Many judges have not seen the ground situation; have a hampered perspective: D Nagasaila [Part II]

In the first part of the interview, Advocate D Nagasaila spoke about how she persevered through the legal profession despite being a first-generation woman lawyer from another state, the legends at the Madras Bar who inspired her, and more..In Part II of this interview with Bar & Bench's Ayesha Arvind, she talks about being labelled as an "activist" lawyer, the lacunae in Indian environmental regulations, why judges often lack perspective and more..Edited excerpts follow..Ayesha Arvind (AA): How difficult or easy was setting up your own practice in Madras?.D Nagasaila (DN): Three of us - Suresh (her husband and lawyer V Suresh), Sudha Ramalingam (lawyer and activist), and I began working together initially. Because of whatever credibility that we had earned in the initial years of our practice, or the fact that we were publicly active people, we started receiving matters related to prisoners’ rights and civil rights at that time. We were also active with People's Union for Civil Liberties (PUCL), so we began getting maters of civil rights, labour and also eventually environment matters started coming to us.Those were the early years of environment law. It seemed like a natural progression, because the people who are harmed by pollution or affected by these big projects are the poor..AA: Were there any cases of breach of environmental norms that left an impact on you when you were studying law?.DN: In 1985, the stretch of Kamaraj Salai leading to the Marina Beach in Chennai witnessed a month-long protest by fishermen, which ended up in police firing, leaving five of them dead.There used to be a Beach Walkers’ Association at the time, consisting of people who used to go for morning walks along the Marina Beach. They suddenly decided that the kattumarams (catamarans, or the wooden rafts used as fishing boats by locals) and the fishing nets were ugly and hence, should be removed.These beach walkers were apparently influential and they had access to the right people. So, overnight, orders were issued to remove the kattumarams and the fishing nets from Marina Beach. And then there was a massive agitation because obviously, the fisherfolk are the original inhabitants of the area.You can see a parallel to that today in the Loop Road matter that the High Court took up suo motu.A petition was then moved before the Supreme Court saying that the fisherfolk have the first right to the beach. The plea said that while walking along the beach was a leisure activity, for the fisherfolk, this was a livelihood activity and one has to prioritise livelihood over leisure. The Supreme Court appointed the State Legal Board to assess the loss that had been caused to the fisherfolk. The Board asked for volunteers and some of us, including me, volunteered as students.We went from house-to-house recording their stories..In the fishing community, there is something very interesting. It is the men who go out to fish and the women who sell the catch. So, the women are entrepreneurs who take the catch from their partners or go and buy the fish caught by other fisherman and sell those. And fishing is a collective activity, never an individual activity, because one doesn't go fishing alone, and one needs help pushing the boats, casting the nets etc.When you are assessing the damage that has been caused by the process, you can't just think about the loss of fishing nets or the boats, but you have to actually take into consideration the loss of livelihood that the women too have suffered.These are examples of the very nuanced understanding I got, which otherwise I would not have received within the walls of a classroom. So, today if I am taking on a matter like the Loop Road, it is this learning that I received back in the day that will give me a better understanding of the issue.And it is important, because I feel one will be doing great injustice if one took up an issue without understanding its socio-political and economic context and nuances..AA: How adept are the existing laws in India at comprehensively dealing with environmental concerns?.DN: There are two ways of looking at it. From an era when we had no laws around the environment and when there were no systems in place, to now, we have come a long way as we have checks through the Environmental Impact Assessment (EIA), the Coastal Regulation Zone (CRZ), etc.However, the problem is that all of these procedural checks are by way of executive notifications and not through legislation.The Environment (Protection) Act, under which all these notifications have been issued, is sort of an umbrella Act. These executive notifications can be changed anytime, or be taken back. That is why we have seen so many amendments to these notifications. If you want to amend a law, it would have to go back to Parliament and a proper discussion would be required. However, these executive notifications can just be changed overnight, so to that extent, I think we still lack in terms of a very strong environmental legislation.If you come to the enforcement of the existing environmental laws and checks, the situation is again similar to what happens in implementation of labour laws and laws on civil liberties.The implementation is absent to a major extent.For instance, if you are looking at the EIA notification, you will see that you are supposed to undertake such assessment before a project starts; it is not a post facto thing. You are required to assess what is the kind of impact the project will have on the environment even before it is set up. In reality, however, this rarely happens.The problem with environmental matters is that once the project comes up and later on it is found that the project was not legal or should not have come up, a lot of money and time have already been invested. Pollution has already happened, the water and soil have