Soli Sorabjee

‘Kaka’ Avinash Rana, Legend of the Bombay Bar, Still at the Crease at 95

He is now entering his seventh decade as a lawyer.

At the Bombay high court, some are wondering who the next chief justice will be. Some are wondering whether the authorities will finally bite the bullet and restrict oral arguments to cut down delay. Much debate is going on about who is the best judge in the high court and who is the slowest. As for myself, I am wondering whether the Bombay high court is privileged to have the oldest active lawyer in the world practising amongst them.

Avinash Rana or Kaka as he is popularly known has turned 95 years and is still in active practice. The other day, when I was twiddling my thumbs in the court library, Kaka rushed into the reading room in full regalia. I asked him where he had been and he told me he had been arguing a matter for the Union of India before the division bench. I was deeply impressed. Soon he told me that he was going to run 10 kilometres in a race a few days later. I got worried and went to my friend Uday Bobade to tell him that we should stop Kaka from running 10 km. Uday said chill, he will be fine.

Avinash Jaswantrai Rana was born on July 22, 1927 in Vadodara, Gujarat. He was enrolled as an advocate in September 1953 and designated as a senior advocate in April 1979. He joined Khurshetji Baba in the chambers of Jamshedji Kanga, popularly known in the Bombay high court as Chamber No.1. However, he essentially worked with the late Soli Sorabjee, who became attorney general for India.

He is today over 95 and has completed 69 years of practice as a lawyer. He has appeared in matters along with M.C. Chagla, as also appeared before him and would have appeared before his grandson Riyaz Chagla, had he not thought it inappropriate to do so. He appeared with Nani Palkhivala and M.C. Chagla in the bank nationalisation case and M.C. Chagla in the Kanan Devan Forest case. He appeared for Royappa, a former chief secretary of Tamil Nadu, against the chief minister of Tamil Nādu. In this case, the Supreme Court held that Article 14 cannot be confined to a mere clarification, it has a much wider convocation.

Kaka successfully appeared in the passport case which let to the enactment to the Passport Act, 1958 which regulates the grant and refusal of passport. Another case that he appeared in was Bharat Raja where the Supreme Court laid down that the adjudicating authority is required to pass a speaking order – meaning thereby that reason should be given for his decision. He also appeared with H.M. Seervai in the Judges Transfer case for the petitioners and in preventing detention cases under Cofeposa for the Union government with attorney general Niren De and solicitor general Fali Nariman. He was chief counsel for the commission of enquiry headed by Justice Srikrishna to look into the communal riots of 1992-93. He is counsel for the Union government in the Bombay high court. He appeared for the Ministry of Defence before the commission of enquiry constituted by the state government in respect of the Adarsh building in Colaba. He is a great believer in Satya Sai Baba, just like Palkhivala was.

He is an enthusiast of cricket and had the privilege, as a young lad, of playing with the great Amar Singh, on whose untimely demise the famous commentator Bobby Talyarkhan said that with his death India will be playing with only 10 players. He met Ranjitsinghji and Duleepsinghji. He was chairman of the Bombay Public Service Commission. He played quite a few matches against Vinoo Mankad and played cricket for the senior advocates against the chief justice’s team till the age of 88. Now he walks 7 to 8 km every single day and intends to participate in the January 15 Mumbai Marathon in the 10 kilometres event.

In my view, he is the oldest active advocate in the world. In any event, the most active.

Harsh A. Desai practices law in Mumbai

Watch | ‘A Great Name in Law and a Man of Humour’: Dushyant Dave Remembers Soli Sorabjee

Former attorney general Soli Sorabjee passed away on April 30 at the age of 91.

Dushyant Dave, himself a leading lawyer and former president of the Supreme Court Bar Association, has said Soli Sorabjee, who passed away on April 30 at the age of 91, will be remembered as one of India’s greatest attorney generals. He said Sorabjee was one of the biggest names in the Indian legal profession and looked up to by all lawyers.

In a 15-minute interview to Karan Thapar for The Wire, Dave spoke of Sorabjee’s passion for jazz, his talent for mimicry and his spontaneous but never hurtful repartee with heart-warmingly illustrative anecdotes.

This is a 15-minute interview with Karan Thapar which assesses both Sorabjee’s contribution to the legal profession and the many important cases he was a part of and also brings alive Sorabjee’s personality, humour and capacity to charm people, including judges who disagreed with him.

The Passing of a Legend: Soli Sorabjee’s Contribution to the Evolution of India’s Democracy

Sorabjee was the Attorney General for India twice – first from 1989 to 1990 and again from 1998 to 2004.

For Soli Sorabjee, who began his legal practice in 1953, it is no wonder that his professional achievements over the years were a reflection of his contribution to the quality of India’s democratic life, as articulated in its court rooms.

Landmark judgments owe their debt not just to their author judges, but to the countless unsung senior lawyers who argued before them using their skills which they learnt from the profession: perception of legal principles, close train of logic and command over language and eloquence. It is the legal debates in the courtrooms which refine the judges’ thoughts and help in the development of law.

Sorabjee was the Attorney General for India twice – first from 1989 to 1990 and again from 1998 to 2004. But his contribution to the evolution of India’s democracy can be gleaned only from the innumerous judgments which sum up his arguments in cases in which he appeared and argued before the judges.

It is true that all lawyers tend to be client-centric. Soli Sorabjee was no different from others in that he argued what was best for his clients; but the respect which he earned from those who practised the profession, and the litigants stemmed from his legal principles, whether or not they formed the basis of the judgments, which resolved the disputes before the courts.

Take the basic structure doctrine, as evolved by the Supreme Court in the Kesavananda Bharati case. To him, the decision in this case might not be justifiable on sound juristic basis. But Sorabjee was clear that every country has to work out its constitutional salvation taking into account its peculiar problems and specific needs. Therefore, he believed that thanks to the doctrine, no party having absolute majority in either House of Parliament can effect a constitutional amendment which would make India a theocratic State by providing that members of certain communities or religion alone can hold the office of president, vice-president, prime minister and the Chief Justice of India.

