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Rebecca John, recently designated a Senior Advocate by the Delhi High Court, was most recently in the news as the defence counsel of the Talwars in the Aarushi murder trial. In this interview with Bar & Bench, the senior counsel talks about her initial years in criminal law, crumbling institutions and the need to hope.
Bar & Bench: You have had an interesting career path. You started with Dinesh Mathur, one of the biggest names in criminal law back then. Why criminal law?
Rebecca John: It was a completely innocent decision. I am not from a family of lawyers. My father was a bureaucrat, my mother a teacher. I took to law because I had a natural inclination towards the law. My father wanted me to be an IAS officer and I did not want to be one. So I was a rebel to that extent. Perhaps a very quiet, obedient rebel.
At the end of 3 years, while I was fascinated by criminal law, I had not really made up my mind about which area I wanted to practice in. One of my closest friends is Vrinda Grover and her father was a celebrated criminal trial lawyer in Delhi. So he was talking to me and he said, “Yeh to apne aap toh decision nahi legi (You don’t look like you will take a decision yourself). I will send you to a friend of mine, Dinesh Mathur.”
He spoke to Mr. Mathur, and Mr. Mathur couldn’t say no to him. So I went over. I don’t think initially he was very clear what I was all about. I think he kind of looked at me and said, “So, how long do you think you will remain here?” The underlying assumption was that I would get married or do something silly like that and leave.
Also, the atmosphere in a criminal law chamber in those days used to be a lot (pauses) different from what it is now. I got to hear a lot of abuse (smiles) which is very much part of a criminal lawyer’s normal, affectionate every day dialogue. I understand now that it was completely harmless but it was not a language I was used to. So when I used to hear it in the beginning, I would ask Vrinda “What kind of people are these?”
Slowly I suppose Mr. Mathur recognized the fact that I was clearly meritorious. And the kind of training I received is something I am so proud of. Everything I did was checked, counter-checked. Mr. Mathur would check my stay applications, my affidavits. All those little, little things that you don’t pay any attention to – he would point out [the mistakes] to me.
Bar & Bench: He had time for you?
Rebecca John: Actually, I was the last junior he trained. He was at his peak at that time and we did a whole lot of high profile cases. And it was also about watching him in court. I think that is an experience that young lawyers today discount. At that time it may have seemed like a waste of time but unknown to you, you process so much, you internalize so much. A lot of what is said and done at that time suddenly comes out of you ten years later.
The other great thing that happened to me at that time was in connection with one of Delhi’s greatest criminal trial lawyers, Mr. Bipin Bihari Lal. He was very closely connected to Mr. Mathur’s office. Any matter that came to Mr. Mathur for trial, he would instinctively send it to Mr. Lal. When Mr. Mathur recognized the fact that I was here to stay, he asked me if I was interested in picking up trial court along with appellate work. And I jumped at it.
I actually got the best of both worlds – I got to learn about trial work from Mr. Lal and I learnt appellate work from Mr. Mathur. And you cannot become a confident criminal lawyer unless you know trial work. You cannot.
Bar & Bench: You seem to have been quite lucky.
Rebecca John: Oh I lucked out. There is no doubt about that. I was probably in the best chamber of the time, with the best human beings around. Everything I learnt about the letter of the law, I learnt from that office.
Mr. Mathur would inevitably be before the Division Bench [in the Delhi High Court] so he would ask me to appear before the Single Bench. And I remember him telling, I think it was Justice Dalveer Bhandari, that,
“There is only one thing I am going to say – If you are going to dismiss the appeal mark my presence. If you are going to allow the appeal, mark her presence”
It was such a wonderful gesture!
Bar & Bench: As a lawyer, did you ever find yourself judging your clients?
Rebecca John: You learn very early in life, if you are a court-attending lawyer, not to be judgmental. Because you realize that not everything is black and white; not everything is what it seems to be. You learn to look at other sides of a scenario.
For instance you may read an FIR and think, “This is indefensible” and then you meet your client and he produces all this evidence and you think, “This is very different from what I read in the FIR!”
Of course you get a sense of whether someone has done something or not – and a lot of my illiterate friends ask me how I can defend someone I think is guilty – but there is no morality in law. You do what is constitutionally right! We cannot confuse the two at all.
This is a system that must uphold due process. This is a system that must uphold civil liberties, the rights of an accused – that is constitutionally enshrined. And if you start confusing that with morality, you are entering into very, very dangerous territory. I don’t have to like any of my clients but I have a bloody job to do and I will do it.
Some of the barking that takes place on television, “How can he defend x or y or z?” – I find that hilarious. Everyone has the right to be defended.
Bar & Bench: You worked on the JS Verma Committee report. What is your opinion on the issue of marital rape?
Rebecca John: You know, I know the feminist position on it. And I also know that a day will come when we will have marital rape in our statute books. But I also feel that when you are negotiating for a particular law to come, you also have to learn to give in a little.
