Loose Cannons

That Oceanic Feeling: Atul M Setalvad (25 October 1933--22 July 2010) by Gautam Patel

2010-07-31T12:22:00.003+05:30

Early that July morning, as the dawn broke over a tumultuous sea, a life faded as it had lived: without complaint or fuss, with quiet dignity. For the many of us who were privileged to be of his world, Atul Setalvad's passing is a loss as immeasurable as the ocean, and as profound.

* * *

Of course he was an extraordinary lawyer. He was, after all, born to the law, the third in direct succession of a line of great lawyers. But in a field crowded with exceptional legal minds, what is it that made him stand out? The answers are so many that even those who knew him for a very long time would have great difficulty in pointing to any one thing. Some might tell of his exceptional drafting, others about the speed and accuracy of his reading and analysis, someone else about his unflinching commitment to a cause, his unassuming and self-deprecating manner, the excruciatingly high ethical standards he set for himself. All of these are true and still the man was greater than their sum.

Take his drafting. Junior lawyers today would be forever indebted to anyone who puts together a compilation of Atul's drafts. Those who have seen plaints or petitions he drafted -- and even more so those who, years later, have had the privilege of arguing them -- say they are models to emulate. The writing is spare, with not a surplus word. There is no prolixity. It is entirely precise, without embellishment or flourish. The language never intrudes. This is drafting in the classical mould, lean, tough and uncompromising -- what drafting should be, but seldom is. Above all, there is complete clarity. A discerning lawyer reads the draft wistfully and sends up a prayer: please, let me be able to draft like this.

The best drafting often comes from the best readers, and Atul was no exception. The clarity of his drafting reflected both his mind and his reading. He read at terrifying speed. Given a complex judgement or section, something that had taken hours to dissect and he read it in a few minutes.That's impossible, you said to yourself. Nobody can read that fast. And yet, he had. He had read it, absorbed it and had it all laid out in his mind with the greatest precision.

Years ago, I walked into his chambers at Pherozshah Mehta Road one morning. I'd just dropped in for a chat -- he seemed to enjoy that kind of thing -- to ask if he'd found anything of interest recently at Strand Book Stall. He was hunched over, his face very close to the desk, peering through his pebble-thick glasses at a bare act. At last he sighed and looked up, sat back in his wooden chair.

"Income tax," he said. "I'm a complete stranger to this part of it."

I knew this to be entirely untrue.

"It's very complicated," I said helpfully.

"Rubbish," he snapped. "On the contrary. It's relentlessly logical. Read this."

He spun the bare act around at me. It was some four-digit, five-alphabet brinjal of a section cross-linked to a dozen others, stuffed with provisos. I went glassy eyed in seconds.

"It's really so simple," he said. "Look, follow this."

In the next few minutes he explained it with the assured ease and effortlessness of someone who'd been reading it all his life. And it was something he hadn't read ever till just a few minutes earlier.

* * *

He was, almost to the end and till his mind and body kept him away, that finest of readers: fast, attentive, discerning and catholic. He didn't so much seem to read books as to inhale them. His reading was well beyond the law, though there was plenty of that. He preferred non-fiction, devouring biographies and thick tomes on contemporary history -- David Remnick's new biography of Obama was on his desk just a couple of months ago. He also loved a certain type of thriller or detective novel, and had an unlikely partiality to the horse racing novels by Dick Francis (no doubt he'd have said "they're not horse racing; they're about steeple chasing"). He was delighted to find that I shared his fondness for these novels. For many years we each tried to outdo the other in seeing who could get the latest Dick Francis -- he published one a year, usually around September or October -- and we'd always buy two copies: one for ourselves and one for the other. He was quicker on the draw than I: our head-to-head record is roughly 7 to 2, in his favour.

* * *

Professions are most vicious to their own, and ours is no exception. There are many who will speak only of his legendary temper; yes, he sometimes showed a jagged side. But those who recall only this of him never knew or saw or understood -- or perhaps did not want to -- that this was a man utterly without malice and possessed of an uncommonly large heart. In some ways his world was unreasonably black or white. If you were on the wrong side, you were merely part of the furniture. On his right side was another world, of easy communication, ready assistance, much joking and self-deprecating humour, a world of grace and graciousness. He handwrote a note to me years ago after I once reviewed a book of his for the Bar Association website. He thanked me and, typically, said it was undeserved praise. He had no reason to write that note, nor did I expect it, but the fact that he took the trouble to write it at all said everything.

The attorneys who briefed him regularly were devoted to him. They simply refused to look elsewhere, at least for a certain type of case. He challenged them intellectually and enjoyed the collisions of thought and analysis. Conferences were a dream. Where others might deride or be condescending, he treated even a rank junior as a peer, listening with respect, never criticising or talking down. He expected you to be prepared, and wouldn't waste a minute if he detected you weren't; but if you'd worked your brief, you left the conference brimming with confidence.

* * *

Rare among busy lawyers, he was also a scholar. Few knew of his academic accomplishments which alone mark him out. He was a Bar-at-Law, and also had an Ll.M; but he also had a Ph.D. in, of all things, airspace law, a subject which, if it is rare today, was probably even more uncommon then. He edited Mulla's commentaries on the Stamp Act and the Transfer of Property Act. He wore his successes lightly and treated them with something approaching disdain: no "Dr" appeared on his letterhead, ever.