Also read: Why Uncertainty Still Surrounds the Birth of the ‘Basic Structure Doctrine’

He was also categorical that thanks to the doctrine, provisions for free and fair elections cannot be repealed from the constitution, nor can the constitution be amended to the effect that elections would take place if and when parliament determines instead of every five years. To this, he also added that judiciary cannot be deprived of the power of judicial review, nor can the rule of law be abrogated. Sorabjee was of the firm view that federalism cannot be obliterated and states cannot be made vassals of the Centre. “In the Indian context and experience, these are tangible and substantial gains resulting from the basic structure doctrine and a bulwark against further erosion of basic fundamental rights,” Sorabjee said once.

The respect Sorabjee earned for his contribution to the working of Indian constitution also stems from his off-the-court interventions in terms of erudite columns to newspapers. In these, he simplified complex questions concerning constitution and law in layman’s terms. Thus, judicial activism, to him, denotes a judiciary in which judges discharge their functions in a vigorous and decisive manner to achieve an end. This ‘end’, according to him, is dispensing justice with a view to righting wrongs, enlarging and protecting the human rights of our people and fashioning effective remedies. Another instance of judicial activism, he suggested, is the rule about giving reasons for a decision even when the statute does not expressly so provide. This rule, he believed, promotes good governance and fair administration by ensuring transparency and openness in decision-making.

Sorabjee was convinced that Supreme Court can deduce fundamental rights, even if they are not expressly mentioned. Freedom of the press, right to privacy, right to travel abroad, right to education, freedom from cruel and inhuman punishment or treatment are all such rights which enlarge fundamental rights of our people, and a result of activist judicial approach, he once explained.

Sorabjee invited criticism from civil society for advising the Indian government as the AG against seeking the extradition of the former chairman of the Union Carbide Corporation (UCC), the late Warren Anderson, from the United States in connection with his trial in the Bhopal gas leak disaster case. Sorabjee had defended the cause of the gas victims before the 1989 settlement was reached under the Supreme Court’s supervision, clinching the measly $470 million package as compensation.

Also read: The Judiciary Needs To Be Gently Reminded About the Constitution and Its Key Concepts

Later, as AG, he supported a review by the court of the 1989 settlement, and succeeded in persuading it to reinstate the criminal charges against the accused, which included Anderson, and which were sought to be extinguished by the settlement. Sorabjee advised the then Atal Bihari Vajpayee government at the Centre not to pursue the extradition proceedings against Anderson because they were unlikely to succeed. The inordinate delay in seeking Anderson’s extradition, and his advancing age raising a humanitarian concern, were cited as grounds against pursuing extradition by Sorabjee.

Sorabjee also felt that it would be futile to seek someone’s extradition without first obtaining some prima facie evidence that he might be guilty. In an interview to this writer, Sorabjee candidly admitted that his opinion did not prevent the Centre from going ahead with the extradition proceedings, if it wanted to. “Maybe I could have stopped saying that proceedings for his extradition are not likely to succeed. I need not have said that the same may not be pursued. That might have satisfied the victims,” he responded, when I persistently asked him how evidentiary links be furnished unless the Union Carbide Corporation, which Anderson headed, allowed access to its records in the US. That was quintessential Sorabjee: an intellectual giant, and an honest lawyer, deeply sensitive to the concerns of the common man.

Sorabjee’s contribution to Supreme Court’s jurisprudence will long be remembered especially in cases like police reform (Prakash Singh vs Union of India), and imposition of president’s rule (S.R. Bommai vs Union of India), in which he strove to use constitutional principles to resolve contemporary problems of politics and governance.

Legal Luminary Soli Sorabjee Passes Away Due to COVID-19

The lawyer, who appeared in several cases of constitutional significance, also twice served as the attorney general for India.

New Delhi: Distinguished jurist and former attorney general Soli Sorabjee, who appeared in several historic cases like Kesavananda Bharti and S.R. Bommai, passed away due to COVID-19 at a hospital here on Friday.

The 91-year-old is survived by wife, a daughter and two sons.

A recipient of the Padma Vibhushan, the country’s second-highest civilian honour, the renowned human rights lawyer served as the attorney general for India from 1989-90 and then from 1998-2004 during the tenures of V.P. Singh and Atal Bihari Vajpayee respectively.

President Ram Nath Kovind, vice president Venkaiah Naidu and Prime Minister Narendra Modi were among a host of leaders who condoled the passing away of the eminent jurist.

The prime minister described him as an outstanding lawyer who was at the forefront of helping the poor and downtrodden through law.

Chief Justice of India (CJI) N.V. Ramana also condoled the demise of Sorabjee.

“I am deeply saddened to learn about the passing of Shri Soli Jehangir Sorabjee, former attorney general of India. In his nearly 68 year-long association with the judicial world, he made immeasurable contribution in enriching the global jurisprudence of human rights and fundamental right,” he said.

Considered one of the best constitutional law experts, Sorabjee wrote several books on laws and justice, press censorship and the Emergency, and vehemently fought against human and fundamental rights violations.

One of his recent court battles pertaining to fundamental right violations was the Shreya Singhal case in which the Supreme Court in 2015 agreed to his submissions and struck down a provision in the Information Technology Act relating to restrictions on online freedom of speech and expression.

The top court held that section 66A was unconstitutional as being violative of freedom of speech guaranteed under the Constitution, the point put forth by Sorabjee.

Considered close to Vajpayee, Sorabjee had led India’s fight in the International Court of Justice (ICJ) when Pakistan sought compensation from India for downing its naval patrol aircraft Atlantic in 1999 just after the Kargil war.

The ICJ at the Hague ruled in India’s favour after taking note of submissions of Sorabjee and dismissed Pakistan’s claim for compensation, saying it had no jurisdiction over the matter.

He also appeared and worked for the Citizen’s Justice Committee which represented victims of the anti-Sikh massacre.

Born in a Parsi family in 1930, Sorabjee enrolled at the bar in 1953 and was designated senior advocate by the Bombay high court in 1971.

Sorabjee appeared in many important cases including the Kesavananda Bharati matter on the basic structure doctrine and the S.R. Bommai matter relating to invocation of President’s rule in states among others.

He was appointed by the United Nations as a special rapporteur for Nigeria in 1997 to report on the human rights situation in that country and later became a member and the Chairman of the UN-Sub Commission on the Promotion and Protection of Human Rights, from 1998 to 2004.

