REPORTS & ESSAYS
“Either preserve the institutions that we envisioned to build or allow them to be undermined”: Anand Grover
April 12, 2018
On the do’s and don’ts of good lawyering, much has been written. This is especially true for India, where there is the example of the father of the nation, Mahatma Gandhi, who famously said, “I realised the true function of a lawyer was to unite parties riven asunder.” He justified this by saying, “I lost nothing thereby- not even money, certainly not my soul”. He used his position as a lawyer in South Africa to launch and experiment with the practice of non-violence as a means of resistance on a number of issues apart from apartheid, even protesting against the proposed ban by law against marriages between Hindus and Muslims.
Very few of us will be able to emulate the late Mahatma, but lessons learnt from him are easy to understand. As a lawyer one must not only be grounded in ethics but must also fight against injustice, wherever one finds it. For according to the Mahatma the soul has to be kept intact and not lost.
Most of us are familiar with the ethical rules of the Bar Council of India, which require us in our duties to the Court to respect the Court; act in a dignified manner; not to communicate in private to a judge; refuse to act in an illegal manner towards the opposition; refuse to represent clients who insist on unfair means; refuse to appear in front of relations; not to represent establishments of which one is a member; not to appear in matters where the lawyer has pecuniary interest. Similarly, the duties towards clients are similarly set out and one must particularly note the following- full and frank disclosure to the client of the lawyers interest with connections with the party; upholding the clients interest fearlessly; not to suppress material evidence; not to disclose communications between the client and himself; not to initiate litigation; not to negotiate directly with the opposing party etc.
Those who are practising lawyers are best to judge whether most members of the bar actually adhere to these ethics. As these are actionable issues by the BCI one would expect them to be adhered to. But I have been surprised to find that some of the leading members fail to adhere to them and there is nobody to take them to account. Indeed, the level of ethics at the bar has fallen. That is the case with most of our institutions. It is a matter of concern that this is the case also with justice delivery system. That is why this topic today is of critical importance. For historically we are at a juncture today where we can either preserve the institutions that we envisioned to build or allow them to be undermined with devastating consequences to our society.
Upholding Constitutional Morality
The lawyer in India has to work within the constitutional framework. The constitutional framework contains what has been called constitutional morality. This was poignantly teased out by Justice AP Shah in the Naz Foundation case. These constitutional values are important not only for society but for the justice delivery system and all it’s components, namely, the judiciary, the bar, the administration and even the litigants. The bar and the bench, as integral parts of the justice delivery system, are duty-bound to uphold these constitutional values on a day in day out basis. This is important for the institutional integrity and for the justice delivery system to survive in a healthy manner. Please appreciate that if any one of these components of the justice delivery system does not practice these values they undermine the institution of the justice delivery system itself.
What are then these values of constitutional morality? In the condensed form they find their place in the Preamble of our Constitution, which talks of securing to all its citizens’ justice, liberty, equality, dignity and fraternity assuring the dignity of the individual. The Preamble contains the core values of our Constitution and our vision of society. I would submit that apart from the ethics enunciated by the Bar Council rules, the values laid out in the Preamble of the Constitution are as important to uphold for a lawyer as the ethical practices under the Bar Council rules.
Let us take equality for example. India is perhaps the nation of highest levels of inequality in the world. The growing inequality in economic terms in India has been brought out in the latest Oxfam report titled, "Widening gap of inequality in India". The Oxfam report points out that inequality is actually increasing, globally, and particularly in India. However in India this is compounded by tradition of inequality on the basis of caste, religion, gender, ethnicity, marginalisation and a host of other factors.
Resist Inequality at Every Step
One would have thought that in this situation, lawyers would become the strongest proponents of the fight against inequality. Indeed, they are in court, but unfortunately, the moment the lawyer leaves the courtroom, the lawyer forgets about equality and is either practicing and perpetuating inequality or is a silent spectator to it on an everyday basis. How many of us treat our staff with equality, respect and dignity? How many of our lawyers pay their clerks even minimum wages? How many of us promote gender equality? How many of us sit and eat lunch with our clerks on the same table. The very unfortunate answer is: very few!
I must tell you of an experience that I had when travelling from Mumbai to Alibagh. We were travelling with our driver and a friend. We halted at a restaurant to have lunch. Naturally our driver sat with us for lunch, while the friend had gone to the restroom. When she came back she quietly whispered in my ear the question, “How come the driver is sitting on the same table as us?” I politely told her that if she wanted a separate table, I would arrange that. However, embarrassment got the better of her and she joined us on the same table with the driver. This is the state of affairs in India, in contrast to a developed country such as England where such behavior is simply unacceptable.
