kishan Kaul: My father was a first generation lawyer but then we grew up in an environment where he knew a lot of people from the legal fraternity. My brother also took to law thereafter. So all that got me interested in law. Also, right through school I was interested in debating and theater. I think law has a bit of debating and theater as well, so that added to the whole interest in the field.

Bar & Bench: You come from a family of lawyers. Do you think that helped you shape your career?

Neeraj Kishan Kaul: I think it helped me choose my career but if you are talking in terms of success in the profession – the initial advantages are always there in the nature of a library, a chamber, a certain financial security and these things do matter a lot in the beginning as the initial years are not very “well paying” in the profession.

That being so, one really has to last and survive the first 8 to 9 years before things take off and howsoever much you may love the profession you also need a certain amount of sustenance to survive. So to that extent – the chamber, the library, the office did help but not beyond that, according to me. If you don’t have it in you, being someone’s child doesn’t help at all.

Bar & Bench: How were the initial years?

Neeraj Kishan Kaul: Tough but I thoroughly enjoyed them. I worked with the Late Justice Arun Kumar. I was his junior till he was elevated as a judge of the Delhi High Court. He was a remarkable senior to have, very diligent, very hard working and his whole style of preparation was the way people used to make a brief in the old days – very meticulous, very thorough and that is what I learnt from him. I also learnt from him that holidays are very important so till date I take my holidays as seriously as the profession!

Bar & Bench: You were elevated as a judge in 2009 but resigned roughly 4 months later.  What made you accept judgeship in the first place and then resign?

Neeraj Kishan Kaul: To be very honest, when I took it, whatever I had heard and seen of judgeship was from my brother. That was my only link to the judiciary though at one point of time my father had expressed a certain keenness that both his sons should be judges.

I took [the post] very happily but I must confess that after taking it I realized that this is a decision that I should never have taken. It is an excellent job provided you have the temperament for it and I just wish I had known this earlier. Within the first 2 or 3 weeks of being elevated, I told my wife that it was a wrong decision. Because when I sat there as a judge, I realized that my temperament was such that I did not enjoy it. I valued arguing in court, that excitement and the preparation for a matter.

I ultimately thought that I was not being fair to myself and to anyone else because you really can’t dispense justice if you are not happy with what you are doing. You can’t afford to hold a Constitutional post and dispense justice when your heart is not in it. I took a cautious decision and said I must go back and do what I enjoy; and I have thoroughly loved it since I have come back.

Bar & Bench: As a judge what are the things that you observed about the judiciary that you may not have been privy to as a lawyer?

Neeraj Kishan Kaul: I always respected the judiciary immensely but my respect for them went up even more because I realized the conditions that they work under. I think a senior counsel is far better assisted in terms of the assistance that we get from our law clerks, our chamber colleagues, and from the solicitors who brief us. But judges in this country just don’t get enough assistance. They are inundated with 50 briefs a day and you cannot humanly read, prepare and deliver judgments in each one of them without proper assistance from legally experienced law clerks. They need (a) more law clerks, and (b) some more experienced people. I think it wouldn’t be a bad idea to have judges from the lower judiciary for a short period being attached to at least the High Court; it would help reduce their load.

If you see the routine of a judge, it is very intense. He is in court till 4:30 pm and then he or she has administrative committee meetings, then they have about 40 to 50 orders to sign. By the time it is all over it is already 7 pm. And then you have your briefs of the next day cases to read.

Bar & Bench: What are your views on the state of sectoral tribunals?

Neeraj Kishan Kaul: I am completely against them. I am not a votary of tribunals at all because I feel it also impacts the separation of powers. At the end of the day, decision-making was meant to be with the judiciary and not the executive. If you see the composition of tribunals, very often they just have one retired High Court judge or Supreme Court judge at the top and the other posts are  manned by 5-10 bureaucrats.

If a tribunal is headed by a bureaucrat, I am totally against it because according to me the bureaucrat has been brought up in a particular culture as you grow up. There are certain fundamental legal principles which a lawyer is trained with as he grows up – natural justice, reasoned decision, how to rule against the State, how to take on the tyranny of the State; and very often I feel the executive is just not equipped to deal with those arguments.

Secondly, I have honestly felt that the same clogging [of courts] exists in tribunals; they have not solved any problem in terms of pendency. I have not seen them bringing any special expertise to the subject that the courts didn’t have.

Bar & Bench: What is your opinion on the current system of appointing judges?

Neeraj Kishan Kaul:  I think the system, as it exists today definitely led to better appointments because, I think, the earlier system of just the executive deciding had led to a fall in standards. Having said that, to a great extent the judges or the collegium system has subjected itself to a lot of criticism.