More recently, he returned to scholarship with something approaching a fever. In less than three years, he produced four or five separate commentaries and books on topics as diverse as a general "Introduction to Law" for students (something to be recommended to every intern and freshly minted graduate); a book on Conflict of Laws; another on Trusts and Charities (the introduction to which alone is a masterpiece); and, most lately, one on Sales Tax and VAT. In addition he contributed wrote the volume on Contract for Halsbury's Laws of India. He had no use for praise for his work, but was delighted if someone caught a mistake in a book, and he shared our horror of publishers who decide that an index is too much trouble and so deal with it by eliminating it altogether. He wouldn't have that, and sedulously prepared an index himself when he could.

* * *

His advocacy was like his drafting. He hated repetition and could not abide long-winded circumlocutions. He would develop his argument and state his point and leave it at that, assuming -- often justifiably, sometimes markedly less so -- that the judge was bright enough to follow his thread.

He had an enormous practice in the constitutional courts, in indirect tax matters, before tribunals and in arbitration. As juniors to HM Seervai, for over ten years he and Tehmtan Andhyarujina represented the State Government. Years later, caught in a crisis, the Government turned to him again, first to lead the team for the Appropriate Authority under the Income Tax Act in their battle to break the black-money real-estate cartels and, later, as lead counsel for the Custodian in the Special Court trying the securities scam matter.

But there was another area of practice, too, one I believe he valued above all else. He was, arguably, the first senior to commit himself consistently to a cause, to PIL work; not the stray brief every now and then, but on an ongoing basis; and to do so at the cost of other paid work -- not just refusing a conflicting brief, but actually refusing a brief that conflicted with the cause he had chosen to represent.

Some time in late 1984 or early 1985, Shyam Chainani and the Bombay Environmental Action Group filed several public interest litigations in Bombay. These were directed against a raft of illegal constructions coming up in south Bombay, where the permissible FSI was being fudged. A series of articles in the Indian Express exposed the scam. The petitions were based on those articles. They were drafted by Navroz Seervai and settled by Atul. The Solicitor on record was Dharmasukh Nanavati, with whom I was then working while still in law college. Dharmasukh's instructions to me were simple: "You handle it."

A great learning experience to be sure, but really scary stuff for someone who had no idea what aProthonotary looked like and had yet to figure out that a praecipe has nothing to do with dinner. Week after week I sloped off to Atul's chambers in the High Court Annexe. At one desk to the left was Raman Joshi, stooped over his papers. To the right of the door was C. J. Shah's desk and, along the far wall, sat Mohan Korde and Firdauz Talyerkhan.

Atul's desk was right opposite the door. We clustered around it: Navroz, perhaps Rajni, and I a little further back and to one side. And, of course, Shyam Chainani with his tattered cloth jhola stuffed with files, a lined writing pad on an ancient clipboard, carbon paper so that he had two copies of all his notes, a brace of cheap blue ballpoint pens, a schoolboy's water bottle that he hooked over the back of his chair and, incredibly, a toothbrush in his breast pocket.

Atul glared at aforesaid toothbrush, harrumphed loudly and then began stuffing tobacco from a grubby pouch into his battered pipe. Firing it up with a match, he puffed a bit to get it going and, once it was billowing clouds of smoke to his satisfaction, set to work. His broad-nib pen poised over a crisp sheet, he said something like, "All right, Navroz, three authorities on locus please." Navroz would scratch his beard (fortunately a thing of the past) and then rattle off cases with complete citations. Being Navroz, he also launched into a discussion of each, but Atul wasn't having any of that. "Yes, yes, we know all that," he'd snap (though all of us clearly did not). "Come on, next point."

He led the charge in every one of those matters, appearing free but also ensuring that they had the highest priority above all other work. Navroz Seervai, Rajni Iyer, Zia Mody, Shyam Divan and, a few years later, Shiraz Rustomjee and I were all privileged to be part of that team. In matter after matter, he got interim orders and, years later, final orders that everyone said were impossible. Buildings were actually brought down.

His commitment to the BEAG continued down the years. Whenever we needed an opinion or a conference on an interpretation, help with strategy or preparing a draft of a notification for submission to government, Atul was our port of call. His commitment was fierce and uncompromising, but it was not indiscriminate. Where he saw the things that most mattered to him -- integrity, personal and professional, fidelity to the cause and courage -- there Atul stepped up to the plate. In Chainani and the BEAG, he had all these in ample measure, and never thought twice.

* * *

Atul and Chainani are also responsible for my first solo appearance in the Supreme Court in a final hearing. He and I were in Delhi for the BEAG on the Dahanu BSES (now Reliance) thermal power plant. Raian Karanjawala was our Advocate on Record. We waited a day; the matter reached just before four and the judges said they would hear it the next day. Atul abruptly announced he had to return to Bombay that evening. "You argue it," he said, and that was that.

I was terrified. Raian did what he does best, and like no one else, somehow kept the ship afloat. But for me it was a very, very long and very, very sleepless night.

Early the next morning, the day of the matter, I telephoned Atul at home. I was groggy and, I suspect, babbling incoherently. Before I could get very far, he said, "Don't worry. Just make your points. You know the material. Just make the point and sit down. It's a court, and it will hear you. And you'll be looked after. Ashok and Tehmtan are there."

"But they're for the other side!" I said.

"No they are not," he said. "They may be appearing for the respondents but they are from our side, Bombay, the Original Side. Don't forget that. They'll protect you."

"Why would they do that?"

"Because, dear boy, that's what seniors do."

He was right. In court, Gopal Subramaniam led for a linked petition, and then just when it was my turn, and as I fought back that sickening feeling of terror and tried to stop my legs from trembling, Ashokbhai on the other side leaned across and said, "Go on. Do your best and don't worry. Tehmtan and I are here. Atul must have told you that." And, being Ashokbhai, a man soaked in philosophical wisdom, added enigmatically, "Remember, everything happens for a reason."