Sorabjee was also a member of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities since 1998.

He has also served as a member of the Permanent Court of Arbitration at the Hague from 2000 to 2006.

Sorabjee, who was known for his reticence in filing PILs, was so overwhelmed by the terror strike in Mumbai in 2008 that he proceeded to file one in the top court, seeking directions to train and equip the police force to tackle terrorists.

A Tribute to My Guru, Ashok Desai

Ashokbhai’s life was larger than the law. He was a person of eclectic interests and of a commitment that traversed several fields of public activity.

A legendary lawyer, a valued mentor, a loyal friend, a bon vivant and above all else, a good and gentle human being. The passing of Ashok Desai in Mumbai on April 13 leaves a void in the lives of many. For me, the loss is very personal – I had the good fortune of working as a junior in his chambers in New Delhi from 1998 to 2003.

The Bombay Bar of the 1950s and 60s produced a virtual galaxy of stars who shone bright both there and at the Supreme Court in Delhi. Desai was one of those stars, along with Fali Nariman, Soli Sorabjee, Anil Divan and Tehmtan Andhyarujina (to name just a few).

Desai was born on December 18, 1932. His father Haribhai was a criminal lawyer with substantial practice. After finishing school in Mumbai, Ashokbhai graduated from the prestigious Fergusson College in Pune and received the LLB degree from the Government Law College in Bombay. His education thereafter took him to England, where he pursued a degree in economics at the London School of Economics and was called to the English Bar from Lincoln’s Inn, both in 1956.

The first phase of Ashokbhai’s professional life was spent in Bombay. He started practice at the high court in 1956, in the chambers of S.V. Gupte. Ashokbhai’s practice straddled the gamut of commercial cases (he was regarded in particular as an authority on competition law), criminal cases and constitutional/administrative law disputes. Celebrated amongst the cases he argued in those years were a challenge to the pre-censorship on the grounds of obscenity of Vijay Tendulkar’s play Sakharam Binder, and the public interest litigation which led to the downfall of chief minister A.R. Antulay on the grounds of corruption. He earned a reputation as a fierce defender of civil liberties and a prominent proponent of Constitutional values, whilst also becoming a much sought after commercial lawyer. He taught both at the Government Law College and the Bombay College of Journalism, and was the legal correspondent for the Times of India. The Bombay high court designated Ashokbhai as a senior advocate on August 8, 1977.

He moved to Delhi in 1989 as the solicitor general in the V.P. Singh government. He was part of a star-studded team of law officers, which was headed by Sorabjee, and included Santosh Hegde (later a judge of the Supreme Court), Arun Jaitley, Kapil Sibal and Prashant Goswami. The government did not last long, and Ashokbhai went back to private practice in December 1990. He was appointed attorney general for India on July 9, 1996, and remained in office until May 6, 1998, through the governments of Deve Gowda and I.K. Gujral.

During these three decades in Delhi, Ashokbhai was the “go-to” senior counsel for the aggrieved citizen, celebrated corporate clients, and public authorities alike. He was consulted by presidents and prime ministers (regardless of political colour), by professors and journalists, by traders and trade unions. His caseload continued to be varied – including the Narasimha Rao case involving parliamentary privilege, the Narmada dam case, and a challenge to the Salwa Judum established by the Chhattisgarh government.

Ashok Desai. Photo: File

But Ashokbhai’s life was larger than the law. He was a person of eclectic interests and of a commitment that traversed several fields of public activity. He was a connoisseur of classical music and dance – many a briefing was made much more enjoyable with Hindustani or western classical music playing in the background. He read voraciously – from esoteric points of law to historical texts, from Sanskrit plays to philosophical treatises (Buddhist philosophy particularly appealed to him), from Hillary Mantel to the latest mystery novel.

Ashokbhai’s company was always a delight, his conversation varied and enlightening. His knowledge and his opinions would be shared unhesitatingly, but with gentleness of manner and complete openness to a contrary view. His love of music, of literature, of good food and stimulating conversation was evident. He engaged himself deeply in a variety of interests. Unlike many high achievers, Ashokbhai was not keen only to share his own views and experiences, but to hear from the others in the room. He would elicit information and opinions from the great and the good who populated his life, and just as enthusiastically from the youngest person in the room, sitting shyly in the corner. He was a person of immense intellectual curiosity and a desire to remain contemporary in his skills and his interests.

He was fascinated by every new technology. (In his later years, his iPad was his constant companion – which he used to access his books, his music, his films.) These qualities earned him a scintillating array of friends – including artists, writers, journalists, social scientists, civil servants and of course, a few lawyers as well. His wife Suvernaben (herself an accomplished Manipuri dancer) and he would host intimate sit-down dinners in their home several evenings a month – animated evenings of meaningful conversations and a repast fit for royalty.

For me, the association of two decades and more was both professional and personal. He quickly became not just the senior with whom I worked, but a shoulder to lean on whenever the need arose. He was a guide, a sounding board, and his life was a model to be followed.

To my mind, Ashokbhai embodied the concept of mentorship. He led by example. He worked hard and expected the same of us. He did not value a unidimensional life of work alone and did not expect his juniors to either. His style was not hectoring or lecturing, but gentle and accommodating. Everyone’s views would be heard – the client, the established lawyers assisting him, and the raw juniors present at the briefing, who least expected it. A strong argument from any source would be acknowledged and appreciated, a weak one gently discarded. I remember one occasion when I suggested a point which met the latter fate, only to find the judge taking the same view the next day in court. Ashokbhai developed the point successfully, but not before turning to me and whispering with a straight face, “Fit for elevation, eh?”

Even on the eve of an important hearing, or while preparing a complex point, there was rarely a raised voice or a moment of stress. His wit and good humour came to the rescue and relieved both him and us. A clueless briefing advocate would be praised (behind his back) for his detachment from the result of the case, for treating success and failure just the same. The most unhelpful facts of a case – an ill-advised letter, a much-inflated claim – were accepted with equanimity, with the resigned statement that “we must fight with the tools we have”.