In the beginning, this system delivered on the hopes and aspirations that it had guaranteed. Even later on, there were a lot of good appointments. But somewhere criticism started coming in; that [there was] interference from the judges of the apex court or that someone is promoting his favorite, which was inherent in the system even earlier. So I think they did expose themselves to a certain amount of criticism and lack of transparency by keeping people in the dark about what was the basis of someone being appointed.

But I still maintain that this decision should largely be left to the judges, maybe with more accountability, with more transparency. There should be some justification [as to] why you have chosen a person, what has been his nature of practice, his requisite experience, his potential etc. I am not a votary of the executive or the politicians having too much of a say in the appointment of judges.

Bar & Bench: You have been in the profession for almost three decades – what are the changes you have seen at the Bar and the Bench?

Neeraj Kishan Kaul: At the Bar, I think the level of people joining is a lot brighter than they were when we joined. Suddenly law is the “flavor of the month”, everyone wants to do it. I didn’t see this kind of interest in law when I joined. You have these colleges that have sprung up and brilliant students coming out. Having said that, I am not sure whether the profession is ready to absorb so many law students being churned out by various National Law Schools. I don’t see that kind of a market [that can] absorb so many of them.

As for the Bar, I think it was a more congenial place when we joined the profession. There is a lot of mudslinging at times which did not exist earlier and that saddens me. For instance, take Bar elections; I don’t relate to the way elections are held in the Bar in today’s times because I am still very conservative. I feel you should either just have a debate or people just declare a candidature and that should be the end of it.

As far as the judges are concerned, definitely I think from the time the collegium system came in some very good appointments were made. Some great judges were appointed but as is the case with everything, there were problems. Some not so deserving people were also appointed but to some extent it’s inevitable in a system.

And in a country like India I think judges have to be very cautious. I feel judges in India have to have a pro citizen approach; they have to be cautious of the fact that there is a certain tyranny of the State in this country. The State tends to be arbitrary and unreasonable and judges have realized that over the years and have given landmark judgments protecting rights of individuals.

Bar & Bench: Isn’t that Judicial Activism?

Neeraj Kishan Kaul: It is very easy to criticize the judiciary and say that there has been activism. Yes at times it is justified to criticize. For instance if you get into policymaking, it is not your area of expertise, you really can’t determine in areas which are purely policy related. Having said that, there are other areas where the executive completely abdicates its responsibility and someone has to step in. The use of CNG for public vehicles is an example  – it led to a huge drop in pollution level.

There are areas of judicial activism – rights of individuals, rights of prisoners, empowerment of women where I think the courts have played a huge role in this country; and that is where I think the quality of people you appoint is very important.  People lay so much emphasis on honesty and integrity of a judge. To me that should be given – honesty is not a virtue; honesty is a necessity. Today when we appoint people to various posts, one of the first arguments is, ‘he is honest’. So what? You must have something more to be appointed to a post. It just can’t be your integrity, which is needed. You must have something more. I think in the days to come when they appoint judges, they must look beyond just integrity and character, which I think are the most essential characteristics.

Bar & Bench:  What do you have to say about the corruption in judiciary?

Neeraj Kishan Kaul: When there is corruption in politics and executive, it can’t be that there will be no corruption in judiciary. It is part of the same system; of course, that is no justification. Having said that, at times, it is also exaggerated. It happens but at times I have also seen lawyers come out of the court and making the most irresponsible statements after a case has been lost; or very often the lawyers may have had their side deals, they may have given assurances to parties and when things don’t work, they make irresponsible allegations against the judge.

If you have been a good, solid judge by and large people will respect you. There will always be that fringe element which will talk irresponsibly. The majority of the Bar will by and large never make a statement against a judge who has conducted himself properly.

Bar & Bench: Recent allegation of sexual harassment against two Supreme Court judges – your thoughts on the way it should have been handled?

Neeraj Kishan Kaul: It is a tricky one because in the first case, there was a whole set of people who said that Supreme Court had no jurisdiction over the gentleman concerned because he was already retired and the Supreme Court couldn’t have entertained that. The other view was that irrespective of whether he has resigned or not they should have set an example but ultimately the Supreme Court followed it up by saying that we don’t have jurisdiction in these matters. So more questions arose – if you didn’t have jurisdiction why did you have to get into it at all?

It is a debatable point.

There is no doubt that [with regard to] the rights of a young individual or intern, whoever it may be, the person should be severely dealt with. Having said that, there also have to be checks and balances in the system. Look at it from the perspective of the judge. Suppose the incident has not happened, look at his reputation – he stands condemned for all times to come. These are not easy issues to answer.