To this day, I do not know why Atul left Delhi the day before the matter. He hadn't said he had another matter; he just said he had to go. I once made the mistake of gently asking him. He shrugged, visibly embarrassed. I said it was a great opportunity.

"We got an order, didn't we?" he said and then, to my great delight, added, "now stop being stupid and wasting my time." Knowing Atul, that waspishness was a charade; beneath it lay real affection.

* * *

That largeness of spirit, breadth of mind and boundless kindness were heaped on all of whom he was fond, whether or not from his Chambers. His juniors were always his friends and equals. The chambers revelled in irreverence. For someone new to this world, this was often disconcerting; it seemed to border on rank insolence. The Setalvad chamber called it "democracy". Far from being offended, Atul seemed to enjoy it and encouraged it. The banter was incessant, always very clever and witty and, like him, without malice. Juniors teased him constantly. He was unassuming and self-deprecating to a fault; he swatted aside any compliments or praise as idle prattle -- which did not, of course, in the least perturb his juniors who cheerfully announced that he was entitled to his opinion however wrong, and so what if he was a senior.

This indelible memory: one afternoon I walk into his chambers for a conference. There's a full-blown typhoon going, with Farhad, Gaurav and Shiraz all picking mercilessly on Atul. A few minutes in, I figure it's over something completely trivial but which, at that moment, has assumed mammoth proportions. Darius Shroff and Atul Rajadhyaksha helpfully contribute to the general mayhem. Finally, Atul turns to the lean, elegant and preternaturally quiet Mohan Korde for a decision. Mohan looks up slowly, breaks into his small smile, his eyes sparkling and, to everybody's unbridled glee, softly weighs in with the juniors against his senior. Atul pretends to grumble, says we are all idiots and starts stoking up his pipe. Everybody is laughing by now, and Atul can't help but join in, his shoulders heaving.

* * *

There was another side to him, one that was never trundled into view but one that most set him apart. Justice, democracy, freedom and secularism were, for Atul, not just cold words in the Constitution. They were not even mere concepts or ideas. For a man singularly without religion, these were matters of faith. He never voiced it, but at his core was an unshakeable certainty that these are essential matters, which it is our duty to fight for, protect and defend with every breath; for if we do not, then, as a country and as a people, we are lost. This is his legacy: the vision of a truly just and humane society, one based on tolerance, understanding, learning and kindness to fellow beings, of moral and ethical social order.

To the many who combat communalism, to those who fight against corruption, injustice and the constant intrusion of the state into personal liberties, to those who take up for the helpless, to those who stood up for justice, equality and liberty, Atul provide anchorage. He advised, he guided, he supported, he lent his formidable skills. For over 15 years, Atul's daughter, Teesta, has faced the most terrible odds in her fight against communalism. She has many supporters and friends in her battles but none has ever been a greater source of strength and inspiration than her father. Everyone who has ever appeared for Teesta, whether in Gujarat or in Delhi, will attest to this: that in every single matter, Atul's hand was on our shoulders. Atul had many children; Teesta and her sister Amu are just the two luckiest.

* * *

He was happiest surrounded by his books, his juniors, his family and friends, gurgling with pleasure at the good-natured teasing, quietly exulting in the many successes of his juniors. This was a life lived quietly, in thoughtful and reflective shade, a life of law, learning and justice, an unassuming life with no place for the pomp and ostentation that so many today mistake for achievement. He enjoyed travelling on work but did so without ostentation or frippery. In his shirtsleeves, he'd amble into his preferred hotel in Delhi, the Oberoi. It was, he explained, the only sensible hotel with a desk in the room at which he could work (the others caught on only much later) and he appreciated its high standards of maintenance and efficiency and, above all, the way the staff left you alone till you needed them. That was the kind of thing that appealed to him: sensible things, and being left alone.

He never preached his standards, nor sought to impose them on others. He merely held himself to them with rigid inflexibility, never mind that they were dauntingly high. His fees, for instance, were not just modest. They were absurdly low. Juniors were known to whine. "You mark what you like," he'd say. "I mark what I'm comfortable marking."

If a testimonial to Atul as a senior is needed, then perhaps it is this: today, of all the chambers in Bombay, his Chamber is the one with the most designated seniors -- as many as four of his juniors are on the senior list, and two more should join those ranks very soon. No senior could ask for more. To those of us who knew him, at every level, he was a mentor, a guide, a steadying hand; all those things and something more besides: a friend like no other.

Our grief in not having him among us is boundless. But so too is our joy in having known this rarest of men, one who demanded nothing but gave without measure. To know him was to experience the sensation of an indissoluble bond, an enveloping wholeness; that feeling of immersion that can only be called oceanic.

His passing is not just one life's end. It is the end of an epoch.

* * *

I visited him a few weeks ago one weekday morning. The house at Juhu was very quiet. Set between the greenery of an exuberant garden on one side and the steady sea on the other, it is a marvellous space, as close as it is possible in this city to be united with the elements. The house is simple, without ostentation. To one side of the entrance hallway is his study, a wonderful light and book-filled room overlooking the seashore. There is calmness in that space, something pure and unsullied and uncorrupted. It is a place for study and thought and reflection, a place to write and to think, a place for discussion, a room of warmth and friendship. His study table was covered with books and papers. That morning, it was silent and empty, as if the life had been sucked out of it.

I went in to the bedroom at the far end to see him. He lay on a high hospital bed against the far wall by the window. He seemed very tired, very small, not at all like the favourite gruff uncle of memory. But the smile was still there, and there was affection in his eyes, and his fingers tightened when I took his hand in mine. He nodded once. He didn't speak. I didn't want him to. I didn't know what to say or how to say it. Words seem cold and shallow and nothing seems quite sufficient when what you really want to say is thank you for letting me into your life.

