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A civilian once asked Chief Justice Bhandari (of the PEPSU High Court) –
Sir, the police arrests an individual on the basis of a single suspicion, but the courts sometimes release an accused on the basis of the same single suspicion. What sort of justice is this?
Justice Bhandari answered –
If there is a theft in your house, will you catch someone on the basis of doubt or will you wait for the entire proof to be in front of you? But a judge cannot convict only on the basis of a doubt. The judge needs more than a doubt and conclusive proof that a person committed the offence.
This is Senior Advocate RS Cheema being himself.
A former economics teacher with a voracious appetite for books, RS Cheema easily slips into a storyteller’s guise, be it while arguing in court or giving an interview.
Special Public Prosecutor in the Coalgate scam, RS Cheema says that he no longer has the time to read and write articles. But this is not the first time he has been made SPP; he was also the SPP in the Sikh riots case.
“It’s a honor to be recognised by the Hon’ble Supreme Court, although I am not primarily from the Supreme Court or the Delhi Bar”.
RS Cheema refuses to talk about the Coalgate scam as the matter is still in trial stage. He says,
“I did not even know I was being appointed as a SPP. My wife was surprised to hear my name in the news and she jokingly commented that at least she should be told about these appointments and not have to find out from the media!”
Since Coalgate is a not a topic of discussion with RS Cheema refusing to go into the details, we go back to his early days, the time when he decided to take up law, and practice on the criminal side.
Hailing from a family of lawyers, RS Cheema says that initially he resisted the idea of becoming a lawyer. He was content teaching economics in Karnal (Haryana).
“I was teacher of Economics and later I had a tiff with the management on a question of principle after which I decided to do quit and take up law.”
In the year 1977, RS Cheema enrolled at the Bar. It was a decision that would change his life.
“My father was a lawyer too, but i did not work much with him. I worked with a Former High Court Judge, Ram Singh Bindra for a short while.”
Interest in Criminal law
RS Cheema is one of the most sought after criminal lawyers in Punjab & Haryana High Court. His initial days in the profession though, were spent on all kinds of cases (“whatever came to my table”).
“My father was practicing on the criminal side, so initial work came from there. There are host of other reasons – you start getting recognized for your work in a particular area and second could be vacuum in the bar on the criminal side. For me the special thing to practice criminal law was I have a lot of interest in literature – which I think is very important to practice on this side of the law.”
With a wry smile on his face, RS Cheema says that he has even won cases using the short stories of Guy de Maupassant.
What would he have have done if he was not a lawyer, RS Cheema quickly says that he would have continued to be a teacher of Economics. Quoting French Economist Thomas Piketty’, one of Cheema’s favorities,
“In today’s world, you cannot be independent till you have a certain foundation of financial security”.
Becoming a senior
In 1991, fourteen years into the profession, RS Cheema was designated a Senior Advocate. Back then, the designation procedure was fairly simple. Two people would recommend an advocate for designation, and the said lawyer would simply sign a letter stating that he had no objection to being considered for designation.
Since then, things have changed. Ask him about the current method of designation, and his dissatisfaction is evident.
“I think the system of Senior Advocates either has to be radically changed or scrapped altogether. It has become an exclusive domain of the Court, and is increasingly being used as a favour or largesse. The unfortunate fact is that, some appointments these days indicate a sense of arbitrariness. Merit as a criterion seems to be missing in some of the appointments. Nowadays, designation is being used as a stepping stone to elevation to the High Court.”
Nowadays, designation is being used as a stepping stone to elevation to the High Court.
He gives an instance where an advocate’s application for designation as a Senior Advocate was rejected and the very next month, once one of his family members became a High Court Judge, the very same advocate was designated.
“There are several instances like these and therefore there is a need for a transparent system.”
Stint as Advocate General
RS Cheema was appointed Advocate General in 2005, a post he enjoyed for almost two years. And when he talks about his time as AG, the reason for the short stint becomes a bit clear.
“I was ruthlessly independent. I found it very educating, I would have missed something if I had not taken the post although I was very reluctant. You get to see how the government functions. If today I have to answer why and where does the system fail, that stint would be one of my teachers.
Today Advocate Generals are not used to advise but are used to do fire fighting. A politician tells him ‘please bail me out’ and then again next morning ‘bail me out’. He is not consulted before the event but after the event (laughs). There is a steady decline in the way we appoint Advocate Generals and the stature of the people who are now adorning that office.”
The Collegium system – “The tendency has been to select your favourites”
“I think where we have failed is [in] our moral fiber. If the Judges on the collegium are fair and objective and if their integrity is beyond question then I would have preferred the collegium system. But the tendency has been to invest in the Bench with your favourites for years to come. The NJAC may also, in a way, have the same concerns. We need to introduce more methods of transparency and checks and balances.
I feel we as a country have not reached a stage where we can have public debate like America. Indians are not absolutely objective in public debates. I feel, for us, a suspicion is a doubt and a doubt equals proof in normal parlance. Therefore, we need to be more cautious before we introduce a system of public debates for these appointments. We need to evolve a system which suits our society.”
Too opinionated to be a judge
RS Cheema was offered a judgeship but refused. Why?
“I have very strong opinions. I am fiercely secular and I am an egalitarian and a socialist. So I thought I would either be called an opinionated judge or I would have to be silent on issues that I don’t like.”
“The job of the advocate gives me lot more intellectual and political independence. While I have represented all shades of people but I have not represented people who according to me profess communal ideology.”
Changes in the Judiciary
We move on to ask him about the huge pendency and the changes that are required in our judicial system. RS Cheema feels we need to immediately bring three changes to improve the judicial system.
“First, there should be an All India Judicial Services exam along with suitable amendments in law for consideration of elevation of very competent people at different stages. The intellectual deficiency is stark.
Second, nobody should serve in his or her own state and the needs of the judges should be taken care.
Third, we have made the elevation of session judges a routine promotion of clerks. In actual functioning we have a system where a session judge who doesn’t have a taint in his career must be elevated. In effect we have reduced elevation to a promotion where seniority is the criteria.
He concludes by saying,
“Law does teach you to work very hard. Second thing about law is that this is the only few professions where you can be truly independent if you are not too greedy. I have been able to do what I wanted to and say what I want to. Third, practice of law is constant process of education.”