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Rajiv Nayar is a Senior Advocate at the Delhi High Court. Having practiced for nearly four decades, Nayar has established himself as one of the most sought-after commercial lawyers in the capital.
In this interview with Bar & Bench, Nayar, the son of legendary journalist Kuldip Nayar, chronicles his journey in the legal profession, and reveals why the Delhi High Court is the best high court in the country.
How did you end up doing law?
I got into this profession by default. I actually wanted to be a journalist, since my father was a very renowned journalist. But after the experience of his being arrested during the Emergency, and the way the Press capitulated, I thought it would not be a good idea to take up journalism.
Actually, my father was very keen that I joined the Civil Services. He pushed me to apply, but eventually, I didn’t write the exam. So, I ended up doing law.
What were the early days of practice like?
The early days were tough, not because of financial constraints, because I was staying with my parents. There was a lack of work, and a lawyer likes to be busy all the time. That was a cause of frustration in the early days. There was also a lot of competition.
I worked under a Central Government Standing Counsel for a year and a half and then I joined a Solicitor firm – Khaitan – for another year and a half. After I got one or two of my own clients, I started my own practice in 1982, after graduating in 1979.
How did the Senior Designation happen?
I had no intention of becoming a Senior, because I was doing well as a filing counsel. But there was news that I was running for Additional Solicitor General in the Delhi High Court. Thereafter, I applied for it and got designated.
What do you think of the current system of designations?
Every system has its positives and negatives. It is true that in some courts, designations were just being given for the asking. The present system which has been proposed by the Supreme Court is completely unimplementable; I don’t know how many people will get through the process. As it is, there has been a hiatus in the Delhi High Court in terms of designations. I’m not sure if the judgment will work well.
Some High Courts have allowed trial court lawyers to be designated. Your thoughts?
I don’t know if it is a correct thing, because a Senior Advocate should be a person who is very successful in the court in which he is practicing. Even if a lawyer may be very successful in the subordinate court, should he be made a Senior in the High Court, where he hardly has any presence?
How do you think the concept of Commercial Courts has fared so far?
I think it is a great concept; at least its working very well in Delhi and in Bombay. Unfortunately, the other High Courts which are supposed to implement the Commercial Courts Act, haven’t been able to. I am not questioning the calibre of a subordinate judge, but to have huge arbitration awards being tested in the hands of a subordinate judge in some district judge, I don’t know if that makes sense. The Act was intended to bring this kind of litigation to the Commercial Division of the High Court.
The functioning of Tribunals has been called into question of late, with a number of issues cropping up.
At the moment, there is some sort of disconnect between the government and the Tribunals; I don’t know whether it wants Tribunals or not. For instance, the National Green Tribunal has almost become defunct. The government is not filling up vacancies, and I think they are in no hurry; they want to make it redundant. The same is the case with the National Consumer Disputes Redressal Commission, where the Chairman and the others are continuing by the orders of the Supreme Court.
One Tribunal which is working well is the National Company Law Tribunal, and leading from the front is its President, in relation to the Insolvency and Bankruptcy Code. For instance, you have seen that companies are being reconstructed, people are bidding for them. Unlike the earlier winding up process, where you had workmen struggling to get their dues. It is a great concept, because now you are actually seeing money being pumped for rehabilitation of companies.
Have the amendments to the Arbitration Act increased ease of doing business?
I think that the 12-month rule in unworkable. There is an amendment proposed to make it 12 months from the date of completion of proceedings; I think that should be given effect. Unfortunately, what is happening now is that some of the good arbitrators are reluctant to take on new work, because they can’t comply with the 12-month deadline.
The other aspect is that people have to rush to courts to get the period extended. If the other party doesn’t agree, then no one knows what will happen.
Thirdly, insofar as giving effect to ease of doing business, there has been a complete change of trend. I have noticed over the last one or two years that the first reaction of the courts is to uphold the arbitral award rather than to interfere. You see examples like Daiichi, Cruz City, etc. Huge international commercial arbitrations have culminated in the awards being enforced.
The enormity of the dispute is not as much a concern as it used to be. You used to find that judges may be conservative to admit matters etc. The tendency now is to be more pro-arbitration and pro-awards.
Do you see India becoming a hub for international arbitration in the future?
No, I don’t think so. We are fooling ourselves to think that we can. Places like Singapore and London are far ahead. In those places, you have a complete alternative mechanism of appointment of lawyers who just specialise in arbitration, as arbitrators. Unfortunately, in India, the psyche of people is such that in 99% of cases, they tend to appoint retired judges as arbitrators, because they have faith in their integrity etc.