been polluted, and there is no possibility of going back to ground zero. And all of this has happened because your decision-making process was faulty to begin with.A lot of lip service is paid in terms of a sufficient mitigation, sufficient safeguards, pollution mitigation, planting new trees etc, but a lot remains to be done..AA: How aware and conscious are the courts today when it comes to environmental rights?.DN: When it comes to the courts or the judges, it is not merely about their expertise, because ultimately the lawyers are there to present the case and assist them. What really matters though is their perspective.Often, courts tend to lean towards the industry, because industry is perceived to be related with development. People who challenge a project citing breach of environmental norms are seen as anti-industry, or they are essentially seen as trouble makers. They are seen as people who are preventing development.For instance, if you file a case against a thermal power plant, the first thing they (courts) will ask you is, “Oh, so you do not want electricity in your house? Or, do you not want air conditioning? Oh you want all that but you will still oppose the thermal power plant?”This is a very superficial kind of engagement, because of a lack of perspective..Again, this brings me to what I said earlier about a lack of field exposure. So many of the judges today can’t look beyond the chambers. So many of them have never actually stepped out into the real world, they would never have interacted with the communities, or seen the ground situation. So, they (courts/judges) get a very filtered reality.And I feel that such filtered reality hampers your process or your perspective. Because, then it does not matter how much data a party cites in the court. Since it is not a reality that the court or the judge can visualise, and it is not a reality that they have ever confronted, they will still feel that you are exaggerating, or that you are unreasonable.They tend to label you, because for them, lawyers like us are all activists or communists..AA: Does this sort of labelling by the courts or the society ever intimidate you?.DN: Fortunately, as I said earlier, I have had role models and mentors who have inspired and enabled me to hold my ground.KG Kannabiran (late civil rights activists and lawyer), who is one such person, and whose photograph you can see in my office, always used to say that even he used to be labelled as a naxal lawyer, because he used to appear for all these all these people who are labelled as naxals. Or maybe they were actually naxals, but their cases before the courts involved issues of human rights violations, which is a constitutional issue.But Mr Kannabiran was never called a constitutional lawyer, he was called a naxalite lawyer. He would say that when a well-known lawyer appears in court for a tax evader, does he become a tax evading lawyer? Or someone who appears for a smuggler or a money launderer, does that lawyer become a money launderer himself? No, they are never called any of those names..When you appear for the marginalised, you are labelled, and such labelling also somehow becomes a barrier to actually openly receiving the arguments that are being made.The court or other parties then find it easier to justify their stands by saying that they are communists, they will always talk like that, or these people are ‘green’ and environmentalists, and they will always find ways to oppose a development project.What is problematic though is that such slotting of a lawyer within these brackets and imposition of labels get etched in one’s minds and at some point, what you say just gets pushed aside because, it is always received with that kind of filter.Whereas, a corporate lawyer or someone whose law firm has a high turnover, is perceived as successful even if he or she has hardly contributed to the development of the legal profession or to the advancement of legal principles and constitutional arguments..AA: I read an article where it was mentioned that you are among the very few lawyers in Chennai who still charge ethically by the case and do not demand exorbitant amount just because a client can pay that much..DN: When you compare Madras to say Bombay or Delhi, I will say the fees in Madras is still very conservative. But of course, it is slowly catching up. What we are also forgetting today is that the legal profession is different. It is very much like the medical profession where somebody in need of healthcare cannot be denied the same merely because they cannot pay for it.Since lawyers are tools or instruments for accessing justice, if they become expensive, then who is expected to the able to access justice? We, as lawyers, will not be fulfilling our constitutional role if money becomes the barometer we use each time to decide whether to accept a brief or not.I don't know if we (lawyers who do not overcharge clients), are becoming a minority or if we are a very small tribe of people, but Madras does have a culture where people will still think that it is important that one’s access to justice is not impeded by one’s financial ability or inability.During my initial years, I worked at Row and Reddy. There was never a moment when the fee was the concern. All of us youngsters picked up these ethics. Mr NGR Prasad was very particular that when a client came to us with an issue, we all immediately think about how to get it redressed in court. Payment was always secondary. So, one never stipulated the fee, and it was never like unless you put the fee down on the table, we will not start work.Very often, you started work and then the clients would say they didn’t have any money to pay us. Or, sometimes, they would pay you ₹1,000 and quietly come back and ask, “Can we have 500 rupees back?” Because they realised they had no money to go back home, they had no money for bus fare etc. But in their head, you know, they