Say No to Nepotism
How many of us give adequate remuneration to our staff? I had the very unfortunate experience in Mumbai in my early days as lawyer. I used to have a clerk of a very senior lawyer and of course, a very successful lawyer, coming to my chambers regularly asking money for various things. When I asked him why he had to do this, he told that his boss not paying him even an adequate wage. Of course, his boss would use the doctrine of equality in court day in day out. Though I refused to believe it, he told me that this was the practice amongst a lot of lawyers, particularly senior lawyers.
Take another instance, how many of us advertise about recruiting fresh lawyers to our chambers. Again the answer is very few. Most of the prospective lawyers get jobs in law firms or senior lawyers because of their association with other lawyers. Kinship, friendships, and relationships in the community is the way to get jobs for lawyers. This allows for self-selection for particular communities to get jobs. The traditionally discriminated and marginalized communities, like persons from the Scheduled Caste and Scheduled Tribal communities do not have access to the chambers of senior lawyers or law firms.
One of our juniors told us an interesting story. Her uncle was a prominent solicitor in Mumbai, though she herself was outside Mumbai. She applied to a prominent senior lawyer in Delhi for an internship. She was asked whether she had any prominent lawyers or judges in her family. She was so surprised that she did not pursue the internship.
As a result of these practices in the legal fraternity perpetuate systems of inequalities that exist in society. Bombay, and I use the word advisedly is a classical example of this. Even if you do become a lawyer, you are unlikely to get briefed in the prestigious cases in Bombay. There is a closed-door system, which in Bombay, is conduited through the law firms.
Affirmative Action Starts with You
Remember Dr. Ambedkar. He hardly had any work in the Bombay High Court. Ideally a chamber of a senior lawyer and a law firm should have lawyers, clerks reflecting the diversity and plurality of our nation, in terms of region, caste, religion, gender etc. We would then make a significant contribution to the stability of the nation.
When I started practice, I also followed these norms in terms of recruitment. My brother, also a lawyer in England, had a long argument with me on this. He rightly told me that if I believed I equality, which I felt I did, then I should advertise for vacancies that we had in our office. After that, in our chambers we started advertising for filling up vacancies. Though it doesn’t solve the issue of inequality, advertising for applications to fill up vacancies opens up the window of opportunity for those who may not have access to them. Of course this has to be coupled with a proactive practice recruiting on the basis of merit and not on the basis of kinship, community etc.
Take another instance of time allocation for matters and arguments and management of time in courts is another facet of equality. I believe that this is an area where the Bar should take the leadership.
Resisting Hierarchy in Courts
As everybody knows that there is unwritten hierarchy in courts. Seniors are treated differentially when compared to juniors. This is even in terms of allocation of time. In fact the seniors have the license to take as much time as they want, particularly in the Supreme Court. This seriously undermines the integrity of our judicial systems and contributes heavily to delays in the system, not to speak of unprepared arguments.
Better Time Management
Unfortunately, there is no management of time in courts in India. Ad-hocism that exists in our system today perpetuates the inequality and undermines the justice delivery system. In Supreme Court and most of the High Courts dates are fixed and the matters are listed without planning for how the time would be utilised when the matter comes up. Even matters of an administrative nature, such as taking on record of written statements, replications replies, rejoinders, are being handled by judicial officers, whose time is being wasted in courts. Moreover, in final hearing matters it is seen that seniors get disproportionate time and differential treatment. On this account it is sometimes not the merits but the weight of the senior lawyer who appears. I remember that the first case I argued in the Bombay High Court, I was pitched against a “weighty senior”. The judge made short work of my arguments being impressed by the arguments of the senior, resulting in my losing the case. It was only in Appeal that I succeeded.
When matters appear in court it is all upto the judge and the lawyers to decide what is to be done. All too often on a request by an advocate adjournment is granted for the asking by most courts. This has to stop. All administrative matters should be handled by the Registry and once the matter comes to court there should be no adjournments whatsoever. Even in trials they don’t go on day to day. Matters fixed for taking on one witness on one day and another witness on another day. As a result, trials can go on forever, and they do. This results in injustice.
Thus lack of time management results in increasing breakdown in the system that we have today. If the justice system would be subject to audit in terms of only time management, apart from the costs, it will be the most inefficient system in any sector.
Time-bound Delivery of Justice
It is incumbent upon the members of the bar and the bench that there is a system where time is well managed and justice is delivered in accordance with the law and efficiently and reasonably quickly.
Rather than simply criticising this practice I am suggesting simple ways of making things work more efficiently while promoting equality.
