Rule of Law, like religion, survives on faith: Shyam Divan, Neelima Tripathi, Madhavi Divan, Parag Tripathi reflect

"We need to have faith in our legal system", commented Senior Advocate Shyam Divan on Saturday, adding, "we need Constitutional functionaries with courage and judges with courage." .Without constitutional functionaries with courage, what would result are jellyfish judges and a jellyfish jurisprudence, he added..Divan was responding to a question posed on the erosion of faith in the legal system during a virtual event organised by the Jammu and Kashmir Judicial Academy in conjunction with the Jammu and Kashmir High Court. .The discussion on a 'Career in Constitutional Law Practice’ also featured Senior Advocates Madhavi Divan, Parag Tripathi and Advocate Neelima Tripathi as speakers, with lawyer and Constitutional law scholar Gautam Bhatia moderating the event..Senior Advocate Divan emphasized that people needed to believe in the strength of our institutions for them to survive. Constitutional functionaries and judges who are not afraid to speak against an erosion of power were also essential, he added. They did not need to always declare their courage, but had to display their convictions when the situation demanded it..Continuing on this theme, Senior Advocate Parag Tripathi observed that faith was as important to the continuance with rule of law as it was to the survival of religion..The session was primarily aimed at students presently interning with Judges at the Jammu and Kashmir High Court and sought to sensitise them about pursuing careers in Constitutional law..The thrust of the discussion was to shine a spotlight on the areas of Constitutional law practice apart from the chapter on Fundamental Rights, the more popular and widely-known realm of Constitutional law..The lawyers took questions from the webinar participants and also discussed their ‘accidental’ foray into the practice of Constitutional law..To put things in context, Senior Advocates Shyam and Madhavi Divan come from a commercial law background and Neelima Tripathi is a chartered accountant. .In order to describe their most loved Constitutional law cases, the lawyers attempted to take the audience through their lives as Constitutional law practioners..Responding to a question about the dilution of Article 32, Senior Advocate Madhavi Divan pointed out that social media presented a very different picture of how the provision was used, and emphasized that the provision was still strong. .However, it was liable to being overused with the filing of frivolous petitions for publicity, she said..She also expressed her misgiving about live streaming of hearings, especially when it resulted in lawyers sometimes ‘playing to the gallery’ and judges' remarks during hearings being understood out of context. She did agree, however, that live streams have helped ordinary citizens understand the workings of the Constitutional courts..On another question about the possibility of public interest litigations (PILs) being misused, Senior Advocate Parag Tripathi observed that much of public interest litigation has been used to advance social good. However, those PILs instituted with fraudulent motives sometimes drown out the genuine ones, especially if the genuine PILs are on the same subject as the fraudulent petitions, he cautioned..PIL is like nuclear power, it depends on how you use it.Senior Advocate Parag Tripathi.Gautam Bhatia remarked that in popular understanding, the practise of Constitutional law is intertwined with enforcing and fighting for fundamental rights. .The image of the individual pitted against the State was one that resonated with people, he remarked. However, he continued, there were other areas of Constitutional law that were equally important and gave rise to a host of Constitutional questions..Federalism, relations between the Centre and the States, issues of taxation and interstate commerce and the right to property were some of the areas highlighted by Bhatia in this context. The lawyers further expounded upon these themes.Senior Advocate Parag Tripathi stressed upon the usefulness and centrality of proving legislative competence in any Constitutional challenge. On this aspect, he narrated instances from history where arguments premised on legislative competence proved hugely successful..The four lawyers emphasized that Indian laws often weaved into one another, with constitutional questions arising from fact situations that involved other laws as well. Therefore, an understanding of all laws was necessary, they said..While Senior Advocate Parag Tripathi cautioned against the 'silo' approach to law practice in the Indian context, Senior Advocate Shyam Divan opined that it is necessary for an Indian lawyer to be a generalist at some point..Senior Advocate Madhavi Divan, who presently serves as Additional Solicitor General at the Supreme Court, recounted that all of her initial conceptions of Supreme Court cases were shattered once she actually began work at the top court. Most legal questions in cases before the Supreme Court had their roots in ordinary areas of law such as divorce and commercial laws, she said..Advocate Neelima Tripathi expressed that clients were more interested in whether lawyers are able to answer their questions than in what laws they practised. Therefore, an understanding of all laws is important, she underscored..However, a thorough knowledge of Constitutional law is essential to practice in writ courts, she emphasized..Senior Advocate Madhavi Divan recounted a case she argued against her husband Shyam Divan as one her most notable Constitutional law cases. The matter was a Bombay High Court case and pertained to an eight-year-old Jain girl taking up Monastic vows, thereby giving up her rights to education etc. The question in the case revolved around whether allowing this was permissible. .Shyam Divan argued for the Jain institution which asserted that no interference was permissible, while she represented the opposing side. She noted that to her knowledge, no judgment in the case was pronounced..Senior Advocate Shyam Divan then continued saying that an interlocutory arrangement had been reached, whereby the Court confirmed the girl’s right to take up monastic vows, but directed that she be provided ‘secular’ education in certain subjects so that she would not be helpless if she ever decided to rescind her vows..The other cases Senior Advocate Madhavi Divan recounted were the Sahara Media Guidelines case, the WhatsApp Privacy case, and the Triple Talaq case.."The idea is not to start putting people in jail. It is deterrence", ASG Madhavi Divan on criminalisation of Triple Talaq after Shayara Bano.Senior Advocate Shyam Divan spoke about his experiences being a lawyer representing petitioners who challenged the vesting of the Bombay High Court’s Original Side (Commercial) jurisdiction on city civil courts. .Despite the unsuccessful challenge, both before the High Court and the Supreme Court, they were effectively successful after the enactment of the Commercial Courts Act, which established commercial courts while allowing the Bombay High Court to retain its original jurisdiction over commercial matters..It had all the thrills of a T20 matchParag Tripathi on Kesavananda Bharati v. Union of India.Senior Advocate Parag Tripathi explained that his favourite case was not one that he personally appeared in, but one that was part of his ‘acquired memory’. He narrated the interesting turn of events that led up to the landmark Kesavananda Bharati decision.."Unusual Happenings": The tale of when one Supreme Court judge got himself hospitalised and his Chief Justice went checking.Senior Advocate Shyam Divan added that a person intending to devote their lives to Constitutional law entirely could consider a career in academia..Starting out in the chambers of lawyers who practised in the Constitutional courts, particularly the High Courts, would give a person a good initiation into Constitutional laws, the lawyers concluded..After a warm address to the webinar's participants from Jammu and Kashmir High Court Chief Justice Gita Mittal, and a vote of thanks from Rajeev Gupta, Jammu and Kashmir Judicial Academy's Director, the session drew to a close.