I do not want to bid him farewell. I cannot; and I am but one of many. There are words we should have said when we had the time, words that remained in unvoiced thought. So no, this is no adieu. This is merely a poor thanksgiving, till we meet again.

* * *

Mark My Words by J Lal

2010-07-08T14:53:00.002+05:30

The angry judge keeps rambling on

Higher wisdom bestows earthy scorn,

All else fades when ‘my lords’ say,

“When I speak, let no donkeys bray”

Shakespeare was one big clown,

“dogs don’t bark when judges frown”

“I on my chair, sit high enough”

He says when hears disturbing stuff,

“I am correct” he says, “for I say so”

If you don’t agree then you may go.

Such ego bloated I have never found,

With feet too high above the ground,

Appearing before ‘my lord’ is such a strife,

I still wish ‘my lord’ the best in life.

“My Lord” I beseech for one kind look,

On the last occasion, my soul you shook,

In a ‘dialogue’ then you kept talking on,

My preparation fell, my memory gone,

I came out gasping, battle lost

You didn’t only dismiss, dismissed with cost,

We ask today for mercy anew,

We are aware of mounting work and judges few,

But the grace of a judge is in patience abound,

Our regard for ‘my lords’ is, on that virtue, found.

2010-07-05T21:50:00.003+05:30

Finally, after a gratifying vacation its back to court. Of course the less fortunate amongst us had continued to trudge before the vacation bench. But one swallow does not make a summer. The summer vacation was defined by the gallivanting set which turned each stone in every nook and corner of the globe with great gusto. Exotic tales from Lake Tahoe to Arctic cruises were discussed with aplomb over the compulsory cups of coffee amongst the tamer recitals from Europe. In the midst of this kaleidoscope my reluctance to elaborate on the sojourn to the native hills can be easily appreciated.

As the country reeled under the Bharat Bandh against the hike in fuel prices the corridor witnessed junior advocates valiantly trying to come to terms with the hike in the seniors’ fees. Astronomical amounts were being bandied about with relish by scandalmongers till some wise soul got the figures confirmed from the horse’s mouth. Further aggravation came in the form of a spate of circulars which lay down comprehensive guidelines on mentioning of matters in court and make impromptu mentioning a thing of the past.

Be as it may, the sight of the Supreme Court never fails to inspire. Entering the premises after nearly two months one tends to walk straighter, with a spring in the step and joy in the heart. The body language clearly proclaiming - this where I belong!

Fleeing from Judgment/They Do it With Mirrors

2010-02-23T18:07:00.002+05:30

I recently watched a thought provoking documentary by philosopher and writer Roger Scruton called Why Beauty Matters. In it Scruton argues that post-modernism is a result of art losing its ambition to portray the ideal and to inspire (Kenneth Clark made similar arguments in ‘Moments of Vision’). This results in banal works of ‘art’ such as Marcel Duchamp’s signed urinal, and tin cans containing artists excreta, which ostensibly seek to serve as grim reminders of the world we live in.

Scruton then goes on to offer an explanation for why such ‘artists’ don’t have their bluff called and why we endure the ghastly monstrosities perpetrated by postmodern architects. He argues that out democratic cultures of equality forbid us from passing judgment in matter as sensitive as taste. Passing judgment on taste is often viewed as contrary to the value pluralism and multiculturalism which modern democratic societies seek to espouse. In societies where there is ‘no right answer’ when it comes to value/moral judgments, the people who attempt to make such judgments are often viewed as conservative, feudal, or even attributed racist motives.

It occurred to me that the democratic legal systems are also beginning to suffer from this reluctance to judge, particularly in the sphere of human rights. In most cases, speech cannot be called good or bad, unless it causes actual and palpable harm; reservations cannot be condemned as being ineffective and anti-merit because those who do so are manuwadi oppressors of the weak and downtrodden. Society is also deeply uncomfortable about the idea that judges values and intuitions may play a role in their judging. Its faith in judges is largely premised on their being impersonal entities entrusted with impartial enforcement of the external force known as the ‘law’. Anyone who has spent any significant time in a court room knows that this conception is misguided.

To my mind, there is something Pratchettesque about this refusal to recognise something which we don’t like to dwell on- that judges often act on ipse dixits cloaked in various shades of legal reasoning depending on their ability and intellect.

For judges to act as arbiters of value has always been troublesome, given their unelected and counter majoritarian status. To my mind, this objection is somewhat mitigated by the fact that in large modern democratic systems, there is a deep disconnect between the actual wishes of the populace and the motives of the elected representatives who theoretically embody the wishes of the electorate (1), especially since hardly any of them are elected with an absolute majority.

Seen in this way, the judicial veto can be viewed as an additional voice in the decision making process (2) , one that promotes transparency through open and rational argument(3). Many times, the legislature and executive may react by overruling a judgment. Yet, the act of doing so itself results in discussion and dialogue.

Looking at the judicial process in this way leads me to think that the manner in which a decision is reached is nearly as important as, if not more important than, the ‘bottom line’ of the decision (4). The doctrine of proportionality (the wider European conception) forces the judge to reveal the skeleton and structure of his argument, and subjects the impugned executive/legislative decision to a similar analysis.

In conclusion, a wider adoption of proportionality would allow the emperor to keep his clothes on as far as the public is concerned, while strengthening the decision making process through transparency of reasoning and consequent debate!

Footnotes

(1)There are notable and laudable exceptions- for ex. the large scale public consultations carried out with respect to the introduction of Bt. Brinjal.

(2) Aharon Barak has characterised the judiciary and the legislature as junior and senior partners in the decision making process.

