A veteran with 39 years of practice under his belt, Senior Advocate Anil Khare is perhaps the most sought-after criminal lawyer at the Madhya Pradesh Bar.
In the recent past, he has been in the news for securing bail for a number of accused in the Vyapam case, and for having face-offs with judges on the administrative side.
In this interview with Bar & Bench's Debayan Roy, the outspoken senior lawyer expresses the need for immediate amendments to criminal laws, why he declined invitations for elevation as a judge and his take on judges attending conferences.
Edited excerpts follow.
Debayan Roy (DR): Do you enjoy the tag of being the best criminal lawyer in Madhya Pradesh or does it come with a lot of responsibilities?
Anil Khare (AK): First of all, I am thankful to all of you. In fact, it is not the question of a tag. The satisfaction comes from within itself. One who enjoys the work is satisfied. So any tag hardly matters to me. I keep on working day and night, that's all. My entire satisfaction is with the accomplishment of the work and labour that I have put in, my commitment, my honesty.
DR: There is this one question which every lawyer mulls over in their initial days of practice - civil law or criminal law? How did you choose one?
AK: If you are practicing on the civil side, then of course you should know how to draft a plaint, how to frame issues etc. If you’re working on the criminal side, then of course you should have exposure and experience with the trial courts. Unless you have exposure to the trial courts, I don’t think any lawyer who is working on the criminal side can really excel.
The second is the Criminal Procedure Code. Every young lawyer should really understand the Criminal Procedure Code. He should understand what the trials are, what are the summon cases, what are the warrant cases, what are the sessions cases, what are the summary cases.
So I always say for a young, first generation lawyer, or any lawyer - start with the criminal trials...understand the criminal law before the trial courts. Merely reading from the books is not sufficient.
DR: As a first generation lawyer, how difficult was it to make it as a lawyer? Do you agree with the notion that nepotism runs deep in this profession?
AK: I think it is not required that generations should be there to become a good lawyer. As far as nepotism is concerned, I would not use the word 'nepotism' in fact. I put it slightly differently. Nepotism is when they are favouring someone for some reason....The better term would be where I have an 'affinity' towards someone for some reasons. Maybe I may have an affinity with my daughter, she is my daughter, she is doing well. If I had been a judge, I would have an affinity with my young junior saying that she was doing very well.
DR: You are known to have had face-offs with judges a number of times on administrative issues. Does it hinder your practice?
AK: I don’t think your legal aggression or your outspokenness gives any hindrances to your legal practice. You should be prepared with your matter. I don’t think any judge can harm you. To come out openly is a requirement of the honest part of a lawyer.
We, I always say we have good people more in number. Jo gadbad log hai voh thode se hai (There are only a few problematic people). They are very less in number but they overshadow us because the good people are not saying anything. Occasion arises when we are required to come up, we are required to fight for the institution. Not only for the cause of the lawyers; it is the question of presenting the rule of law and fighting for the cause of justice.
At one point of time, there was an order which was passed by the district judge saying that all cases of acquittal would be examined by the vigilance officer. I was the President of the Bar Association at that point of time. I raised an objection to this. Immediately, the Chief Justice AK Patnaik recalled that order.
You can’t just wait and watch. Rise to the occasion, fight for the cause. Fight doesn’t mean you are required to scold a judge. You are required to raise a cause which is really justified and legal. This is the duty every lawyer owes to this institution. Rise to the occasion. Don’t be a silent spectator.
DR: What is your take on the sealed cover jurisprudence that has become a routine practice in courts?
AK: I don’t agree with it. Why sealed cover jurisprudence? See, if we go by the Magna Carta 1215, right to liberty and property was required way back then. Article 21 (of the Indian Constitution) is the backbone. You say that opportunity is required to be given. When you say this, why this hanky-panky job of sealed cover? Put it openly. Let the other man also know what is against him or what is going to come up against him.
DR: What is your take on the system of Senior designations?
