Young counsel today are more competent than we were, senior counsel Ravi Kadam

Advocate General of Maharashtra under three different Chief Ministers, senior counsel Ravi Kadam was one of the youngest to be appointed to the post. He also happens to be the longest serving Advocate General after HM Seervai.. In this interview with Bar & Bench’s Nitish Kashyap, Kadam spoke on a range of issues, from lawyering to pendency to the designation of seniors..Nitish Kashyap: So let’s start from the beginning. You studied law in GLC, Mumbai..Ravi Kadam: My father, Mansingrao Kadam, was a barrister and also the first Additional Government Pleader (writ cell) in the Bombay High Court from 1973-76. He passed away in 1977 when I was in junior B.Com in Sydenham college; my elder brother passed away the next year. .I had no intention to do law, my father was a lawyer, my brother was to become a lawyer. I just thought I will do CA, become a journalist maybe. When my brother passed away I thought I will pursue law. So I joined GLC..Nitish Kashyap: How was the experience?.Ravi Kadam: It was good, we had good teachers. then. Unlike (pauses).Nitish Kashyap: Now?.Ravi Kadam: I don’t know if they have good teachers now. We had really good teachers like Professor Pithawalla. Mr. Daruwala used to teach trademarks and, more importantly, drafting of pleadings. He actually used to give demonstrations and hand out mock plaints and written statements to students..Nitish Kashyap: They don’t do that anymore..Ravi Kadam: They don’t. I feel that the government’s reluctance to give autonomy to GLC is the reason that they are not able to attract really talented lecturers. .So anyway, I topped the university. This was in October 1981. .I joined the Bar in Feb ’82, in the chambers of Mr. JI Mehta. He had a virtual monopoly on what was called the miscellaneous court, and is now the interlocutory court. .So notices of motion, chamber summons, arbitration, company all were assigned to one judge. If there were 50 cases listed in a day, he would be appearing on about 35-40 everyday..When I joined JI Mehta in 1982, both the Tulzapurkar brothers were there, his nephew Girish Desai and Satish Gandhi, Ramesh Soni were there. Later Anand Desai, who now leads DSK Legal, joined the chambers. Around the same time SC Dharmadhikari J joined Virendra Tulzapurkar as a junior. We were all broadly the same age. .JI had a fantastic practice. He expected you to learn by just imbibing rather than hand holding and walking you through matters. I don’t think anybody could have been as lucky as I was to be JI’s junior at that time when the flow of work was the highest..His chambers had a fantastic concept that everybody used to prepare their briefs by notes written at the back of the brief. If that person was busy elsewhere he would pass on his brief to another chamber junior. Then based on the notes, you had to go and argue the matter. .And not only did you get to argue matters of other chamber seniors but at the end of the day, the senior whose brief it was (within the chambers), would cancel out his name and write your name and say, “You now charge the fees in this case and send it to the solicitor.”.Nitish Kashyap: Do you follow the same procedure with your juniors?.Ravi Kadam: No, that would not be acceptable to the solicitors now. Also, I unfortunately can’t because most matters where I appear I find there are already two juniors. If I am not there the matter gets adjourned; this is a bad thing because in a sense if juniors were forced to go on, it would be good because that’s one way that they would get blooded and get into the flow of work. .It’s not some rocket science, most of the young counsel today are much more competent than we were as juniors. They are confident but don’t get adequate opportunities. But this whole concept of stakes being too high is used as a deterrent which is a bad thing..“Most of the young counsel today are much more competent than we were as juniors. They are confident but don’t get adequate opportunities.”.Nitish Kashyap: A study by the law ministry has found that adjournments and stay orders delay trials by up to 6.5 years..Ravi Kadam: Adjournments are taken for a variety of reasons, counsel’s availability is one of the less frequent reasons. More often it is the fact that the sheer bulk of each case has grown so much that no case can be disposed off in 30-40 minutes even at the interlocutory stage. .So somewhere some curtailment of the brief, a briefer synopsis etc. something has to be done to get these out of the way. The pendency is huge, I mean most of the time we are just doing interlocutory work..Nitish Kashyap: So coming back, to Mr. Mehta’s chambers.Ravi Kadam: I was with Mr. Mehta till he passed away in 1993, and then I started on my own. One of the first major cases I got was to assist Mr. Chidambaram in the Madras High Court in an IP matter relating to Tiger Balm. .We lost before Justice Lakshmanan who was the single judge, so in appeal we went to a division bench. Mr. Chidambaram was not available so I got to argue the appeal. I argued against Mr. G Ramaswamy who had recently stepped down from the office of Attorney General and succeeded. So that catapulted me into the IP market..If I were to pin point a day on which things changed, I would say arguing in that case for more than a week against someone like G Ramaswamy. Those were very exciting days as a young lawyer. .Nitish Kashyap: You were 47 years old when you were appointed as AG. Were you initially reluctant?.Ravi Kadam: No, I have never been diffident about anything. I knew it was a big task, but I thought that I could do it. It was a great learning experience. It was also an opportunity to do something which you would never do otherwise. .Sometimes you can play a role in social justice in the real sense. Sometimes just your advice to government can help a large class of people. It gives you huge exposure and the opportunity to do good..Nitish Kashyap: The recent AG appointments haven’t lasted too long. Do you think an AG should be able to express his personal opinion without the government getting upset?.Ravi Kadam: Normally, yes. The government should not be so sensitive, but if it is something