Of course, there were things which irked Ashokbhai – a file missing when he wanted it, a book in the wrong place, a note printed on anything but his favoured yellow memo paper, an absent stenographer – but these were largely momentary irritations, and easily remedied. He encouraged his juniors to build their own practices and revelled in their success. Many of those who worked with Ashokbhai remain close to him and Suvernaben even today – they enveloped us in their affection and warmth, made us part of their family, and became part of ours.

Ashokbhai taught us simply by the example he set. For that, we shall always remember him with profound gratitude and respect. I feel utterly blessed to count myself amongst his pupils.

Prateek Jalan is a judge of the Delhi high court.

What They Don’t Teach Us in Law School

To take a successful plunge into the sea of black coats, ‘unlearning’ a lot of what is taught at law school becomes essential. But why should it be so?

There was a big seminar on legal education and the future of national law schools the other day with constitutional heavyweights in attendance. Five-year law, it was said, has captured the national imagination.

In 1991, when I was leaving the safe ecosystem of Kolkata (then Calcutta) for law school in Karnataka, I had to grapple with the silent, judging looks of my relatives who emitted sympathetic groans and patted me, all the while thinking “what a loser, couldn’t even get into a law course in Calcutta and has to go all the way to Bangalore”. Crossing the Vindhyas for engineering, medical, hell even hotel management, was understandable. But law? Who would do that when anyone and every one could just walk into South City Hazra Law College (evening course)?

I did quite well in law school. Sadly, not so well in the real politics of law. My classmates, who I silently wrote off as they stayed back after terms to give “repeat” exams – incidentally many prided themselves in the title “repeat king” – are today rockstars heading global law firms and law departments of multinational firms.

This got me thinking. Why has the “national law school” education failed me?

Here are my two bits on what they fail to teach us in law school and what we are forced to learn on the job.

101 innovative adjournment ideas

Once a lawyer was caught out for asking for an adjournment as his grandmother had died. The judge, gleeful at having finally cornered the “adjournment specialist”, said, “Vakil sahab, that’s what you had said six months ago.” This lawyer, who is famous in Delhi’s labour courts for taking adjournments, without batting an eyelid, said, “Sir, can I help if if my grandfather had married twice!”

This talent can come of use collaterally as well. One lawyer reportedly staved off tax officials by pleading that rats or termites had eaten his records. My lack of talent in this department was exposed early in my legal career when I learnt a basic legal lesson the hard way. My senior had gone off to a tribunal and I was told to take an adjournment before the Supreme Court. I was nervous as Justice S.P. Bharucha, who headed the bench was not one who suffered fools easily. When he asked me where my senior was, I truthfully blurted out that she was before a tribunal. Opposite me was the then attorney general for India, Soli Sorabjee. When the judge started fuming at me, for the life of me, I could not figure out what I had done wrong. Sweet Soli came to my rescue: “Forgive my young friend. He will soon learn the ways of the bar”.

I later learnt the golden rule. You want a date in the lower court, you must always give the higher court as the excuse. The high court will not countenance someone seeking accommodation for being busy in the trial court. I had asked innocently, what about the Supreme Court? Surely I cannot say my senior has gone to Hague to the International Court of Justice!

The answer: Simply say your senior is busy in another court room.

The shortest route is not always the straightest one. Credit: Pixabay

101 ways to self promote and network

This requires a special skill set. We have private fan clubs for some of the lead achievers in this category. I went through the portals of law school when we still had a Soviet Union with Mikhail Gorbachev. Nelson Mandela had been freed from Robben Island in my third year. So forget smart phones and social media, we had no computers. Today, technology assists the promotion driven lawyer. Even before the order is signed, the victorious lawyer whose Facebook page would already have forewarned us that he had “checked into the premium lounge of the airport” and then “checked into the Bombay high court “ would have posted a triumphant selfie in black robes with a winner of a tagline, “We did it” or “Victory”.

We have “celebrity” lawyers whose Twitter following may give serious competition to the dockets pending in courts and who, if Vogue or Cosmopolitan are to be believed, have been integral to all major cases that have shaped the architecture of the Indian Republic. The reality could not be more different. We have lawyers receiving best litigator awards when a fact check from the court website would show an annual filing statistics in single digits. Sadly, from “perform or perish”, we have moved to “promote or perish”.

101 creative awards to self engineer

We can add purchasing educational qualifications and honorifics to this list too – essentially people who can, without batting an eyelid, accept awards and sit at a high table and pass off as “achievers”. Which they indeed are as they have “succeeded” as per parameters we have now come to covet: ‘Best Boutique Law Firm of the Decade’. ‘Best General Counsel of the Millennium’, etc etc. These awards are a big business now.

“I think therefore I am”, has now been replaced with “You come up on search results and therefore you must be something”. Social media presence means a lot and it’s a big business. And when you have none, and worse, your namesake is a famous Left-leaning activist who was abducted and killed in Majuli in Assam, you can imagine one’s plight.

In our time in the law school, pre the Kuch Kuch Hota Hai days of multiplex consumerism, we used to pride in boastfully calling ourselves “social engineers”. This breed of “social engineer” pass outs is facing virtual extinction. Alumni social platforms have now sadly started resembling pulpits of self-promotion and celebration of “awards” and “achievements” rather than of social upliftment. In these prisons of WhatsApp groups and Facebook Pages, many graduates of the law schools who are silently working away to make a difference in people’s lives in mohallas and distant villages, in small chambers, must be finding themselves totally lost as congratulations and compliments fly thick and fast for awards and appointments. I am sure for people like them, all this makes no difference at all. That, however, cannot be a justification.

Managing courts and clients

Now, I am being serious. No doubt if you are endowed with skills in the other kind of “managing” you would be a rockstar of a lawyer in these sad times. However, our law schools even fail to teach the “legit” kind of management of courts and clients. Of course, this comes through practice and actual interaction. While most national law schools have placements programmes wherein law students are actually embedded in courts and lawyers’ chambers and corporate offices, the importance of this assignment in shaping the future lawyer is never truly appreciated.

In today’s India, the important role that is played by the legal profession cannot be overemphasised. When I graduated, I was told that if I wanted to take a successful plunge into the sea of black coats, I would have to “unlearn” all that I have learnt at law school. Why should it be so?