think they paid you ₹1,000 worth of legal fees.Since my entry into the profession, I have worked with lawyers for whom the fees was not a concern. And I picked that up.Even today, stipulating a fee is still a kind of an embarrassing issue for me. Because of all of that, I still believe fees should not come in the way of litigants being able to access justice..AA: Doesn't that create practical difficulties when it comes to running a home and an office?.DN: It does. Sometimes, we also get taken for a ride. People will come with sob stories because they know we are the kind of people who will take up the case even if they say they cannot pay. They know we will tell them to pay later or pay in instalments. But then again, you can't start thinking about these things and stop taking up matters..AA: You have also consciously stayed away from the Senior Advocate designation. Why?.DN: Actually, none of us have applied for the Senior Advocate designation. Whether it is Suresh, or Mr Prasad, or myself, we have consciously chosen to stay away. There is nothing wrong with the designation, but I feel applying for it, having to get the Court to vote for it etc, will undermine my independence as a lawyer.I will need to be nice to a judge if my application for the senior designation is going before them. So to that extent, I may not be able to espouse my client’s cause. So, that way we all very zealously guard that independence.Just as the judiciary is supposed to be the bulwark against the executive and the legislature, I think the legal profession is equally that. Will a lawyer be independent if all the time you are so worried about a judge getting miffed, or of taking on an unpopular case and losing your place in this hierarchy?Besides, when you are appearing for the poor or the marginalised, they can't even pay us for one lawyer. And now, if you tell them they have to pay for two - for the junior and for me - and that I can't meet them without a junior, you are increasing the burden on the client.Though not everybody follows it, if you become a senior you need to go by the Rules and you are not supposed to meet clients directly. And given the clientele we represent, it just doesn't make sense..AA: You have spoken extensively about the education and exposure you received outside of the classroom as a law student. Do law students today receive the same level of exposure to field work?.DN: Today, such exposure to ground work rarely goes beyond the NGO placement which happens during the first two years in law colleges. But that is seen as a ritual merely, and there isn’t any structured mechanism that consciously exposes students to this kind of reality.Actually, there never has been a structural mechanism for such exposure in law colleges and even my own exposure was accidental.But what would help is something similar to what schools of social work do, where they send students compulsorily for field work. That ensures that the students meet real people, get acquainted with real issues in the society.The case papers will give you a very different sort of an understanding of an issue from when you actually go outside in the real world and meet those affected by these legal issues. The case papers alone will not give you the full picture.I feel you tend to value the common litigant more when you see what they are facing. Because otherwise, sometimes you tend to be very dismissive. The other thing is that when you see something yourself and are convinced of it, you will be able to give a better picture in the court room.Even today, if I am not convinced of any issue, I do not take that matter, because I know that I won't be able to do full justice to it. I know that I will not be able to espouse that cause as effectively as I should. So, it is better that the client goes to some other lawyer who will be able to do a better job..AA: How do all of you stay inspired?.DN: There is a lot of hope. I am not a person who is pessimistic about it.We have definitely come a long way in terms of the number of women in the profession, as lawyers and as judges both in High Courts and the subordinate judiciary. This is definitely encouraging.Also, the fact that many more people from all sections of the society are aspiring to, and actually joining the profession. This too, I think is a very good sign.A greater number of people are coming to courts for redressal and are still reposing their faith in the courts. That is something which is very positive. Of course, then the responsibility on the judiciary to live up to the expectation becomes greater, to ensure that people do not get disillusioned.There is a legitimate concern that like in the rest of the society, there has been a lot of deterioration even in legal professional practices. There is definitely a need for regeneration in values and ethics as a whole. There is a lot to be remedied and that introspection should come from within the Bench and the Bar. In fact, I believe that the Bar should start that introspection.There is a lot of concern and corridor exchange about deterioration of standards, and I think we still have not got our act together, perhaps because we are yet to reach our threshold. This is not something that can be remedied by one individual and you require collective action and a collective consensus.I am told that maybe 100 or 150 years back, the New York Bar had undergone a similar state where the ethics had really fallen down and then the bar association took it up.Perhaps something like that is required in our courts as well. So that same major work in terms of revamping the profession and looking at ethics and calling for accountability from every member is done.Besides, in a situation where the executive and the legislature are continuously failing the people, the judiciary is often a last resort for the public. It is something that gives them hope and that must not be lost.Hopelessness is not an option.