(3) I am not oblivious to the fact that the doctrine of locus standi results in a judicial process where only specific voices are heard, and that it would be tenuous to claim that those voices speak for the entire populace.

(4) On a related point, this is also why the widely condemned 5-4 majority decision of the SCOTUS in Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), which struck down a law regulating campaign support by corporations on free speech grounds, does not trouble me overly. The decision leaves it open to Congress and the States to impose strict disclosure requirements relating to which corporations are funding who, and in what manner and quantity. With the aid of such laws, it will be open to an intelligent public to discern where money spent by a corporation/entity has resulted in tangible political gain for that corporation/entity and bring the same to light or even judicially challenge a political decision blatantly meant to favour the corporation/entity. The cynical side of me says if corporate spending is banned outright, the same money will find other, non transparent ways of getting into politicians pockets.

We give to ourselves….....by Gopal Sankaranarayanan

2010-01-26T21:59:00.004+05:30

White anglo-saxon farmers created the American Constitution.

The French Constitution was given to it by an oppressed proletariat after a bloody revolution.

In Britain, its judges are still trying to figure out how exactly to make a Constitution.

What sets India apart is style.

Our Constitution was crafted by the finest, most emancipated minds of the time, and thankfully, not directed by the confused Nehruvian social policy that guided successive Governments. Giants like Ambedkar, B.N.Rau, Sardar Patel, K.M.Munshi and Alladi debated provisions to protect the basic freedoms of the new nation, with particular care being taken of the historically underprivileged. In India, that meant the harijans, the women and the bonded labourers. The twin ills that plagued Indian society – casteism and communalism – were sought to be uprooted, while retaining protections for religious freedom and practice.

But, apart from freedoms and rights and values, the Constitution was also very detailed. Like the ancient Muslim artisans, the care taken by the Indian assembly to craft provisions on aspects as specific as escheat and jute subsidies (would you believe it?) go to show that our founding fathers took their job very seriously. More familiar with comparative law than corn harvesting, they decided to be detailed and specific in all facets important to the rearing of a young nation. Like fond parents, they wanted to ensure that not much was left to chance, and that their responsibility being an onerous one, they had to discharge it to the fullest. Not for them to take refuge behind later legislation, and hope that sans any benchmarks, the regulations laid down by subsequent legislatures would work out.

Driven by a sense of nation, and motivated by the need to show its ability to retain its unity after a difficult colonial age, it was important that the Constitution reflected the ideals of the peoples of India, and not of any individual. It was fortunate then that the personality cult of Mr.Gandhi did not attend that august gathering.

Were it not for the strength of this document, Indira Gandhi would not have been compelled to end the darkest episode in independent India by ending the Emergency, and the nation’s poorest would not have been empowered by the Right to Information Act.

In also reposing the unique confidence in its judiciary to strike down law, our founding fathers showed a rare foresight. While the United States needed to evolve such a principle through its courts (and then exercise such a power sparingly), the United Kingdom took 600 years to make such a bold law (a mere 10 years ago). Arbitrary state power being so regulated draws a firm line between a simple democracy and a Constitutional one. The Indian courts did not back down when brutal land reform, discriminatory service appointments and even provisions of the 1860 Penal Code were challenged. In the lap of the Constitution, the challengers received refuge.

It is time that a copy of the Constitution finds its way into every Indian household. In rededicating ourselves to its ideals, let us ensure that these very ideals are conveyed to every hungry mouth and every plighted hand, so that in the next 60 years, this vibrant document truly informs “We, the People”.

What does the Constitution of India mean to me - K V Viswanathan, Senior Advocate.

2010-01-26T13:47:00.007+05:30

To me it is a non-negotiable code of powerful ethical values. No doubt it guarantees inalienable rights, earmarks the country's goals, enshrines the fundamental duties, delineates the role of the three organs of state , but all these would be meaningless if the men and women who administer it do not rise to the occasion. Who are these men and women? In a broad sense, it is 'we the people'- each one of us-- and not merely those holding elective and nominated offices. Let us not forget that every right has a corresponding duty and every power has to be held in trust and without being a 'duty conscious citizenry' we cannot just be a 'right conscious society ' and to achieve this we need to look at this great document as a non-negotiable code of powerful ethical values.

Tribunals and Tribulations

2009-08-31T20:40:00.000+05:30

Overview

The long awaited Armed Forces Tribunal (the “Tribunal”) has finally been notified and commenced operations under the Armed Forces Tribunal Act, 2007 (the “Act”). The Principal Bench of the Tribunal has been established at New Delhi with three benches, with other benches also being notified across India.

With this, all matters which fall within the definition of “service matters” in s. 3(o) of the Act are to be exclusively dealt with by the Tribunal. Matters pending before other forums are also to be transferred to the Tribunal. The Tribunal is headed by a retired Judge of the Hon’ble Supreme Court of India, and is at present headed by Hon’ble Justice A.K. Mathur. Benches consist of a judicial member and a military member, who is required to have served in the Judge Advocate General branch of the armed forces.

Benefits of the Tribunal

With the establishment of the tribunal, the registry of the Hon’ble Delhi High Court has already stopped accepting writ petitions relating to service matters. Fortunately, speedy relief even in urgent matters is available from the Tribunal, with there being a provision for having urgent matters listed for the next day after filing, or even on the same day, if mentioned.

The matter which the author filed before the Tribunal was disposed off in an extremely speedy and efficient manner. The matter was filed on a Thursday, fixed for admission on Friday. Notices were issued on Friday, and the matter was finally heard and decided on Monday. This sort of efficiency will certainly help in reducing the backlog of service matters and is to be lauded.