Sanjoy Ghose is a labour lawyer in Delhi.

Allow us to Jog Your Memory, Mr Jaitley

Today’s ‘institution disrupters’ were once crusaders in your eyes.

Finance minister Arun Jaitley has described public interest lawyers and some retired judges as “institution disrupters” and conspirators threatening the judiciary. But what about the Machiavellian disrupters sitting inside the Narendra Modi government whom former Chief Justice of India T.S. Thakur had accused of attempting a “lock out” of the judiciary by subjecting it to a relentless “onslaught”?

On behalf of a much more united Supreme Court than today, CJI Thakur had observed in October 2016,”You cannot have an institution lock-out. Most high courts are working at less than 60% strength. Why is government sitting over recommendations for appointments pending for over eight months,”. Coincidentally, he also had Justice D.Y. Chandrachud sitting by his side when he made these scathing remarks against the government.

One is recalling these observations only because Jaitley’s tweets seek to blame only one side – the opposition – for the disruption, quite ignoring the role of the ruling regime itself.

If intimidatory tactics of “Institution Disruptors” and impeachment motion are threats to judicial independence, the single greatest threat is the divided court itself

— Arun Jaitley (@arunjaitley) April 20, 2018

In another tweet, Jaitley castigates “public interest crusaders” graduating to become “institution disrupters”. Of course, what Jaitley omits to say is that these very crusaders – who he describes as consisting of lawyers and retired judges – were being greatly felicitated by the BJP when they were crusading against the corruption of the UPA-II regime with a flurry of public interest litigations.

Who can forget the manner in which Narendra Modi rode to power on the backs of such “institution disrupters”, promising them all an independent Lok Pal!

Over the last few years one has witnessed the evolution of some public interest crusaders graduating into “Institution Disruptors”. They pick-up even false causes and pursue the falsehood with a sense of deep commitment, indulge in intimidating advocacy & justice dispensation.

— Arun Jaitley (@arunjaitley) April 20, 2018

Today, the same “institution disrupters” are inconvenient to the ruling regime because they are consistently crusading against corruption and unethical behaviour, whether in the executive or the higher judiciary.

And the reason why the apex judiciary is so divided is because the Supreme Court does not seem to be responding in the way it had responded when the campaign for cleaner and more transparent institutions had peaked during the UPA-II regime. Here is where the BJP’s double standards come to the fore.

The Bharatiya Janata Party may want us to believe that ‘disruption of institutions’ is a politically motivated phenomenon aimed at dislodging the present regime. The fact is that such disruption has been gathering steam over a much longer period – at least a decade and a half – and is the result of a democratic churn which has made people demand greater transparency in delivery of governance and justice.

This clearly has not been forthcoming under the Modi regime which so far has merely maintained status quo and is happy blaming all else, mainly the opposition, for everything that is going wrong. The move to impeach the Chief Justice of India had been gravely objected to by eminent jurists like Fali Nariman and Soli Sorabjee but one recalls Nariman himself lamenting the rapid erosion of democratic institutions under the Modi regime. So the impeachment move is certainly not the primary cause of institutional erosion but seems more like a culmination of a cancer-ridden system which politicians have used to exploit and consolidate their power rather than seek to remedy the malaise.

One could even argue that it was the cynical machinations of the ruling regime that widened the divide between the CJI and the four senior-most judges who held a press conference early this year. Credit: PTI

The four-most senior judges addressed the media earlier this year as a bid to set the house in order. Credit: PTI

Jaitley is right when he says the single greatest threat is the “divided court itself”. So, why is the Supreme Court so divided as never before. The four senior most judges did not have any political agenda when they came out in public to say ” democracy was in peril”. The ruling regime cannot pretend this had nothing to do with their own conduct however much they try to close their eyes to it. One would even argue that it was the cynical machinations of the ruling regime which widened the divide between the CJI and the four senior-most judges. Such machinations did not start with Deepak Misra as CJI. It was happening even before, as observations by CJI Thakur reveal.

In fact, it must be recalled that the moment the BJP-led government came to power, it started disrupting, to use Jaitley’s term, the apex judiciary. The Centre’s very first act was to discredit, through planted stories in the media attributed to the Intelligence Bureau, the nomination of senior advocate Gopal Subramaniam as SC judge. It may be recalled that Subramaniam was specially invited by CJI R.S.Lodha to become a judge because of his stellar legal work which successive CJIs had appreciated on record. But the Centre opposed his nomination because he was appointed by the Supreme Court to oversee investigation and prosecution by the CBI in the killing of Sohrabuddin Sheikh, Tulsiram Prajapati and Kausar Bi in an alleged fake encounter case. That was the first confrontation in 2014 between the Centre and Supreme Court.

The process of appointing judges has only got messier since then, as the Centre and SC quarrel over the details of the memorandum of procedures to be adopted. Indeed, there is a profoundly toxic political backdrop against which such games have been played, culminating in the public press conference by the four senior-most judges.

What is interesting is that in many of these episodes of confrontation between the Centre and judiciary, culminating in the Judge Loya order, BJP President Amit Shah seems to figure as an important dramatis personae. Remember the Sohrabuddin-Tulsi Prajapati case was conducted under SC’s monitoring by the CBI. And it is unprecedented in CBI’s history that it should virtually disown it’s own chargesheet in a case prepared under SC’s monitoring. Isn’t this also ‘institution disruption’, one might ask.

Arun Jaitley Has A Tough Day At Court in Kejriwal Defamation Case

Cross-examining Jaitley was former law minister Ram Jethmalani who asked at least 50 direct questions to Jaitley.

Finance minister Arun Jaitley was cross-examined in his case against Arvind Kejriwal today. Credit: Reuters/Files

The face-off between union finance minister Arun Jaitley and former law minister Ram Jethmalani had all the trappings of a great legal encounter and it lived up to its expectations. Jaitley was being cross-examined at the Delhi high court in the defamation case filed by him against Delhi chief minister Arvind Kejriwal.

By the time the cross-examination began on March 6, it was packed with lawyers, journalists and court staff. Jethmalani, who had earlier appeared on behalf of the accused in the Supreme Court in November, had clearly stated his reasons for taking up the case against Jaitley in an interview. He felt that the finance minister was responsible for his ouster as law minister from the Atal Bihari Vajpayee government. A few years ago though he had also blamed his dismissal on then attorney general Soli Sorabjee.

