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Jayant Bhushan started his practice in the year 1986. He was designated Senior Advocate by the Delhi High Court in 2003 and currently practices in both the Delhi High Court and the Supreme Court of India.
In this interview with Bar & Bench’s Murali Krishnan, Jayant Bhushan talks about why he chose law despite clearing IIT, his views on the state of legal profession, and his take on other issues concerning the Bar.
Murali Krishnan: You grew up in an atmosphere of law. Was law an automatic choice?
Jayant Bhushan: Law was not an automatic choice. I think I decided [to do law] reasonably late. I was good in science but I did not like Biology. So I wrote the IIT entrance exam and I got through with a reasonable rank.
At that stage, I had a long conversation with my brother and a few cousins. My brother had gone to IIT and come back after 6 months because he did not really enjoy engineering. Ultimately, I decided that engineering was not something that excited me. But I still did not know what I wanted to do.
So after class XII, I did an honours in mathematics from St. Stephens. The real reason for doing that was because I wanted to keep my options open. I was not sure what I wanted to do. By doing mathematics, I was keeping my options open. After that, one can do Economics, management or law. It is only during the third year of my graduation that I decided that I was fairly interested in law. So, Law Faculty happened after that.
Murali Krishnan: A lot of your practice is now in the Supreme Court. As someone who has practiced in Delhi High Court a lot, how do you compare the two courts?
Jayant Bhushan: The Bar in Supreme Court is definitely way superior to the Bar in Delhi High Court. That does not mean that the Bar in Delhi High court is not good. The Delhi High Court is one of the best High Courts in the country. The judges in the Delhi High Court are outstanding; And the Bar is also very good for various reasons. Delhi is the capital and so there is a lot of ‘high stakes’ litigation. Moreover, lot of good lawyers from various parts of the country move to Delhi. So, the Bar in the Delhi High Court is very good.
But there is no comparison with the Supreme Court. The Bar at the Supreme Court has lawyers from all over the country. And in the recent past, a large number of very competent lawyers who have done very well in their own High Courts, have moved to the Supreme Court. Earlier, top lawyers would move to the Supreme Court only if they were appointed as ASGs or SG. That makes it much easier to come to Delhi and get a practice. Otherwise, it takes a while to establish yourself and there is always an element of chance. But in the recent past, a large number of very competent lawyers have made that move without the benefit of becoming ASGs.
Murali Krishnan: What is your take on the incidents that happened at Patiala House – was it not a reflection of the state of legal education and regulation?
Jayant Bhushan: The average quality of lawyers in our country is fairly poor. It is only a few at the top who are very good lawyers. A large number of lawyers are neither very competent nor well trained or law abiding. The reasons for that are numerous. Obviously, in the past, law was not a very preferred profession. In fact, when I joined Law Faculty, the good students would be those who had lawyers in the family. And Law Faculty is of one the best law schools in the country. There are large number of law schools in the country which are absolutely pathetic – the kind of teaching and training that happen there is terrible.
In the recent past, of course, a good number of National Law Schools have come up. So the average in terms of the number of good students coming to law might have gone up. But if you look that the number of people who get into law every year, the percentage of good people is still low. So the lack of good quality law schools and the lack of adequate opportunity for a large number of lawyers are all reasons why the average quality of lawyers is fairly poor.
That apart, there is no proper regulation in that you don’t get pulled up if you indulge in any malpractice. Self-regulation has not really worked anywhere in any field and especially amongst lawyers.
As regards Bar council, it is the larger body of lawyers who elect people in the Bar council. So the people in the Bar council are representative of the larger body of lawyers. Hence, no real self-regulation happens. A large number of lawyers may be doing all kinds of things and there is no real regulation.
Murali Krishnan: What can be done to improve this current state of affairs? BCI had recently introduced AIBE –
Jayant Bhushan: I don’t know how stringent these tests are. I am told that this exam is also fairly simple and most lawyer get through that too. So ultimately the questions is, will the Bar Council, which is elected from the larger body of lawyers, take tough decisions? Can it come up with an exam that is really tough? That would mean that a majority of law students would not be able to practice. So, is that feasible to ask of an elected body from the larger body of lawyers? I don’t think that is going to happen.