like the recent incident then that becomes a problem for having confidence in the officer. [The government] may feel that if he does not have faith in the concept of Maharashtra then that will definitely lead to people raising questions about him. .I don’t think that there is the slightest flaw in Mr. Aney and he was entitled to express himself. I feel maybe over time people will learn not to be so hyper sensitive. .They have to learn to deal with this. Same thing with Rajan [Raghuram]. We in India expect that people in highest places should not speak at all except the politicians. It is not so, a person can opine on something. .Nitish Kashyap: While in office Mr. Aney spoke of the state failing to improve the situation in Vidarbha and Marathwada. If you had a contrary view from that of the State, what would you do in court?.Ravi Kadam: I feel that in a matter where you have a strong view which is not consistent with the state, you should recuse yourself. You may be honest but eventually you have to be faithful to the brief. I think that it is important to always remember that as AG you are not elected, but appointed by the government of the day to canvass their case. .If it goes against your conscience then don’t canvass it and say that I will not appear, you can do that. But you can’t go and canvass contrary to the state’s stand because that is not your brief. Then, with great respect to Shreehari Aney who is a great friend of mine, you may be exceeding your brief and doing a disservice to the client. When I disagreed with the state I refused to appear in those matters. You can always use the strength of your position to persuade the government to accept your view. .Nitish Kashyap: Why did you resign? .Ravi Kadam: I had been AG for seven years. I started feeling claustrophobic; you know in government when you are working as Advocate General there are a lot of constraints on your practice. I thought it was time for me to move on and get back to my carefree ways as a freewheeling counsel (chuckles)..Nitish Kashyap: Restrictions in terms of which matters you could appear in?.Ravi Kadam: Advocates General are fortunate; you don’t have to abandon your private practice. But in reality what happens is that the government wants most of your time, and you don’t get as much time for private work as you would like..Suppose there is a very attractive private brief or a corporate litigation and you take it up and halfway through it the government calls on you to do something, as AG I felt it was my duty to return that brief and do the government’s work. So at some point you lose your constituency, your private constituency. And if you are doing it for a few years it is alright but if you are doing it for a very long time then you need that kind of a mindset which I did not have. It was probably my failing. .Nitish Kashyap: Your thoughts on the Bombay High Court Bar and Bench? .Ravi Kadam: I think the work ethic we have at the Bombay Bench of the Bombay High Court is, if not the best, then at least one of the best. .One regret is that not enough good lawyers go on the bench. .Maybe because it’s a commercial city, may be because people here are more independent minded and not as power, prestige or status minded as in other places. .People here prefer to remain as private citizens leading a regular life rather than taking up judgeship. How to change that is a challenge..Nitish Kashyap: I am sure you have been asked?.Ravi Kadam: I was asked long back, before I became AG. I didn’t think I was suited for it temperamentally, I thought I would be very impatient as a judge. I would not have that capacity to be dispassionate and would get identified with a side very early (chuckles) I really respect judges who are patient; it’s an important and under-appreciated virtue. .A lot depends on the role of the Chief Justice, if you have a Chief Justice who is highly respected by the bar then he is able to persuade leading lawyers with large practices to come over with the sheer weight of his personality..Nitish Kashyap: What about the current Chief Justice?.Ravi Kadam: I think it’s a mistake to send somebody as a Chief Justice for what is virtually a stop-gap arrangement. This cannot be done to any High Court, much less to the Bombay High Court. .When you appoint somebody as a Chief Justice he should have a tenure of at least two years, that must be done. So then if it is necessary that somebody is appointed “superseding” seniors, so be it. .If he is competent, a good judge and a good administrator then you should make him [Chief Justice].One thing I agree with in this MOP (Memorandum of procedure) issue is that merit cum seniority must be given primacy over seniority cum merit. Because eventually if they are meritorious, they should go up higher and faster. .Nitish Kashyap: The Salman Khan trial – a lot hinged on the fact that procedure was not followed..Ravi Kadam: Now I can comment as I am a lay citizen but it happened during my tenure as AG also. From the judgement of Justice Joshi it appears that the preparation and the police work was very shabby, which is often the case and it is also the reason for a very low conviction rate. .Now one thing which the government keeps talking about is low conviction rate but it’s not some cricket statistic. If people are not guilty in accordance with law then they have to be acquitted. If somebody is guilty and is not convicted due to lacunae in investigation or prosecution – that you can remedy but mere statistics would not be a fair way to judge public prosecutors..If some state has 60-70% conviction rate we don’t know what is happening there and what are the reasons. Whether the accused are unable to defend themselves properly because they are too poor or they are not well advised, we do not know. So this obsession with saying that the prosecutors in Maharashtra are not good because the conviction rate is low is not correct..Nitish Kashyap: With regard to the investigation, where is the fix?.Ravi Kadam: I will tell you it is a very strange thing, there is a police manual, just like for land acquisition. Now if you see the police manual for investigating a case, the entire procedure is laid down.. .All that they need to do