At court, the drama was high voltage with a battery of lawyers which turned out to support both sides.

Jethmalani began his questioning by posing nearly 50 direct questions to Jaitley. The examination lasted several hours, spread over two sessions. Jethmalani asked Jaitley why he believed the damage to his reputation was “irreparable and unquantifiable” and wondered aloud if it had more to to do with his “personal feelings of greatness”. “There is no objective rational reason, besides the value that you put on yourself?” the senior advocate further quipped.

Jaitley had filed the defamation case against Kejriwal and five other AAP leaders – namely Kumar Vishwas, Ashutosh, Sanjay Singh, Raghav Chadha and Deepak Bajpai – aftey they had accused him of financial mismanagement during his 13-year-long stint as the president of the Delhi and District Cricket Association (DDCA). Apart from filing a criminal complaint, Jaitley had also filed a civil defamation case in which he had sought Rs 10 crore in damages.

In his defence, Jaitley replied, “The value I placed towards loss of my reputation was only a small part of the enormous damage done.”

Jethmalani countered saying Jaitley had not suffered any monetary damage. The BJP replied saying the loss of his reputation could be partly quantified in terms of money. “Loss of reputation causes mental distress to the person defamed, which it did in my case,” he said, adding, “considering my stature, background and reputation, the loss caused to me and my reputation was so enormous that it was considered unquantifiable.”

This drew a strong response from Jethmalani who said this meant that it was Jaitley’s “personal feeling” about his greatness that made him file the case and so the damage could not be “estimated in terms of fiscal measure”. Jaitley replied his views were based around those of his “friends, well-wishers and others, both privately and in the media, who had expressed an opinion on the subject.”

“I don’t object to political statements but this was the first time a statement was made questioning my integrity,” he told the court.

Jethmalani then pointed out that the raid on Kejriwal’s former principal secretary Rajendra Kumar was conducted by the CBI as it expected to recover some documents pertaining to the DDCA. The Aam Aadmi Party has maintained all along that the probe against the DDCA could have been explosive and that is why the CBI was sent to scuttle it and take away the files.

Jaitley for his part submitted that the defamatory statements made against him by Kejriwal were primarily meant to defect focus from the raid which was conducted in his aide’s office in December 2015. “It appears that defendants (Kejriwal and others) made defamatory statements against me immediately after this raid. Their effort was to deflect the attention from this raid and somehow link me to the controversy with which I have no connection,” he said.

Jethmalani also quizzed Jaitley on whether he was aware that the Delhi government was appointing a commission to inquire into the controversy. To this, Jaitley answered that he had left the DDCA in 2013 and thereafter had lost touch with the functioning of the association. “I was not aware of any such inquiry.”

Then when Jethmalani asked him whether he had been shown the Delhi government’s probe report into the functioning of DDCA, Jaitley replied in the affirmative. But when asked if the report had been shown to him by Chetan Sanghi, the panel head, Jaitley said he did not remember that.

Incidentally, Sanghi, who was principal secretary in the vigilance department of the Delhi government, had told the Centre that he was under “pressure” from various “stakeholders” for naming some individuals, including a “certain VIP”, in his report on the affairs of DDCA.

During the course of the hearing, there were also some moments which went beyond mere law point.

On one such occasion, Jethmalani asked Jaitley if he knew the difference between “reputation” and “goodwill” and when Jaitley replied with an explanation, the latter disagreed and pulled out a copy of the Webster’s dictionary and submitted it, much to everyone’s amusement.

The hearing will resume at 11.30 am on March 7.

Experts Decry BJP for Getting Constitution Wrong on ‘Bharat Mata’ Issue

The ruling party is trying to polarise society over a non-issue, they say.

Prime Minister Narendra Modi, BJP President Amit Shah, senior BJP leader L K Advani and Finance Minister Arun Jaitley at the party’s national executive meet, in New Delhi on Saturday. Credit: PTI Photo by Kamal Kishore

New Delhi: Prime Minister Narendra Modi’s assertion at the national executive meet of the Bharatiya Janata Party that all leaders should only focus on and speak about issues of “vikas, vikas and vikas” (development, development and development) appears to have been nullified by the political resolution of the meeting itself.

In keeping with the BJP’s decision to play the ‘nationalism’ card by hyping the importance of the slogan ‘Bharat mata ki jai’ (‘Victory to Mother India’), the resolution said: “Our constitution describes India as Bharat also, refusal to chant victory to Bharat is tantamount to disrespect to our constitution itself.” But this assertion of the party, according to constitutional experts, is itself against the spirit of the constitution.

In an article last week, ‘Nationalism Can’t be Manufactured by Reciting Verses’, Soli Sorabjee – who was attorney general when the BJP-led NDA was last in power – noted how the Supreme Court in Bijoe Emmanuel v. State of Kerala had upheld the right of students belonging to the sect of Jehovah’s Witnesses to not sing the national anthem whilst standing respectfully when it was sung. “That judgment was a clear endorsement of tolerance,” he wrote.

Justice O. Chinnappa Reddy. Credit: Supreme Court

Authoring the landmark 1986 judgment, Justice O. Chinnappa Reddy had noted: “Our tradition teachers tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.”

All the constitutional experts The Wire spoke too suggested the ruling party missed the point.

Senior advocate Aryama Sundaram, said the BJP resolution took an erroneous position on the Constitution. “I think it is completely wrong.”

Making a reference to the same Supreme Court case, he said the Kerala students had been rusticated because they refused to sing the national anthem on they ground that they belonged to a religious group known as the Jehovah’s Witnesses and this group only sung in praise of the Lord and would not sing any other song. “So the students were willing to stand up but did not want to sing the national anthem. As such they were dismissed from the school. The case came up in the Supreme Court and it reversed the expulsion.”

In doing so, he said, the Supreme Court laid down that “tolerance runs like a thread through the constitution of India and it said that so long that they did not disrespect the flag or the country, it did not make it in any way a disrespect to the flag or the nation.”