The Tribunal also has the necessary expertise to deal with service matters, thanks to the presence of a military member. The Hon’ble High Courts are also relieved of the burden of fact finding, though they retain their jurisdiction under Articles 226 and 227 of the Constitution as per S. 14 of the Act. A statutory appeal lies to the Hon’ble Supreme Court of India.

Lacunae and Possible Solutions

Though the Principal Bench of the Tribunal at New Delhi was inaugurated by the President on August 15, it’s location remains a closely guarded secret. The Tribunal does not yet have a functional website and it’s location can be learnt of only from word of mouth. The Principal Bench is located in West Block VIII, R K Puram, almost exactly behind the Hyatt Hotel. In fairness, from the Hyatt Hotel turning onwards, the Tribunal is well signposted with prominent guiding signs everywhere and can be easily reached.

The administrative systems of the Tribunals are not yet fully in place. The registry is not fully staffed, and at current strength it remains to be seen how they will cope with the 8000 odd cases that are to be transferred to the Tribunal. As mentioned earlier, due to the lack of a functioning website, causelists and orders are not yet available from the Internet.

For purposes of practice and procedure, the Armed Forces Tribunal (Procedure) Rules, 2008 (the “Procedure Rules”) and Armed Forces Tribunal (Practice) Rules, 2009 (the “Practice Rules”) have been notified. These are not yet freely available, and can only be downloaded from the Ministry of Defence website. There are some unfortunate inconsistencies between the Procedure Rules and the Practice Rules. For example different filing formats are prescribed in Form I of the Procedure Rules and Form I of the Practice Rules, leaving a practitioner unsure of which format to follow, to say nothing of laymen. Though the need for uniformity is understandable, the Act could have allowed the format used for filing in the respective High Courts of the State in which the Tribunal is located to be utilised. This would have greatly simplified matters.

Another seemingly minor, but in truth grave lacunae is the fact that while the Procedure Rules require an application to be filed in the form of two compilations with the Registry, the Practice Rules then require the Registry to take apart these compilations and reorganise them in files with three parts. Not only does this create needless work for the Registry, it also has the potential to wreak havoc in oral arguments as the Registry then alters the page numbers of the compilations submitted to it. The importance of being on the same page as the Hon’ble Judges would not be lost on any practitioner! To remedy this, a single format should be prescribed- this would also result in a great saving of time for the Registry.

While the preservation of the jurisdiction of the Hon’ble High Courts under Articles 226 and 227 of the Constitution is consistent with the ruling of the Hon’ble Supreme Court of India in L Chandra Kumar v. Union of India, (1997) 3 SCC 261, one cannot help but feel apprehensive that the Tribunal might just become an additional layer of litigation, much as arbitral tribunals have, with all it’s decisions being subject to the Hon’ble High Courts’ supervisory jurisdiction under Article 227 of the Constitution. Should the Hon’ble High Courts choose to exercise this jurisdiction broadly, matters will inevitably follow the Tribunal to High Court to Supreme Court route, prolonging rather than reducing the time it takes for a service matter to be finally disposed off.

As an aside, it is also worth pointing out that the decision in L Chandra Kumar’s case and subsequent decisions which allow the Tribunals to return a finding on violations of Fundamental Rights and the vires of legislation (except the legislation under which they are created), are not entirely convincing from a constitutional standpoint. The Constitution vests the power of judicial review qua violation of fundamental rights only in the Hon’ble Supreme Court of India and in the Hon’ble High Courts, and it is not clear how these powers can be delegated. If they could there would be a strong case for allowing writ petitions to be filed in the lower courts as well.

Key Points for Filing an Application Before the Tribunal

Applications have to be on A4 paper with 1" margin on the right and 2" margin on the left. Again, some consistency in terms of paper size is desirable, as the Hon’ble Delhi High Court and the Hon’ble Supreme Court of India both use legal paper.
The format is prescribed in Form I of the Procedure Rules.
Jurisdiction is determined by Rule 6 of the Procedure Rules.
Each Annexure has to be attested by an advocate or a gazetted officer in the manner prescribed by Rule 5 of the Practice Rules. This proves to be a tedious task and permitting a single affidavit to be filed with respect to all annexures would be vastly preferable.
Duplicate indexes have to be made for each compilation, along with Form II from the the Procedure Rules. These serve as filing proof.
Vakalat has to be as per Form 12 of the Practice Rules.
Applications have to be accompanied by a demand draft/postal order for the amount prescribed in Rule 7 of the Procedure Rules.

In the meantime...

2009-08-31T18:33:00.000+05:30

Courts are often about waiting, even for lawyers. There are days when nothing seems likely to happen, no matter appears likely to reach and no client or solicitor seems particularly anxious to get you to work. Your option seems to be only endless rounds of chai in the canteen or some desultory conversation in the library or corridor about nothing much in particular. On days like this, if the weather permits, the best thing to do is to take a walk through the living history that is Delhi. Stop talking and start walking or, what an idea sirjee, walk while you talk to that pesky client who insists on a phone conference.

The easiest way to the seventeenth century, is through that 21st century marvel - the Delhi metro. A token to Chandni Chowk will bring you within 15 minutes, into the teeming confusion of what was the nerve centre of the once most populous city in the world. Around the year1670 when Aurangzeb ruled Delhi, it had that distinction and is likely to regain it in the next decade or so. Get off at Chandni Chowk metro station and take the exit towards Chandni Chowk and the Red Fort. As you emerge overground from a rather long escaltor ride, walk towards the Shani Temple. Shani or Saturn needs to be appeased by those whose uncertain destinies are often decided by a conjunction of malevolent judges and underprepared lawyers. A small donation of cash or token offering of oil seems somewhat appropriate in the pious hope that at least Shani might not impede the next occasion that you are called to face the Supreme Court in all its awful majesty.