is keep updating that periodically with changes in technology etc and having refresher courses for the police officers. That will make a big difference so that the investigations are proper, collection of evidence, storing and maintaining of evidence is full proof and it will result in a higher conviction rate..I find now, most of the investigating officers are not even aware that there is something like a police manual and it has to be followed. Probably it has not even been updated for several years!.Nitish Kashyap: State governments tend to go out of their way to protect their own. In the Lakhan Bhaiyya fake encounter case, the state suspended the life sentence given to 11 convicted police officers through a GR. .Ravi Kadam: This is a difficult one to answer. Do you catch and convict the lowest level officer who pulls the trigger? I guess you must convict him because ultimately he is the guy who pulled the trigger. But all this is done with the clearance of the senior officers, even possibly higher than that and no effort is made in any of these cases except to prosecute Inspector level officers and below. .And that also is a large political constituency which needs to be catered to, so the state does not fall into a dilemma. We, as a society have not yet evolved. I mean the realisation that murder by the state is more reprehensible than the murder by an individual has not hit the people..The realisation that murder by the state is more reprehensible than the murder by an individual has not hit the people..That is the problem. If you look at the lay people they will say police officers are being prosecuted for killing a criminal, what kind of justice is this! So that is the level at which people think. But an offence by the state or a functionary of the state against an individual is a far more heinous offence, because it is something that goes to the root. .Nitish Kashyap: When you joined as AG and after you left, when were you more cynical of the political class?.Ravi Kadam: When you are there you think through your office you can make a difference, that you are empowered to do something so you are less cynical. But with the wisdom of hindsight and the advantage of time having lapsed since when I was last there one feels cynical, that things will never change. .Isolated incidents make you cynical about the entire body polity, sometimes I feel that India as a society needs to mature to a certain level. Our institutions including the media must mature so that we can see things for what they are and not what they appear to be. .At this time I think only the judiciary has a great deal of maturity. Notwithstanding what people say about judicial activism, if you see the reality of this country then the amount of activism is actually just a fraction of what would have been done by any other judiciary. They should be doing far more..Nitish Kashyap: The CJI’s emotional appeal at the Judge’s conference, what do you think of that? .Ravi Kadam: It was a sad moment, not only for him but the judiciary. I have mixed emotions on this, sometimes I think that the CJI showing this kind of weakness was not warranted, he had to be stronger than that and if he is stronger than that I don’t know why on that day this happened. But it did show a disconnect between the government and the judiciary on so fundamental an issue like enhancing judge strength..I am not an apologist for the government but somehow they don’t seem to have realised how a faster, more efficient and effective judiciary is a solution to many different problems and not just a solution to the pendency of cases alone. .It’s a solution to many of the ills that ail our society. That realisation doesn’t seem to have to have come home to any government at the centre. .They seem to look at it as an economic factor; this is our budget for education, law and judiciary, social development etc. They say we have enhanced the budget from last year, but that is not the point. Sometimes you may have to spend disproportionately on one thing because it might result in curing a lot of other problems which we never realized could be cured by just addressing this one issue..Nitish Kashyap: What do you think about the institution of senior counsels? .Ravi Kadam: It needs to be re-looked at I feel. People should have achieved something as lawyers not just in number of cases they argue but some qualitative contribution by way of their arguments..The one thing that I do feel that because it is with the High Court alone, we should have a system of designating lawyers who appear in other courts like the labour courts, criminal courts etc and who by the very nature of their practice, may not appear in the High Court every day..We should have a system of designating lawyers who appear in other courts like the labour courts, criminal courts etc.Some junior on the original side, who may not be half as good, appears in the High Court and gets noticed because he is reasonably competent and by sheer time scale gets designated. .There are great lawyers in the districts like Solapur, Satara, Nagpur, and Aurangabad. I have seen outstanding trial lawyers and they go through an entire life remaining juniors to somebody who is twenty years junior in age and forty years junior in ability and experience! .Nitish Kashyap: Do you think you could draw a parallel between your generation and the current one? .Ravi Kadam: In those days, success came very slowly but certainly and once it came it would stay with you. Now, monetary success comes much faster which is I guess good because everybody is not from an affluent family. .But the recognition that you are part of a larger system and you have a duty to the court first is rather slow in coming, that is the only shortcoming I would say..Competence and work ethic wise I think the present generation is at least as good if not better than the previous generations. I hope many of them will go for judgeship when the time comes. .We weren’t so good at that age I feel though we got many opportunities. My sons are lawyers and do appear in a lot of cases but they are all effectively argued by senior counsel. I guess that’s the reason why there is such a rush to become a senior counsel (laughs).