Aryama Sundaram.
Credit: Twitter

So, in the present context, he said, “if a person does not otherwise disrespect the country but says I will not chant something – not chanting it does not make it a case of disrespect at all. It is open to him to chant what he wants or not chant something, but it is not open for him to disrespect the country. So not chanting something does not amount to an act of disrespect. I cannot agree that not chanting Bharat mata will amount to disrespecting the country under the constitution.”

On the controversy around the chanting of ‘Bharat mata ki jai’, Sundaram said, “I see all this as creating a polarisation which is completely unnecessary. I also believe that if someone disrespects the nation or the flag then action should be taken because you can’t disrespect either. But I cannot see what is being done right now as curbing any such disrespect. According to me such actions will only end up in hardening the polarisation which could take place.”

The controversy began after RSS chief Mohan Bhagwat said the younger generation needed to be taught to patriotism by saying the slogan ‘Bharat mata ki jai’ slogan with pride.

To this, three-time MP and All India Majlis-e-Ittehad-ul Muslimeen (AIMIM) leader Asaduddin Owaisi said no one could make him say the slogan. The barrister-turned-politician insisted that nowhere in the constitution was it written that a citizen can be made to say it.

The reverberations of this controversy were felt inside the Maharashtra assembly last week where AIMIM MLA Waris Pathan, also an advocate, was suspended for the entire budget session after he declared that he would say “Jai Hind” (‘Long live India’) but not ‘Bharat mata ki jai’.

Kamini Jaiswal.
Credit: Livelaw.in

According to senior advocate Kamini Jaiswal, “the constitution nowhere requires people to say ‘Bharat mata ki jai, nowhere does it talk about it. [The BJP resolution] is a very wrong interpretation. The constitution just says ‘India. which is Bharat’. It doesn’t talk of Bharat mata. So, it is not a fundamental duty of every citizen of the nation to say such a slogan.”

“We all love and respect our nation,” she said, “but we don’t have to carry it on our sleeve.”

Asked how she saw the BJP’s resolution and recent incidents surrounding the controversy, she said: “They have now unnecessarily created a rift among the people. They are going to create what nobody wants. They will start dividing people over issues. These are issues which should not be raked up at all.”

She also insisted that the decision of the Maharashtra assembly to suspend Pathan was “an absolutely wrong decision” and suggested that “someone should challenge it.”

Senior Mumbai-based advocate Abdul Majeed Memon believes both the extreme views – those of the BJP and RSS on the one hand and of the AIMIM on the other – are wrong.

“I think both RSS and BJP are only playing politics over this issue. For me, this chanting of ‘Bharat mata ki jai’ is a non issue. What is the harm in chanting it? I believe that Waris Pathan’s suspension from the assembly was an overreaction but I had told Pathan also in a television debate that he should have ideally said that he believes there is nothing wrong in chanting ‘Bharat mata ki jai’ but he would not do it at the instance of the BJP or RSS. The matter would have ended there.”

Majeed Memon.
Credit: Twitter

Political expediency, however, demands tough posturing and Memon said parties are taking extreme positions because they want to play politics over emotive issues. “I would like to remind everyone that AIMIM does not represent the entire Muslim community and so we should not let their actions vitiate the atmosphere.”

“I also believe that the issue is unnecessarily being raked up. Now I read that a cleric in Hyderabad has objected to ‘Bharat mata ki jai’. They did not have a problem with it for the past 60 years. Even now they are okay with Bharat or jai, but have issues with saying mata or mother. What is wrong with the concept of motherland now? Bharat mata is the same as Mother India, but no one had a problem with the award-winning movie by that name which was directed by a Muslim, Mehboob Khan, and in which Nargis Dutt, another Muslim, played the lead protagonist.”

The real issue, he said, is ‘’Muslims have grown tired of proving their loyalty and nationalism time and again. They do not need certificates from the RSS or BJP for that.’’

Another senior Supreme Court advocate, Raju Ramachandran, said that when in the Jehovah’s Witnesses case not singing the national anthem was considered permissible and the decision to dismiss the students was struck down how can refusal to chant a slogan – on the demand of someone –amount to disrespecting the Constitution.

Senior advocate Dushyant Dave said it is unfortunate that the BJP mentioned the issue in this manner in its resolution. “I have great regard for Arun Jaitley as a lawyer. At least he should have tried to prevent this wrong interpretation of the constitution in the party resolution.”

Mridula Garg, Soli Sorabjee, Fali Nariman and Others on the Use and Abuse of Sedition Laws

Mridula Garg, Soli Sorabjee, Fali Nariman and others on the use and abuse of sedition laws.

Eminent personalities such as former Attorney General Soli Sorabjee, senior Supreme Court advocate Fali Nariman, constitutional expert PDT Achary, writer Mridula Garg and others share their views on the law of sedition.

Mridula Garg, Soli Sorabjee, Fali Nariman and others on the use and abuse of sedition laws.

Mridula Garg
Writer

Mridual Garg.

Any country carrying a law of sedition on its statute books has no right to claim that its citizens possess the right to freedom of expression. Even Britain, who once imposed it on India, has repealed it. A foreign government needs it to prevent the enslaved from forming a democratic republic. But the Indian government has different reasons – not because it’s a colonial legacy but because it suits the temperament of our governance. Successive governments in India in the last six decades have proved that freedom of expression is not something they genuinely believe in. They only barely tolerate it in the name of democracy and the Constitution. Any excuse is seized to curb it.

The imposition of the Emergency banning all freedom of expression was an extreme step, but at least it was an overt one. The law of sedition is more insidious, hence more dangerous. It provides the government with covert means to create Emergency-like situations, that too with no warning. It is a measure of extreme repression.

The JNU Students’ Union President Kanhaiya Kumar is not the first one to be charged with sedition for allegedly raising anti-government slogans or inciting others to do so. Even though the law of sedition is expressly against violent action and not mere sloganeering, no government has respected that. Moreover, each government has acted time and again under the presumption that the government and the nation are synonymous, which they most certainly are not. The nation also consists of people outside of the government, whom the government merely represents for a prescribed period of time.