AK: For the first time in 2012, when I was designated, a new process came into effect. A 10 lakh income tax slab was created, and there was a individual voting with a secret ballot.
After the Indira Jaising case, things have changed now. I still say that Senior designation is an honour which is required to be cast upon a Senior Counsel, if you recognise his work. Let the High Court designate.
A Senior Advocate is like an ambassador of this High Court. Say for example, when I go to Uttarakhand or Uttar Pradesh, I take the name of this High Court along with me. Thus, such conferring can be done by honouring that man, bestowing that upon him by the full court.
DR: In your opinion, which laws are most misused in our country by litigants and lawyers to derive unjust benefit?
AK: It is the Evidence Act. This is because witnesses are involved. The evidence is involved. So that is the main act which can be misused by the lawyers or by the litigants. I think a good lawyer would not misuse it. One who is really practicing law. He would go by his ability with his understanding of law.
Apart from this, the law of Sedition is being misused. Not by lawyers, but by the investigating authorities.
DR: The Central government has started the process of amending the IPC and CrPC. Do you think this was needed?
AK: A very urgent need is [to look into the laws governing] search and seizure which are being conducted by the police. All these searches, all these seizures are done while sitting in the office, and getting signatures of two panch witnesses. I say that whenever a search is conducted or a seizure is effected, it should be recorded. The longitude, latitude, everything should be there. That is required to be generated.
Today, I am coming across cases where narcotic drug seizures are made in the police station. They show interception at a particular point of time. The installation of CCTV cameras has been well taken care by the Supreme Court, but how many police stations are really equipped? When we make an application [to procure the footage], they say it was not working. Why it was not working? Can you just flout the orders of the Supreme Court?
Secondly, there is a proviso which has been added to sub-section 3 of Section 161 CrPC. It says that audio and video recording can be done for a statement which is being recorded. Now this is just contradictory to Section 162, I would say. 162 puts an embargo on a statement recorded in writing to be signed. Now what was the intention behind it? It was so the witness may not be bound in the court with the previous statement. That was the reason. Now if you audio and video record it, then the purpose of 162 is frustrated.
DR: What is your take on the reformative model of incarceration? Do you think it works? Should the death penalty remain on our statute books?
AK: The reformative model may work to certain extent, not always. It will all depend upon the psychological balance of the man. So every sinner has a future, but it would depend on the psychological balance of the person; it cannot universally be said to be correct.
As far as my view is concerned, death penalty is required to be wiped out. In life imprisonment, no future, nothing is there. So why to put a man in the gallows? He dies his own death, nothing is left with him.
DR: Would you ever consider accepting elevation to the Bench?
AK: I have got occasions. Thrice I was asked.
DR: Which are the years? Why did you refuse?
AK: Justice Rafat Alam was the Chief Justice in 2010-11. Before that, Justice AK Patnaik. I declined not for any extraneous reason, the only thing is I thought that it is better for me to serve the institution from this side. I was always vocal, always outspoken, thus probably my voice might have been curtailed sitting over there.
DR: Your voice would have been curtailed on the bench?
AK: Judges do not have a platform. Where do you speak? Except for the judgments or the orders. I don't think judges are required to come to a conference or give an interview to the press. I don't appreciate that. Whatever you could have said is through a pen, in the judgments.
DR: But these days, judges are appearing in a number of conferences, sometimes five in a week.
AK: They should not. I don’t think they should appear. They are required to be aloof from all those things.
DR: Is this a message to the Chief Justice of India?
AK: Yes. I say judges should not go for interviews. They should not appear in the media. They should not share a platform with political authorities. I am giving a very blunt statement...I won’t say that they are not human beings, but there are certain areas where they should exercise restraint.
DR: It has become a common practice for the Law Minister of the country and the Chief Justice of India or the Law Minister of a State and a Chief Justice of the High Court to share a platform together for an occasion.
AK: I don’t think it is required...Everything can be done through papers. Why is it required? A platform, a big board, a mic is required? I don’t think so. I opted never to become a judge for these reasons. I would have been the last man to go for all those things.