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Sanjay Hegde is a designated Senior Advocate of the Supreme Court. In the first of this two-part interview, he talks about his early career, differences between practice culture in Bombay and Delhi, and more.
You initially worked for three years in Bombay. What prompted the shift to Delhi?
My father was a lawyer in Bombay. I started working with Mulla & Mulla while I was doing my LL.B.; lots of people in Bombay did that. You would either go to law college early in the morning or in the evening, and you would start on-the-job training in a Solicitor’s office. By the time you have your degree, you have a bit of a head start.
At the time, I was also writing the civil services examination. Delhi was the destination because I had got into one of the allied services. I kept that job on hold and started out in the Supreme Court.
It was almost entirely accidental that I joined my senior, who was at that time the Attorney General for India. The Partner at the firm I was working in came to see the AG to seek an opinion, and at that point of time, a couple of juniors had left his office. So, I asked my Partner to ask the AG. Mr G Ramaswamy if I could join him. The large-hearted man that he was, Mr. Ramaswamy didn’t say no to many people.
By the time I joined him, he already had a couple of juniors, so for sometime I was a bit of a spare wheel. But being the AG, he had a lot of speeches to deliver at references for the departed etc. So, I started helping him out on that side of things.
How was he as a Senior?
For even somebody with a little bit of experience, he was quite terrifying to work with. Outside court, it was a different thing altogether. If you were not called on to argue, he was always up for a meal or a drink. But when you had to brief him while coming to court in the car with him, it required a lot of preparation. He was brilliant at picking up a point even when half a sentence was whispered. He knew exactly where that fit and what context it had.
He had a spectacular sense of humour. I still remember an incident in court that Mr. [Soli] Sorabjee had recalled at Ramaswamy’s reference. The question was whether there could be more than one Election Commissioner. [Former Prime Minister] Mr Narasimha Rao had appointed two more Election Commissioners to counter Mr. [TN] Seshan, and that had been challenged. During the final hearing, Mr Ramaswamy said that the government had only one fixation – to ‘fix’ Seshan. I remember Justice SP Bharucha laughing his head off for quite some time!
There was another instance when Justice Kuldip Singh turned to my senior and said,
‘Mr Ramaswamy, do you think we are fools sitting up here?’
In private life, my senior had a good relationship with Justice Singh, so he could afford to smile at him and say,
‘Your Lordship has put me in a difficult position. If I say yes, it will be contempt, if I say no, it will be perjury!’
He was a great reader of the court’s mind and was phenomenally talented. But being a widower, he was somewhat undisciplined, and that probably contributed to his relatively early death at the age of 70.
What are the differences you noted between practice culture in Bombay and Delhi?
In Bombay, as well as in Calcutta, there is the dual system. So, there was scope for counsel practice even at a lower level. Certain parts of the suit like motions or chamber summons were always done by the juniors. At the Supreme Court, because it is the last throw of the dice, often the client wants the biggest lawyer money can buy. So, opportunities for youngsters to open their mouth are hard to come by, and subject to the risk that the client will not like it.
Secondly, Bombay is much more a creature of contract. Everybody was known by whatever work he could deliver. In Delhi, it is more a matter of status; it matters who you are and what title you hold. Even if it does not matter to the judges, it matters in the industry.
You served as Standing Counsel for the State of Karnataka in the Supreme Court for more than a decade. How was that experience?
Each state has its own way of hiring its standing counsel. Karnataka government lawyers are fortunate that often their tenures are not linked to the government. In many states, when you are appointed under one government, when a new government comes in, you have to resign. So, in Karnataka, lawyers have served long tenures, but for phenomenally low and even unpaid fees. The systems of payment are entirely archaic. In fact, a former Advocate General of Karnataka described the payment system as applying procedures designed for PWD contractors, to professionals.
While the job was not good in terms of payment, it was great in terms of exposure. I rarely briefed senior counsel, except when specifically instructed. Often, I would go head-to-head with the big seniors in the Supreme Court. That, in effect, laid the base for my development as a lawyer.
There were quite a few memorable moments. One of the biggest crises was the kidnapping of [Kannada actor] Rajkumar. I remember briefing Harish Salve for days; the hearing was sometimes deliberately prolonged so that it became apparent to all that the Supreme Court would not allow his associates to be released.
In terms of toeing the government’s line, was there anytime when you had to argue an unconscionable matter?
No, that way there was rarely anybody peering over my shoulder, I always took the call. So, I never had that problem. If ever there was any suggestions, I would look at them sweetly and say, ‘Sir, please send me a letter to that effect’. When you ask for things in writing, you can be sure that there will be no instructions which are suspect!
The Central and State governments are responsible for the majority of litigation in the courts. What can be done to curb the same?
I think that the responsibility is not only of the governments, but of the courts as well. If courts were to come down heavily on Governments for filing frivolous cases, or pushing the citizen to come to court, then there would be more accountability on the part of the government. Very often, the court is aware that if it passes such an order, the concerned government lawyer will get fired. Therefore, courts look at that part of the equation as well.
Once, Justice BN Kirpal, in some particularly useless matter, was extremely angry and wanted to impose costs on the Government of Karnataka. I persuaded him not to, simply telling him that his order would be used by several Government officers to shut down cases that really deserve to be heard.
There should be a much stronger filtering mechanism. Maybe a retired judge should oversee government litigation and give specific reasons as to why matters should or shouldn’t be taken forward.
When were you designated Senior Advocate?
It happened on April 23, 2015. I had applied earlier, but for no particular reason, my application was deferred from time to time. The composition of the Supreme Court is very temporary; judges stay for only 3-5 years. When you are a state counsel appearing daily before the judges, the judges of that era know you by name; some of them might make a recommendation. But, if at that point of time, you drop off the radar, the newer lot of judges will not know you.
I got the feeling that while everybody said I was a good name [to recommend for senior designation], nobody said that my name had to be recommended.
Do you feel that there is scope for improvement in the current designation process?
Much before it got formalised, the old system was better. Anybody who wanted to be designated would be designated and he would subject himself to the rigours of a senior practice where he would no longer be in touch with clients and other lawyers had to brief him. The result in many cases was that persons who had a good practice as a junior, and later got designated, disappeared from the market altogether.
The story goes that when [former Chief Justice of India] Justice Mohammad Hidayatullah was considering senior designations, one of the judges raised a query about a particular name, saying that the gentleman has no practice. Justice Hidayatullah is supposed to have remarked,
‘Brother, it is his funeral, why are you coming in the way?’
The point is that designation as a Senior Advocate is tricky for the person designated.
Now, in England, the designation process has been taken away from the judges and given to an independent body which includes laypersons, so that the consumers are represented. That is something which could be considered here.
Is there any substantial difference in terms of the way one is treated by the judges and the Bar after designation?
I don’t think the judges treat you differently. In fact, they probably expect a higher standard of you and some of them can be quite cutting and say things like, ‘We didn’t expect a senior to persist with this argument’. Very often, a junior advocate or an Advocate-on-Record is given greater leeway to persist arguing in a bad matter.
As far as the Bar is concerned, they do treat you slightly differently. To a large number of them, you are no longer competition, so they are more likely to be friendly with you!