When the government is disposed towards curtailing the free flow of expression, it is ready to use any excuse to do so. The law of sedition makes it easy to club anti-government utterances with anti-national intentions. Intention is all that can be seen in expressions of dissent, however violently phrased. Verbal violence can be construed as criminal only if it is proven to lead to acts of actual physical violence, not because someone in the government thinks it might do so at some future date. A government that is ready to wreak havoc upon autonomous institutions of higher learning through police action can itself be held guilty of inciting violence. In as much as violation of the autonomy of such institutions is violation of democracy, can it not be fairly said that it is anti-national?

The Indian constitution guarantees us a democracy. If to violate this democracy and hence the constitution is not anti-national, then we need to rethink the meaning of the word ‘nation’.

Fali Nariman
Constitutional jurist and senior Supreme Court Advocate, writing in The Indian Express

Fali Nariman. Credit: PTI

… “sedition” in India is not unconstitutional, it remains an offence only if the words, spoken or written, are accompanied by disorder and violence and/ or incitement to disorder and violence. Mere hooliganism, disorder and other forms of violence, though punishable under other provisions of the penal code and under other laws, are not punishable under Section 124A of the penal code. Likewise, mere expressions of hate, and even contempt for one’s government, are not sedition. When a person is dubbed “anti-Indian”, it is distasteful to India’s citizenry, but then to be “anti-Indian” is not a criminal offence, and it is definitely not “sedition”. (It only means that you are a freak, and that it is high time to have your head examined!)

Citizens in India are free to criticise their governments at the Centre or in the states — which they do quite frequently, and boldly and fearlessly as well; as they must, because that is what a participatory democracy is all about. It behoves the men and women of the law who advise government to impress upon their client that freedom of speech and expression is a fundamental right guaranteed under Article 19(1)(a) of the Constitution — and to remind all governments (present and future) that “sedition” had been deliberately and designedly excluded by the framers of the Constitution from Article 19(2), the exception clause to free speech, only because, as the founding fathers had said, “Sedition is not made an offence in order to minister to the wounded vanity of governments!”

Soli Sorabjee
Former Attorney General of India, in an interview to The Indian Express

Soli Sorabjee. Credit: PTI

What did [Kanhaiya Kumar] do? Did he merely shout slogans like ‘Pakistan zindabad’? Arresting him for that? I mean that’s deplorable. That is not sedition. Sedition, the Supreme Court has said, are the acts which have a tendency and intention to disturb law and order or incite violence. After all, it is a section which gives you life imprisonment, has very serious consequences. So the Supreme Court has construed it in that fashion and said it very clearly that even if you use words that vigorously criticise the government or comment on the actions of the government, that is not sedition. That is our law, that is how Section 124A was interpreted and upheld as constitutional by a Constitution Bench.

Lawrence Liang
Advocate and co-founder of Bangalore Alternative Law Forum, writing for The Wire

Lawrence Liang. Credit: Wikimedia Commons

It is abundantly clear that freedom of speech and expression within the Indian legal tradition includes within its ambit any form of criticism, dissent and protest. It cannot be held hostage to narrow ideas of what constitutes “anti national” speech and we hope that the courts will step in not merely to defend free speech but also pass strictures on those who abuse the legal process to create a chilling effect on constitutional rights. This is particularly important in the context of the ongoing case against the students of Jawaharlal Nehru University because if free speech and thought is curtailed within universities, we run the risk of endangering one of the most crucial spaces of political freedom in the country.

NS Nappinai
Advocate, writing in The Times of India

NS Nappinai.

The genealogy of the colonial hand-me-down [of sedition], as a tool of suppression, is clearly contrary to even remote concepts of democracy and ought to have been discarded with the empire. Substitution of “Her Majesty” with “government established by law” did not take away the oppressive flavour but has in fact lent itself to further abuse. “Government” and “Nation” neither mean the same nor are they interchangeable. A nation is distinct from the persons administering it i.e., the government, vested with powers and duties to ensure cohesive functioning of the nation.

PDT Achary
Constitutional expert and former secretary general of the Lok Sabha, writing in The Hindu

PDT Achary. Credit: PTI

Sedition defined under Section 124A of the IPC is a colonial law meant to suppress the voice of Indian people. That is why the Indian law on sedition was different from the English law. Despite the strict construction adopted by the Supreme Court, the law enforcement agencies have always used it against artists, public men, intellectuals, et al for criticising the governments. In fact the Supreme Court itself did not apply these strict principles to the speech of Kedarnath and his conviction. The government and its agencies have, in reality, followed the law enunciated by the Privy Council and not by the Supreme Court in Kedarnath. The governments in free India continue to use it for the very purpose for which the colonial government used it.

Therefore, since the governments and its agencies have strictly gone by the text of Section 124A though the Supreme Court itself did not apply these principles to the speech of Kedarnath, the law declared in Kedarnath has lost its potency. The Supreme Court, being the protector of the fundamental rights of the citizens may step in now and declare Section 124A unconstitutional. India of the 21st century does not require a law used by the colonial government to suppress India’s voice.

Mrinal Satish
Associate Professor of Law at National Law University Delhi, writing for IBNLive

Mrinal Satish. Credit: Twitter

Our Sedition law is archaic and draconian. It was introduced by the British to keep leaders like Mahatma Gandhi in jail. Mahatma Gandhi wanted the Independent India to abolish the Sedition law. Unfortunately, we still have it. We are continuing it with even after so many years. Sedition law is a weapon in the hand of the state. It can be misused by the state in many ways. If somebody is charged with sedition, it will take a long time to get the bail and come out. The punishment is also very harsh.

Amnesty International

Amnesty International. Credit: Twiiter

Article 19(1) of the Constitution of India guarantees to all citizens the right to freedom of speech and expression. Article 19(2) makes public order a ground, among others, for restricting freedom of expression. However India’s Supreme Court has ruled that such restrictions must be authorized by law and must not be excessive or disproportionate. The Court has also ruled that restrictions relying on the ground of public order are valid only when there is a close connection between the speech and public disorder, and there is an imminent threat of lawlessness.

… However the law continues to be used to suppress critics. Successive governments in India have deployed it against journalists, activists and human rights defenders. In 2015, the law was used to arrest a Dalit folk singer in Tamil Nadu for songs criticizing the state government, and a community leader in Gujarat protesting for quotas in education and employment.