The result is that people get overworked; the system can’t work in that fashion. In London, there was a Queen’s Counsel who just gave up to become a full-time arbitrator. That would be very difficult here.
The High Court has got a Delhi Arbitration Centre, but it is like an appendage of the High Court. You need to follow the international system like the SIAC, the ICC etc. and then only can we compete.
You have appeared in many high-profile defamation cases, the latest being the spat between your client Arun Jaitley and Arvind Kejriwal. Do you think defamation laws in India need a re-look?
No, I don’t think so. Without this mechanism, anybody can get away with saying anything. Provision for both civil and criminal proceedings should be there. People are otherwise reluctant to institute civil cases of defamation because of the time it takes.
In the case of a common man, if his name keeps coming up in the newspapers, it is self-publicity. But of course, in the case of politicians, it is different. In Arun Jaitley’s case, he made an example and moved forward. He was lucky to get a complete apology in a short period of time.
You had also appeared for Justice Swatanter Kumar, wherein the Court ordered a media gag on the reporting of the case.
Because of the sensitive nature of the case and the personality involved, the Court restricted the media from reporting on the case. On a wider scale, I don’t think there should be any gag on the media; they should be free to report.
He was sure and he stands vindicated, but it is really difficult to determine the legitimate cases from frivolous allegations. Nowadays, it is very common to make allegations in every workplace. The law has to be fair, because we are finding that it is being exploited as well. A balance needs to be struck.
Government litigation accounts for a bulk of the pending cases in our courts. How do you think this can be curbed?
Bureaucrats should start deciding which cases should be pursued. They have this fear psychosis, so they play safe and don’t decide. Therefore, they leave the burden to the courts; everybody passes the buck to the judiciary. This process will never end; government litigation will always be there.
The advice of government lawyers may or may not go heeded, but no one will go out on a limb, because they can face the flak. For instance, even if you know awards are likely to be upheld, there are three rounds of appeals you can go through. If it is left halfway, tomorrow someone will ask why an appeal wasn’t filed.
What other measures can be adopted to ease pendency?
The first thing is that the government should start appointing judges; they are in no hurry to appoint judges. In our High Court, until very recently, it had been eight months since judges were appointed after the Collegium made recommendations.
For all his talk, the Law Minister is doing nothing. He must realise that his role in the appointment process is that of a postman. If he wants to completely overreach the NJAC judgment and put the Collegium system away, he has to think of other measures. But as long as the law stands, they have to co-operate.
Do you subscribe to the notion that the judiciary is facing severe Executive interference?
A little bit of prodding by the Executive was always there, but now I think the idea of the Executive is to become more dominant.
How has the Delhi Bar evolved over the last few years?
Over years, like Bombay, we have developed this Counsel practice. Arun Jaitley is actually the pioneer of this in Delhi. He was the first to successfully develop counsel practice in Delhi.
The Delhi High Court is said to have some of the best judges in the country. What sets them apart?
I think the judges at the Delhi High Court are the best in the country, because I do a fair bit of travelling to other states’ high courts. The competence and integrity of the Delhi High Court judges is phenomenal.
We are lucky that good people have been appointed. The same is not the case in many other courts, where people are appointed because of caste and all sorts of things. Here, we have people who actually had good practices as lawyers and left them to become judges. There has been a complete transformation in the last 8-10 years. Actually, Delhi has become the role model for the other High Courts.
Has there been occasion to not accept a brief?
Yes, there has. For instance, [Uttar Pradesh politician] DP Yadav approached me to argue the Katara case, but my conscience did not allow me to accept it. But in commercial matters, there is no question of right and wrong in terms of conscience. Having said that, cases like the Uphaar Cinema tragedy, I wouldn’t accept.
What have been some of the most memorable cases you have argued?
There have been a lot of them. It won’t be fair to single out anyone. The main thing is that even after so many years – I have been in profession for almost forty years – even now, there is the thrill of winning a case. It matters to me to succeed in a case.
What advice would you have for young lawyers?
There is a great temptation to take the easy way out amongst younger lawyers. When you are in a hurry, you sometimes make wrong choices. As a result, your standards or ethics may not be the same. My advice is that you can still succeed if you go the honest and straightforward way. You don’t have to be unethical to make money. I can confidently say that I have never breached any ethics; I have held a practice of great integrity.