Follow the stream of people going in single file into a narrow gateway by the side of a public urinal. You will proceed single file with an equal body of people passing through from the other side. You will be irritated at the bottleneck at the end where to your left you will find a crush of five or ten people sinking into a kiosk. They are waiting for their dahi-bhallas or aloo tikkis from Natraj. The dahi bhallas laced with chutney and garnished with pomegranate are the perfect antidote to a hot summer's day. A plate costs around 20 rupees and often suffices for for two people of moderate appetites. Moderation is advised, as a walk through Chandni Chowk starts off as an exercise in egalitarian epicureanism which degenerates into unmitigated gluttony.

As you lick the remnants off your sticky fingers look across the road and you will spot Kuwanrji Dal biji wallah. . Some dalbiji and sohan halwa might be bought and packed for future consumption when you want to savour the tastes of chandni chowk over a late night movie in the comfort of your own home. It is time to walk into the lane by Kuwanrjis lead by the smell of parathas frying in desi ghee. You are in the famous parathe wali gulli home to four paratha shops and a huge number of bridal saree shops. This is the ultimate retail destination when your spouse wants to shop and you want the ultimate comfort food.

The pure ghee parathas come with a variety of fillings including nimbu(lemon), mirchi(chilly), rabri, khurchan (milk sweets) and mewa (dryfruit). The sweet parathas make for a wonderful desert after you tickle your tongue with the mirchi and the nimbu. The parath paratha is also worth trying with its many layers being fried to a crisp and neatly complementing the pumpkin sabzi and other accompaniments. You would do well to ask for bottled water and also to have some dahi on the side if you are unused to spice. At this stage you are fortified to now brave the milling crowds of Delhi6. Head out to the main road go past Kunwarji at the corner and turn left on Chandni Chowk. You will have your back to the red fort and will be facing towards the Fatehpuri Masjid. Walk on towards Nai sarak.

Just short of Nai sadak, despite the sensory overload of dust, cowdung, autorickshaw fumes and the like, the subtle smell s of mogra, gulab, sandal and other essential oils may tickle your nose as you pass the shop of Gulabsingh Johrimal. This shop has been in business since 1816 and is thus a shade under 200 years old. Its essential oils with their dispensers and diffusers make for good gifts and are always welcome additions to any house. Rumor has it that Madonna sources her bath oils from a place like this in Chandni Chowk but well that might just be rumour.

A few purchases later it is time to head for more food at Chaina Ram's near the Fatehpuri Masjid. As you walk towards it look across the road for a large elongated building in green and white. This is Chunamal ki Haveli. Lala Chunamal was one of the richest men in Delhi after the troubles of 1857. The Fatehpuri Masjid was sold to him in 1857 for use as a godown. He paid a princely sum of Rupees 19,000 in those days. When things settled down, twenty years later he restored the masjid back to the Muslims in return for a few villages. His Haveli is one of the few intact and well maintained havelis in Chandni Chowk. His descendants still live here in a splendour of Belgian and Venetian glass chandeliers.

The Fatehpuri Masjid was built by one of Shahjahan's wives.It has two minarets on both sides besides a large dome. It has three gates: One is right in front of the Red Fort and the remaining two are in the North and south. Khari Baoli is in the north end and Katra Baryan is towards the south of this mosque. By the main door on Chandni Chowk is Chaina Ram's Sindhi Confectionery. It is a winner of the Times food award. Urmila Matondkar is among the many fans of its sev barfi though I personally favour its Karachi Halwa in its pista avtar as a sureshot way to woo my wife. One of the owners Hari gidwani is a cricketer and a friend of several lawyers including Arun Jaitley. Walk towards Khari Baoli and you will have all the spices and dry fruit of the world at your purse's command. From the humble coriander to the extermely pricey morel (an expensive mushroom)the place has it all. I find myself ending up a few thousand or so rupees poorer each time but the proud owner of several kilos of assorted dry fruit.

Walk further on Khari Baoli past the other gate of the Fatehpuri Masjid till you come to the Gadodia Market. This is a three story grey building most easily identified by the overpowering pungent fumes of red chillies which are traded here in astronomical quantities. Get into the market and stay on the left. Walk past several spice merchants clutching a hanky firmly to your nose to avoid the inevitable snuffles that you would otherwise be prey to. On your left you will come to a staircase. Go right up the staircase and climb all three storeys of it till you come to the terrace on the fourth floor. From the terrace you can look down upon the Fatehpuri masjid, see the devout at their ablutions and prayers. You have a direct aerial view of the entire panorama of Chandni Chowk from the Fatehpuri Masjid to the Red Fort. In fact you have the reverse image of the view that that the Indian Prime Minister has as he says "pyare deshvsiyon", every 15th of August. A look around the terrace gives you a peep into several old Delhi houses and you almost expect someone to sing "Genda Phool" from the film Delhi 6. Click away at the horizon where you can conceivably capture Connaught Place and the Jama masjid in a single frame with a suitable wide angle lens.

Get down to road level and walk back into Chandni Chowk. The building on the other side is Coronation building. At the T point where the building faces Khari Boali is a small lane called Kucha Ghasiram. Step inside and to your left you will see a INTACH signboard for Namak Haram ki Haveli. Only some fragments of the gateway remain. The owner was one Bhavanishankar Khatri who was a general in the army of Yashwantrao Holkar. He served his master so well that he lost an arm in battle saving his life. However at the crucial battle of Bharatpur he did not turn up having probably been won over by the British. The Haveli and a jagir in Dehi were given to him but the local populace always called it Namak haram ki haveli . The street urchins of the day had a merry time calling the one armed old man namak haram behind his back and running away whenever he chased them.