For instance, urgent matters can be automatically listed on the day as the first group following the filing if it is done by a particular time. This practice is followed in the Delhi High Court and the system works efficiently, unlike the Bombay High Court where time is wasted for urgent mentioning.
Secondly, the final hearing matters either on motions or otherwise need to be structured so that there are no adjournments and are worked within a week with a flexibility of couple of days here and there. Thus a judge knowing that the roster would be for a period of 10 weeks of 6 months can fix matters knowing how many final hearing matters s/he can complete. Thus, if a judge can do 3-4 matters a day final hearing, that would work out as 150 matters for ten weeks. All those 150 matters may be listed on the first day of the term when dates are allocated on the matters and subject to adjustment of a day here and there the matter must be worked out within a week. This allows all parties, judges and lawyers to know in advance the dates and the real possibility of the matter being decided within that particular week. This is not a theoretical postulate. This was the practice that Justice Hosbet Suresh used to follow and everyone at the bar and the litigants were very happy with it.
Thirdly there is no need to allow for adjournments if the above practice is followed. Matters can then go on from day to day.
Fourthly, time should be allocated for each matter so all the parties get similar time to argue the matter.
Finally in all final hearing matters a short note with judgments should be available for the judge. In this respect, the judge should be assisted by able clerks to make a similar note.
That apart it should be realizsed the justice delivery system is not only the prerogative of judges to decide how courts should run, irrespective of the consequence in terms of time of lawyers or the clients. Consider on any day how many lawyers’ and clients’ time is being wasted when matters don’t go on. However the judicial system is oblivious to this. In the management of time, everyone has a stake and their views and interest must be taken in consideration. It is the duty of the bar towards good lawyering to ensure for time management is adopted in courts on rational and scientific basis, which will ensure quicker and better delivery of justice and allow for equality of time between seniors and juniors.
Allegiance to Truth
It is an accepted norm that that lawyers cannot lie. That is the mandate of law. But do we practice that? And do we enforce it? Lying on affidavit or across the bar has become second nature for an increasing number of lawyers. Per jury is an outdated legal provision in India and some would say it is a dead letter of the law. Nobody takes it seriously. Apart from legally wrong and morally repugnant I believe it is strategically wrong. A good lawyer in a trial can catch a lying witness. When I started practice some judges would take this issue very seriously. I remember a case in appeal before a Bench headed by Justice Bharucha. I was briefed for the Respondents. The Appellant started to argue. As he was lying and I wanted to interject. Justice Bharucha would frown upon any interjection. I therefore took the permission and told the Bench that not only the Appellant lawyer was lying but his submission had no support on record. Immediately Justice Bharucha asked the Appellant’s lawyer whether what I said was correct. On realising I was correct the Appeal was dismissed with costs.
I also had an occasion of correcting my junior in one case. The trial had been ordered by Justice Lodha to be expedited. I had a junior training under me at the time. I put her as my junior in the trial matter. We were struggling with one issue and I remarked in a client conference that I wished that our client had written a letter to the other side to support our argument. After the client left my junior turned around and told me, “Anand, what is the problem. I can make up the letter.” As I was visibly shocked my junior asked if she had said something wrong. I told my junior in no uncertain terms that we are paid to use our brains and not indulge in sharp practices.
No Class, Caste Divides at the Bar
In terms of attitude to cases, the tendency at the Bar is always to give importance to high profile and high paying cases. In my view, apart from it being wrong, this is a mistake. Clients, rich or poor, come to know what the attitude of a lawyer is. If the client comes to know that her case can meet the same fate as one who can pay fees, you can be sure not many clients will come. It is thus best to treat all clients equally and with equal importance in terms of time to each case. This gives the lawyer credibility and enhances her practice.
A good lawyer should understand that drafting pleadings is entirely in the lawyer’s hands, whereas arguments are only partly in the lawyer’s hands and the judgment is not at all in the lawyer’s hand. I have a rough and ready formula: A lawyer has 100% control on pleadings and written arguments, 50% control over oral arguments and 0% control over the judgment. It is thus best to make sure that drafting of pleadings is 100% upto the mark. As arguing is only partly in the lawyer’s control, it is always best to have the list of dates, note of arguments and judgments ready from day one. As judgments are not in the control of lawyer the stoic Indian attitude based on karma and fal is good antidote.
No Illegitimate Gratification/fees
Let me also talk about taking fees in cash. By the way it was a regular practice amongst seniors to charge a particular amount by cheque and about 75% in cash. Demonetisation has not stopped that. When I started my practice I told all my clients that I would only take my fees by cheque. However, my colleagues at the Bar at Mumbai, which I would submit had slightly higher standards, than most other places in India, advised me that I would not succeed in my practice of law. All I can say is that they have proved to be incorrect. I would insist that all of us follow the practice of only receiving accounted money and not receiving cash. This is important in India where despite the demonetization unaccounted money continues to be the bane of society. But this is also coupled with one’s understanding of what is needed for a comfortable existence and what one’s needs and desires are and what limits should be put on them.