Perhaps our Legislators were not ready for it then, I don’t know when they will be (pauses) Laws evolve over a period of time. They are not static. Just because you have a particular set of provisions, they are not going to remain for eternity..
Bar & Bench: Allegations of sexual harassment were recently made against a retired Supreme Court judge. Were you surprised?
Rebecca John: No.
Bar & Bench: Were you grateful that at least people are talking about it?
Rebecca John: I am extremely grateful but I am not very happy with the lack of sustained pressure. Also I think we are always critical of everybody. I think the judiciary must introspect what it is doing and how it is handling the situation. The Vishaka guidelines were great but they themselves were not following [the guidelines].
Bar & Bench: Did you ever face harassment of this kind as a lawyer?
Rebecca John: That is an interesting question. You know, for the longest time I never faced it. If you had asked me this question five years ago, I would have said I never faced it. In the legal community, neither my contemporaries nor judicial officers ever behaved in a manner that could even remotely be termed as sexual harassment while I was growing as a lawyer.
But now that I have achieved what others haven’t, say being a designated Senior, I can clearly see how much easier it was for men to become Senior Advocates as well as sustain their practices as Senior Advocates.
Bar & Bench: But what does gender have to –
Rebecca John: It does. I am not part of the “partying drinking circuit”. I finish work and I go back home. The people who come to me, come to me because they are convinced that I do a good job. But you know the kind of networking that takes place, where law firms are almost bonded to a particular senior etc. It is not sexual harassment but there definitely is a gender bias.
I am now also seeing situations where it is probably easier for men to get briefed than it is for women. I guess what I am trying to say is that there definitely is a “Boys Club” which views you differently. And because there is a Boys Club, not joining this club (not that I will ever desire to do so) has its own consequences.
Bar & Bench: Coming back to the allegations against the judge, do you think the judiciary has also become afflicted with the same problem?
Rebecca John: Yes. I think there are a lot of things that need to be done. I don’t think it is enough to give moral science lectures day after day and then do nothing about your own house you know. I think this problem of elevation [to the Bench] is a serious, serious problem. There is no transparency in the way it is done.
Bar & Bench: When you became a Senior Advocate, one of the reasons you said you took so long to apply was because you were sure no one would designate you a Senior. Why did you think so?
Rebecca John: Because I wasn’t meeting any of the judges. My interaction with the judges would end once my cases were over. So I would go to court, argue, and get out. Not that any member of the judiciary was ever rude or anything of that sort- that is not what I am saying.
I was so grateful when the High Court formulated those tough rules for becoming a Senior Advocate. Because then you knew whether you came within the prism of those rules.
Bar & Bench: One last question on the allegations of sexual harassment – what do you think the victim should have done differently?
Rebecca John: See, you have to give women the time to be ready to process what has happened to them and to be ready to take what happened to them to the next level.
She decided to write it on a blog. That was the way in which she thought she could deal with it. I don’t know if she knew that it would spin off like this but that was her decision. I don’t think everything should be looked at from the prism of a legal proceeding. I don’t think the criminal justice system has the capacity to heal. I think it is a brutal world out there. And so people may be more comfortable with alternative options. So if this is what she thought she wanted to do, again I will not be judgmental or anything like that.
So I have no quarrels with the manner in which she went about this. I am not sure whether she thought it would become such an event. I would not think so. She may have just wanted to get this out of her system. But she has since then participated with whatever process was set up.
And moving away from just this incident, why aren’t High Courts across the country cognizant of the fact that these things happen? Where are the sexual harassment committees in courts, in Bar associations? Where do women lawyers go to for redressal? I think these are very serious questions. We can’t adjudicate about the rights of citizens if we ourselves don’t follow these rules.
I think the time has come when everyone takes it seriously. I think lawyers think it is a bit of a joke and I find that offensive. Judges must take it seriously. There must be an acknowledgment of the fact that these things happen. If we completely deny it or say that these things don’t happen in the existing set-up, then you are in deep trouble.
Bar & Bench: Are you an optimist?
Rebecca John: I am always an optimist. I know we are going through a phase where everything is looking very scary but I am quite sure it will pass. We are a young democracy. We are at stage where everything is loud, shrill, cacophonic, real time, 24-7 television – all of that is happening at the moment. But I think we will mature with time.
Bar & Bench: How do you fight the cynicism?
Rebecca John: Of course I am very cynical some times. But I think if we abandon the field at this stage and say “Oh nothing will come from here” I think we will let down the next generation. And I think we have no business doing that.
Therefore through all this madness, we have to believe that there is an optimistic future. If we don’t believe in that, we will go crazy. This is not to say that things are perfect. I think our institutions really need to redeem ourselves.
Bar & Bench: Do you think that we need someone from outside the system?
Rebecca John: Who will this be? Who can it be? I think more people from within the system have to contribute and question how the system is functioning.
I mean the Legislature points fingers to the Judiciary, the Judiciary finds fault with the Executive and the Legislature, the media finds fault with everyone – it is endless. I think we must, individually and collectively, look within ourselves, within our systems and identify the loose areas.