Walk out of the alley into Chandni Chowk. Coronation Building curves from the Fatehpuri side into Chandni Chowk. Towards the end of the building you will find Ved Prakash Lemon Wale. This is a shop selling "banta" the lemon soda, served with traditional soda from an old world bottle with a marble for a stopper. The mixture of masala, lemon and a slight fizz is the perfect apertif to your long march. Now hop onto a cycle rickshaw for the ride back to the metro station. You are back in court in fifteen minutes from the time you step on to the train. If your matter still does not appear likely to reach, you might as well stop for a coffee at the Metro interchange in Rajiv Chowk and contemplate walk in the Lodi gardens. But that is for another day......

Trawling the corridors.....

2009-08-31T17:23:00.000+05:30

What’s the common artistic thread that binds Arvind Varma and Ninad Laud with the likes of Soli? While Soli’s gift in this particular form of art is legendary, one needs to painstakingly comb the corridor to spot the hidden talent of the other two gentlemen in question. What is called for is a healthy dose of caffeine combined with a good measure of cajoling. Not really a hardship for the pleasure of the company of an array of illustrious names, both from the bar and the bench. If its beginning to sound complicated, the common thread my friends, is the art of good, old fashioned mimicry. As other dedicated loiterers as my witness, we are not talking about amateurish stuff here but stellar performances. Since all good things in life come at a price one has to earn the privilege of this distinguished company through one’s own devices. Suffice to say, the end result is far from disappointing.

With Sanjay Hegde busy planning the Old Delhi walks, (last heard he was negotiating special passes for lawyers with the Delhi Metro), some other walks nearer court have also generated interest. While the path to the Taj Mansingh is a well trodden one, now Sunder Nagar also promises heavy legal traffic. Massive congestion can be expected around these areas between 9 to 10:25 A.M.

Moving on to a walk down the memory lane, Mr. Bobde recounts some of the lesser known and hugely amusing anecdotes from the life of Justice Vivian Bose. It seems Justice Bose was in the habit of hiking incognito. In war time, Mrs. Bose being a foreigner had to report to the nearest police station every day or every week. On one such occasion, Justice Bose in his usual attire of shorts, shirt and a stick went to an out of the way police station with his wife and her foreigner friend. When he told the police constable his name and the purpose of his visit, the constable remained unimpressed. First of all the policeman did not believe that he was Justice Vivian Bose. But the policeman’s further enquiry was interesting; he observed that one foreign lady with him was good enough, supposing she was his wife but why two? For a long time all three of them were made to sit on the bench till the Inspector finally returned from his afternoon nap. It was then that amends were made, apologies and salutes offered and Justice Bose left the police station as “Justice Bose”!

We have a vested interest in preserving our institutions

2009-08-31T17:09:00.000+05:30

The significance of the inscription “Advocate, Supreme Court of India” on visiting cards has been mulled over many a cup of coffee in the esteemed corridors of our venerated institution. The general consensus seems to be that whether worn as a badge of honour or merely used as an appellation to impress the recipient, it reflects a conscious attempt by both the believers and the cynics to capitalise on their association with the institution. On this inference one would logically assume that the beneficiaries who derive their sheen from the dignity of the institution would strive to guard it zealously.

But every now and then one sights the same beneficiary pioneering a perfect solution to overcome the fundamental values on which the system rests. The irony that escapes notice is that the benefit for the pioneer is short lived but the loss suffered by the institution far reaching.

One such practice which has emerged in the Supreme Court deserves a special mention. It seems that for a matter to get transferred out of an assigned bench, all that a counsel needs to do is express appropriate embarrassment in appearing before the concerned bench. One may also achieve the same result by alleging bias against the bench.

One cannot and does not dispute the right of the litigant to be heard through the counsel of his choice in an unbiased manner. But under no canon of interpretation can the term “counsel of choice” be stretched to accommodate “bench of choice”. Calendar of the court, formation of bench and assignment of cases to different benches will always fall outside the purview of choice. Similarly, a reasonable apprehension of bias has always been recognised as a ground for recusal. It is only when “apprehension simpliciter” assumes the form of “reasonable apprehension” that the matter becomes a cause for concern.

The lament of the Supreme Court on the rise of the practice of seeking recusal on frivolous grounds in R.K. Anand vs. Registrar, Delhi High Court, is telling. Speaking for the Bench Justice Aftab Alam notes thus:“We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a judge (who is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the judge concerned but what is of far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences.”

Similarly The Times of India has reported that Justices Bilal Nazki and A R Joshi expressed anguish when hearing two back to back cases where lawyers had accused Judges of the Bombay High Court of “bias”. "This is an unfortunate trend that will harm the entire judicial system,'' said Justice Nazki.

Law as an institution partly draws it’s sanctity from the widely held social belief that it is a neutral system administered by an impartial judiciary. For a litigant, the allure of the court of law is the promise of an environment free from manoeuvre. Any attempt to overreach this institution through manipulation, which is the hallmark of the world outside, results in the loss its unique identity. What is sacrificed at the altar of one satisfied client is not just the sanctity of the institution but also the faith of potential justice seekers. If the courts of law become yet another forum for the practice of endless intrigues why would an ordinary mortal venture here?

But who is listening? While the Hon’ble Judges lament, we are preparing for an era of aggressive clients and obliging lawyers blithely expressing one apprehension after another in their pursuit of success. A double edged sword yes, but who cares as long as it serves the purpose. A few resolutions, a few articles, a few criticisms in the corridors just add to the “glamour quotient”.