I think the lady, if it has happened, deserves redressal, she deserves protection of her rights, and justice at any cost. But at the same time some checks and balances, some procedure must be there because you can’t condemn someone without any due process.

We have to evolve a procedure where such incidents are dealt with at the earliest and in a transparent manner so as to infuse confidence in the institution. We need to send a signal that, “Justice will be done” and at the same time ensure that the man who is discharging his constitutional responsibilities is not unnecessarily exposed to irresponsible allegations. The need of the hour today is to evolve a transparent system where these issues are taken up, debated and decided upon and justice done at the earliest rather than leaving them in the realm of speculation with people making all kinds of discussions in the corridors without actually knowing what is happening; and that doesn’t do any justice to that young intern either.

Bar & Bench: If you were to make changes to our legal system, what would those be?

Neeraj Kishan Kaul: As far as the judiciary is concerned, I would definitely give them far more assistance in terms of legal assistants and law clerks. I would definitely increase their emoluments. I would want to make the system of judges’ appointment more transparent and more accountable; maybe involve a few jurists and the odd politician. But largely, the power should vest with the judiciary in a far more accountable and a transparent system.

There should be a check on the number of adjournments that are given, the number of hours you give to the lawyers to argue. Arguments in India should be time bound, followed by submission of a synopsis. Adjournments should be discouraged and costs should be heavy where adjournments are sought.

And of course, more infrastructure, more judges, more courts are needed. And it is given that you can’t appoint the wrong people and then devise methods to set the system right. The first thing is appointing the right people.

Bar & Bench: You are known to be extremely patient when briefed by juniors.

Neeraj Kishan Kaul: I strongly believe that the best way that a senior counsel can give back to the profession is by encouraging juniors; helping them to get into the profession and find their feet. I think this is the bounden duty of every senior counsel because the profession has given us so much.

Secondly, a smile to a junior, to sit and have a coffee with him/her may mean a lot to that youngster because very often first-generation lawyers come to the profession and have no one to support them. A pat on their back or an odd recognition gives them a feeling of acceptability and belonging to the profession.

Your idea should never be to humiliate someone especially when he or she comes with his clients. It is a matter of immense pleasure for me when I see a youngster fully prepared with his case law and facts. It makes all the difference to the conference and makes you feel very good.

I also think we need to have more serious measures to ensure that the younger members at the Bar are looked after both financially and professionally in terms of whatever opportunity that comes their way.

Bar & Bench: You are also known as one of the highest paying Senior Advocates.

Neeraj Kishan Kaul: All I can say is whatever I can do, I do for them.

Bar & Bench: Your thoughts on the high fee charged by senior advocates?

Neeraj Kishan Kaul: To my mind the world over the best talent doesn’t come cheap. You have to pay for anything, which is good. But what is important is that when you charge, you must devote the time and attention to the brief. To me, it is not important what you charge but having charged how you conduct yourself is what is important. You can’t charge a hefty fee and then not read your brief, have a 2-minute conference and not land up for the matter and then send a bill. That to me is a bigger concern.

Also every senior must devote a part of his time every month to pro-bono work. I will be very happy if they institutionalize the system where seniors are regularly called upon to do pro-bono work.

Bar & Bench: What advice would you give to young lawyers?

Neeraj Kishan Kaul: It may sound clichéd but the only thing I can say is put in the hard work, be diligent and patient and prioritize what you want to do.

I don’t know any city like Delhi where you can come from any part of the country and prosper and thrive but you have to have patience. There will be frustrations, there will be insecurities, and there will be uncertainties, which are inherent in this profession. There are enough first generation lawyers I have seen who have done much better than the people whose parents were in the profession or in the judiciary, by sheer hard work, patience and dedication. By and large if you have taken a straight path, I don’t think you can go wrong; and also learn to enjoy life with it.

Bar & Bench: Any interests other than law?

Neeraj Kishan Kaul: My mother and my grandmother used to sing. My wife sings. So I have grown up in a family obsessed with gazals, thumris and classical music.

Bar & Bench: Do you think senior counsel are concerned about improving the quality of the Bar?

Neeraj Kishan Kaul: I think some are. I can’t say that about all of them but, yes, there are senior counsels who have been very concerned about the Bar.

Bar & Bench: Have you contributed in any way?

Neeraj Kishan Kaul: My very, very small contribution is that I have tried to the best of my ability to always keep my chamber open for youngsters to come and work. I have tried to look after them while they are with me; to make their entry into the profession smoother, give them that confidence, teach them whatever little I know and more importantly have that relationship with them which is not just of a junior and a senior, a relationship of someone who belongs to your family. That is the ethos I have tried to cultivate; how successful I have been is not for me to say.

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