Moreover, the test only takes care of aspects pertaining to capability or training. What about malpractices and misconduct? It is common knowledge that a very large number of lawyers indulge in misconduct. Against how many of them does the Bar council take action? It is absolutely negligible. That is because broadly – not everyone – the kind of people who are elected to the Bar Councils are people who indulge in such malpractices. So, they are not going to take action against their own.
Murali Krishnan: Another issue plaguing the Bar now is designation of Senior Advocates. First it was the Supreme Court. Then similar petitions were filed in Supreme Court from Meghalaya, Kerala and most recently Karnataka. Do you subscribe to this current system of designation?
Jayant Bhushan: Whatever system is devised, there will be problems because senior designations are subjective. It is not something wherein one can add up numbers and decide who is fit to be a Senior Advocate. Whenever we have a body of people administering a system and deciding on who is fit to be a senior Advocate, it becomes subjective. And in any subjective system, there will be cases where undeserving people are designated.
I don’t think there is something very seriously wrong in the current system. However, it can be improved by laying down some basic guidelines. For example, in the Meghalaya controversy, many people who were not practising in Meghalaya were designated.
That should not be permitted. The system needs to be fine-tuned to eliminate mistakes like that. Apart from that, I don’t think there is any serious problem with the system or that there is any fundamentally better way of designation.
Murali Krishnan: The Supreme Court has been pro-active when it comes to RTI jurisprudence. However, when it comes to the Supreme Court, it takes the opposite stance and there is always this tendency to withhold information, whether it be Collegium or information pertaining to judges etc.
Jayant Bhushan: I would agree with that. I personally feel that the Supreme Court can be more forthcoming about its own information and there is no reason why it should be reluctant to share its information. I can understand that on certain aspects, which may impinge on the privacy of judges, there can be opaqueness. That apart, I think that sunlight is the best disinfectant and there should be transparency in most things including on appointments.
In fact, that was what was discussed when the NJAC case was heard. Even the Bench which struck down the NJAC and upheld Collegium system felt that the Collegium system can be improved with a little bit more transparency. So there is nothing wrong in being a little more transparent.
Murali Krishnan: In court, you don’t mind conceding something to the Bench or sometimes the opposite side, if they put forth view/point which you think is reasonable.
Jayant Bhushan: I think it is much better to concede when you have no case at all on a certain point. It is not only fair to the system and to the court, but also your duty as a lawyer. Your stature is not enhanced by arguing anything and everything and going on arguing it even if you know that it has no chance of succeeding. Your stature is enhanced by being fair to the court.
In the long run, the judges will respect you for that. Later, if you argue something forcefully they are more likely to think that, “Yes, there may be something in this”.
Murali Krishnan: Any particularly case that you remember fondly?
Jayant Bhushan: There are quite a few. The ban on bar dancers in Maharashtra where I appeared on behalf of the Indian Hotel and Restaurant Association is one case. Appearing for Assam in the challenge to the post of parliamentary secretaries, night shelters for the homeless – begharon ke saath, removal of the DTC bus depot on the Yamuna river bed, appearing for Madhavrao Kinhalkar against Ashok Chavan for filing incorrect election expenses, are some cases.
Murali Krishnan: Advice for young lawyers?
Jayant Bhushan: One advice I give to interns is that litigation can be the most exciting part of law. Unfortunately, a large number of law students these days don’t even think of litigation as a career option. Many students who come to me for internships do so because they have to do one Supreme Court internship or one litigation internship. Otherwise, they are all interested in corporate jobs.
I am not trying to put down corporate law nor have I ever done corporate law but my personal opinion is that litigation is far more challenging. There is a new challenge every day and it is far more enjoyable than possibly what corporate law can be. Therefore, give litigation a fair chance.
Bar & Bench would like to thank advocates Kartik Prasad and Aankhi Ghosh for their assistance in arranging this interview.