It is also to do with understanding that everybody has a different path. To be a good lawyer one must be clear about one’s goals as a lawyer. I joined the bar to practice law to work for people for whom justice was not available so easily, to what we called “meet the unmet legal needs of society,” This was facilitated in the early eighties when we had perhaps the best crop of judges in the Supreme Court, Justices Krishna Iyer, Chandrachud, Bhagwati, DA Desai, Chinappa Reddy. For me their pronouncements were perfectly aligned with the Constitutional values and morality. Once a lawyer has chosen her/his goal, passion is the most important aspect makes for success.
Passion is the engine that facilitates hard work that is required for a good lawyer. I used to work for the Center for Monitoring Indian Economy, whose head, Dr Narrotam Shah gave me good advice. He told me that great ideas don’t spring from nowhere. He had a phrase: 99% perspiration and 1% inspiration. That is true for law as other fields.
Fighting our own Prejudice
As I said, it is the duty of the bar and the bench to promote the constitutional values found in the preamble. Thus it’s necessary to promote equality, dignity, fraternity etc. It is in this context that I feel that it is important to take up matters for marginalised sections of societies. Not only because they are meted out injustice which needs to be rectified through asserting their rights but also because as lawyers and human beings fundamentally we only come to know of the real nature of our fellow human beings when we work with such marginalized communities. In this context I learnt a lot for working with people living with HIV, the LGBTQI community as also groups vulnerable to HIV including sex workers and drug users. Inequality is fundamentally based on stigma and discrimination of diverse communities. It is only once that we realize that we have our own prejudices that we begin to confront inequality in society. Let me tell you about my own story of taking up HIV.
In 1987 I was asked by Dr. I.S Gilhada to take up the first HIV case in India. He had already briefed me in a number of medical matters, he knew of my scientific background as I held a degree in biochemistry. Being a leftist and ignorant about HIV at that time I just retorted that that HIV was a CIA plot. But Dr. Gilada knew me better than I did myself. The case related the Goa Public Health Amendment Act under which a person suspected of being HIV positive would be forcibly tested without consent and if found to be positive he would be forcibly isolated. Dominic Dsouza, who was a theater actor, and had donated his blood was found to be positive and was isolated in a TB sanatorium. He was treated with utter disdain. Instead of giving him food it was thrown at him as even the healthcare workers believed they would contract HIV. That Act had been challenged.
Dr. Gilada then over next few weeks explained to me about the biochemistry of HIV and also about the peculiar nature of stigma and discrimination against People Living with HIV (PLHIV). A few weeks later armed not only with the scientific background but also the notions of anti-discrimination in the context of HIV I ventured to Goa. In the meantime, Dominic had been released from the TB sanitorium. When I went to up to my room in the hotel, I noticed that the door was ajar and I saw a person sleeping in the bed of my room. Instinctively, I knew it was Dominic. The thought that went through my mind was “What is this person living with HIV doing on the bed I was going to sleep in?” Immediately I realized how discriminatory I was and the stigma that I carried about PLHIV despite being briefed on it. The reason I’m telling you this is that all of us have our own fallibilities. We are brought up like that, told not to play with this boy or that girl, because she or he is not good, bad or whatever. From that to actually imbibing constitutional values is a long road, which we begin to travel only when we interact with people from marginalized and other communities. I always say that in order to understand another person, we need to eat and drink with that person so then you can root out inequality from our minds.
Because of the work of HIV and the successful decision in MX v ZY, a case about employment of PLHIV, we started getting a lot of calls from gay men who were being blackmailed. Over a period of time we at Lawyers Collective realised the underlying problem with gay rights was Section 377 of the IPC. However you would be surprised to know no body was ready to challenge it. Ultimately Anjali Gopalan of Naz agreed to file the petition in the Delhi High Court. The rest is history. This is in contrast to what is happening today. Gay men are falling over backwards to file petitions. As you know the matter is now in the Supreme Court, curative and other petitions. In my view it is simply a matter of time and mere formality for the Court to declare Section 377 unconstitutional.
In conclusion I would say that the members of the Bar on imbibing the Constitutional values that find their place in the Preamble can do better lawyering for themselves and society and meet up to the challenge that face the justice delivery system today.
 Naz Foundation vs Government Of Nct Of Delhi [160 Delhi Law Times 277]
First published in Lawyers Collective.
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