There are too many people who are comforted by the position they are in. and they just do not speak out. You must learn to speak our minds. I can only speak about the legal system and this is the system that has made me what I am. This is the system that I must seek to improve.
Bar & Bench: Speaking of the system, you have said that it is a brutal world out there and that the criminal justice system does not have the ability to heal. You are also staunchly against the death penalty.
Rebecca John: I am against the death penalty for several reasons. Purely legally, we go wrong far too often and I have seen that upfront and personal. And when you go wrong as frequently as we do, the death penalty must never be part of our legal discourse.
The criminal justice system is far from perfect and unless those systems are perfect or as close to perfection as possible, this is a very very dangerous punishment. It is in irreversible punishment.
Two, I am not a vindictive person by nature. I believe in reformation, in the goodness of people –
Bar & Bench: Even as a criminal lawyer? You have seen the darkest side of human behavior.
Rebecca John: I have seen some of the darkest sides but for me, the guilty must be prosecuted. It does not comfort me that somebody is going to be hanged. It frightens me.
No matter how often this is repeated, it is the certainty of punishment that is more important than the severity of punishment. Some of these severe punishments really frighten me. Because it gives rise to this lynch mob mentality. In a nation, which is obsessed with convictions and convictions, you will have disasters like the Aarushi Talwar case.
Bar & Bench: In most of your other interviews, you are fairly reserved. But you have not really held back your opinions on the Talwar case have you?
Rebecca John: Because I have seen the extreme cover-ups that have taken place in this case. Don’t ask me why they did what they did to this couple. I don’t have a shadow of doubt that these people are innocent and I mean every word of what I say. To me, this has been a witch-hunt.
I have seen up close and personal how the lives of two people can be turned like this. Not because of the evidence against them but because of the sheer lack of evidence against them. It is the lack of evidence leading to their conviction that is so scary.
As a person of the law, you deal with evidence. So if there were evidence that implicates you, then I would see it as a case that should be defended – that is all. But in this case I genuinely felt that they were wronged at every stage.
They were the ones who picked up the DNA report that clearly established that a pillow cover found in one of the domestic help’s rooms had the blood and DNA of Hemraj. First the CBI misses it completely, and the minute you show it to them, you get a third rate letter written from CFSL Hyderabad, that had originally provided the report, saying that this was a result of a typographical error!
What kind of evidence is this? And is this the kind of evidence you use to brutally convict two people?
It was obvious to me that they had a theory and now wanted the evidence to fit into that theory.
In fact for a change, when the judgment came out the television was far more muted and the discourse was much fairer. But you should have seen the papers, calling them murderers and putting red ink all over the place.
Bar & Bench: Why do you think this is happening in the first place?
Rebecca John: It is as though the collective conscience of the media has been satisfied here. And I don’t care whose conscience is satisfied. I am saying that we have to go back to the times when all of us exercised restraint. Prosecuting agencies, the courts, the media – there are some words that you cannot use. A judgment cannot say that these were “freaks of nature”. What is the basis of that determination? You can say they killed their daughter and their domestic help. You can come to that conclusion, right or wrong is a separate issue. But to call them “freaks of nature”?
I am horrified at the kind of witch-hunt that has taken place in this case. Let us for a moment assume that they committed the crime. I am a criminal lawyer, I deal with all kinds of people. Let us presume that they created the crime. So what? How is it nationally relevant? Why is it treated as if “we” have been vindicated?
Bar & Bench: Do you think the media attention was because the case had all the elements of a “scandal”?
Rebecca John: You know, I think for urban India this was one of its’ kind. And the fact that nothing really was solved only allowed more sleaze to be introduced. If you have a case where there is a definitive finding, both from the investigative point of view and the judicial point of view, then I think the introduction of sleaze and scandal is somewhat limited. But when it is so open in the middle and you jump from one conjecture to another– I think it gives room for this kind of speculation.
Bar & Bench: At any point of time, did your clients contemplate taking action against these media reports?
Rebecca John: We did that. We did move the Supreme Court giving examples of how the media had collaborated with the investigative agencies. I am aware that I am using very strong words. But if you put across every, unsubstantiated leak that merely adds to the sleaze, you can’t imagine the amount of pressure it puts on a system that is already so burdened.
Bar & Bench: But isn’t a judge supposed to be cut off from such pressures?
Rebecca John: We are not living in that kind of world anymore. We are not. And therefore, I think it is very important for us, and I say this with the utmost sense of responsibility, to get to the first principles of criminal law. You have to assume innocence before you come to a finding of guilt. You have to protect the rights of the accused. You have to follow due process. And if you don’t you will have circuses like this happening.
Today it is [the Talwars] and the world believes that it is okay. But tomorrow it could be you, or me. And then you won’t believe that it is okay.
This interview was conducted by Bar & Bench in Delhi on December 10, 2013.