The art is to know and to give what the judge wants: Senior Advocate Siddhartha Dave [Part 1]

In the first of this two-part interview, Dave speaks about his entry into the profession, what it takes to be a good friend of the court, and more.
The art is to know and to give what the judge wants: Senior Advocate Siddhartha Dave [Part 1]
Siddhartha Dave

Perhaps as a sign of faith in his ability to assist it, the Supreme Court has appointed Senior Advocate Siddhartha Dave as Amicus Curiae in a number of matters of late.

Dave, who began his career practicing before the apex court, has had an illustrious career in the field of criminal law.

In the first of this two-part interview with Bar & Bench, Dave speaks about his entry into the profession, what it takes to be a good friend of the court, and more.

What prompted you to study law?

I come from a family with a legal background. My grandfather had a law library, which was my favourite hiding place. I grew up seeing people in lawyers' attire going to court. Every dinner had a group of lawyers and that one non-lawyer at the table would be a Professor of Law in Allahabad University. So, yes, that was the inspiration.

Even if I were in my hometown Allahabad, I would have still become a lawyer. There's no doubt about that. I have no scientific acumen, so that was out of the picture. I never pretended that I wanted to be an engineer or a doctor. I am a zero in those fields.

How were your days at National Law School of India University, Bangalore (NLSIU)?

I studied at a boarding school - Doon School. So, the transition to NLSIU was very easy. We at NLSIU were very privileged because we had Ram Jethmalani come and teach us Evidence Law for some time and he was a thousand times better than any professor.

We had Justice ES Venkataramaiah give us an overview of constitutional law. Prof Madhava Menon brought in all those people to generate interest among students. I am not sure how it is now, because I have really not been back in college and I don't have any interaction with anyone from there.

Do you give preference to students from NLUs when you select juniors for your chamber?

Not at all. I have not had a single junior from NLS. I think I had one intern from there. There are other colleges and people who are less privileged in life. Everybody should be given opportunities.

Why should I violate Article 14 and pick people and products only from National Law Universities as a lot of law firms do? Just because a person didn't get through a competitive exam depending on their mood or mental framework on a particular day doesn't make them any less or more than a National Law University graduate. All the same, I am not berating my alma mater.

Did your father and grandfather being members of the legal fraternity make things easier during the early days of practice?

I started my practice directly at the Supreme Court. Of course, my father never practiced law. So there was a big divide between the time that I joined the profession and when my grandfather stopped practicing. He in fact stopped practicing before I was born. I came directly to the Supreme Court, and rather foolishly, because of those idealistic notions that ‘I will do something great in Delhi’.

Allahabad was a small town. Having grown up in Bangalore and other places, Delhi was more cosmopolitan and more suited to the kind of life that you want in a city. To answer your question, yes. It does help because you are given a setup. It did not help me because there was no setup in my time.

You have worked with Senior Advocates Kapil Sibal and Dushyant Dave. How different are their working styles?

A few months after I joined Mr. Sibal’s office, he became a Rajya Sabha member. I used to go to Parliament with him. One day, he strictly sat me down and said, “Listen son, you have to learn the law. So you find somebody.”

Then I joined Mr. Dushyant Dave, who is not related to me. It was a good experience for me, because working with him taught me how to read a brief and how to prepare a matter. Mr. Dave had a roaring practice.

The working styles of Mr. Sibal and Mr. Dave are totally different. Mr. Sibal used to make short notes and kept developing the same while addressing the bench. There used to be quite a bit of reliance on the briefing lawyer as well.

Mr. Dave would prepare everything. Of course, those were different days. There was no SCC Online then. So we needed to keep an annual register in which we had to note down all our favourite cases.

How important is trial court experience for young lawyers, especially those who want to practice on the criminal side?

You are asking the wrong person because I have had zero trial court and High Court experience. Every court has a different way of operating. So, what is important in a trial court might be of no consequence in the Supreme Court. You can go on hammering a particular procedural point, but the Supreme Court might just brush it aside and say ‘we are not bothered about this’.

However, the only advantage I think if you start in the trial court is that you get to appear sooner than in the Supreme Court. The age gap between say the magistrate and the lawyer might be less, because you see if you're appearing before a magistrate, you are 23, and the judge might be 29.

Supreme Court practice is largely a practice of SLP admission. 80% of Monday and Friday briefs (miscellaneous days when matters come up for admission) are dismissed by the Supreme Court. So, 20% of what goes in/gets admitted for a particular day is shared by all the lawyers who practice before the Supreme Court.

So the art is to know and to give what the judge wants. This is what you learn from genius lawyers. According to me, Fali Nariman is the greatest lawyer I have ever seen. He knew the art of giving the judge exactly what he/she wanted.

You have appeared in a number of cases as Amicus Curiae before the Supreme Court. How has that experience been and what are the things an Amicus Curiae has to keep in mind to fulfil his duty as a friend of the court?

Firstly, you have to prioritize all Amicus Curiae matters. If you are an Amicus, it is your first duty and that matter should be given precedence over other cases on that particular day. An Amicus should not take an adjournment unless he is physically unwell to appear. Second, an Amicus Curiae should always be prepared. Third is integrity, because a lot of Amicus matters are politically sensitive. The Court is relying on the Amicus very much like an extension of itself.

On a lighter note, do you think that becoming an amicus is a loss making venture?

Yes, it is. It can get you stuck. I mean, I remember Justice UU Lalit became an Amicus in the TN Godavarman matter in 1998 and continued as one till his elevation as a judge in 2014. Not once did he miss it as an Amicus; he would always be there always for that matter. So my request to young lawyers is if you are appointed an Amicus in a particular matter, please don't take up any other work on that day.

What is your take on the exercise of suo motu jurisdiction by the top court? Do you think certain principles need to be laid down to guide the Court in such matters?

The Supreme Court has wide powers under Article 32. In matters of egregious violations of human rights, certainly the Supreme Court could and should take up issues suo motu.

The case has to be at a startling level, because ultimately, the judiciary - especially the Supreme Court and High Courts - are the only structures that stand between the citizen and the government. Eight people die in India and we don't think much, but eight people die in Germany or Britain and it is a cause of protests. That said, now there are many people who are in this business of filing PILs even before an incident has occurred.

Recently, a statement was made that the Supreme Court is running real estate companies. How do you think the Court should intervene to ensure justice in corporate matters?

The Supreme Court would not have intervened but for thousands of home buyers who had been duped. It was reacting to the anguish of those home buyers. They're not strictly running it (real estate companies). For example, they are doing tremendous work in Amrapali and houses are going to be delivered by 2022-23. The Unitech matter is a slightly different case.

They're not running it. It's not that the Court has planted itself as the Board of Directors and started taking the decisions. Their orders were all due to extraordinary situations.

What impact has the COVID-19 pandemic had on lawyers?

Law is a profession in which we learn a lot by observing. The pandemic has stultified the learning process of young lawyers since they do not get to observe what is happening in courts. Young lawyers have missed two years of not going to court, which are two years of the learning process.

This is the first of the two part series.

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