There is a manoeuvrability about the appointment process, Sr Advocate Avtar Singh Rawat

Aditya AK September 29 2017
Avtar Singh Rawat

Avtar Singh Rawat is a Senior Advocate of the Uttarakhand High Court. He has previously served as Additional Advocate General for Uttarakhand in the Supreme Court. Most recently, he had represented the Speaker in the Uttarakhand President’s Rule case in the High Court.

Not one to mince his words, in this interview, the veteran lawyer offers a perspective on lawyers in smaller cities, highlights the flaws in the system of judicial appointments, and talks about government litigation.

Why did you choose to do law?

I come from a very remote area, and I did not know anything about the legal profession. It was only after I did my post-graduation and came to Delhi that I even heard of law as a subject. At that time, I was part of many social movements with the Students’ Federation of India. After I reached a certain age, there were hardly any similar movements, and I came to the conclusion that law was the last resort for scoundrels like me!

In hindsight, I can say that destiny takes you to a particular place. If I hadn’t done law, I would have wasted my time in politics. But when I decided to do law, I had no idea about the niceties of the legal profession.

When I moved to Delhi, I enrolled at the Department of Modern European Languages at Delhi University. Delhi was very new to me; I hardly knew anyone there. When you go from a small place to a big place, you get lost. Eventually, I became familiar about the goings-on at DU and I did law from the Campus Law Centre.

How long did you practice in Delhi?

I practiced in Delhi for almost 27 years, having appeared in the Delhi High Court and the Supreme Court. I was an Additional Advocate General in the Supreme Court for five years, and a Standing Counsel for the government of India for ten years. I decided to come back here only a few years ago.

How would you compare the Uttarakhand Bar with Delhi lawyers?

“Compared to bigger cities, people here are not very hard working.”

This bar here is very new. The harsh truth is that it is a very small state; people did not even imagine there would be a High Court here. The lives of people in big cities are quite different from things here, in terms of education and other things. So, initially this Bar was not joined by very bright people. Compared to bigger cities, people here are not very hard working; there is a lack of total professionalism.

I may be wrong, but subconsciously I tend to compare with how things work in Delhi, as I was there for a long time. Things are slowly developing now.

And you were designated Senior Advocate by the High Court?

I was designated by the Uttarakhand High Court. Back then, the Supreme Court used to designate only one or two people. But in the last ten years, they have designated lawyers in bulk. I believe the quality of those being designated has fallen down.

How was your experience as Additional Advocate General in the Supreme Court?

I had done a variety of big cases. The Bench used to appreciate my hard work, and that boosted my morale. I have done big cases here as well, but the kind of arguments we see in the Supreme Court is lacking here.

The government is the biggest litigant in the country. Why do you think that is the case?

“70% of litigation happens because bureaucrats don’t apply their mind. “

Politics is played not just in our state, but in our entire country. When I was AAG in the Supreme Court, I used to advise the officers against pursuing litigation. But the bureaucracy doesn’t consider what lawyers say.  I have told them that when a High Court has ruled against them, they should not go in appeal. 70% of litigation happens because bureaucrats don’t apply their mind. So, even though they have the power to curtail it, they do nothing.

I remember arguing a Customs/Excise case for the Union of India, where revenue of crores of rupees was at stake. After a CBI inquiry, some government lawyers were caught in a racket involving a lot of money. They had a deal with the person who did not pay the tax to delay the matter for two years, and then somehow get it dismissed.

You had appeared for the Speaker in the Uttarakhand President’s Rule case in the High Court. What is your take on the whole incident?

For the first time in many years, we have a central government that has full majority. It had the power to do something for the betterment, rather than indulging in matters related to a small state. Of course, the state government had some shortcomings, but the Centre’s attempt to find fault with it was wrong. They sought to dissolve the government for some frivolous reasons that did not have any nexus with Article 356.

That is what the Court found, though it does not generally interfere in matters like these. It was a big defeat for them.

Some people say Chief Justice Joseph paid the price for that decision.

KM Joseph

“Chief Justice Joseph is what you call a 100% pure judge.”

Chief Justice Joseph is what you call a 100% pure judge, in this matter and otherwise also. He has an impeccable personality, and is brilliant and hard-working. After committing so many faults, he had given them (the Centre) a chance to take back the proclamation, but they refused. What other choice did they give him?

It is most unfortunate that it has affected his elevation; this kind of thing is part of our polity now. People holding such high positions must not consider even remotely that a person who is doing his duty as per law should be punished. Even if you are not satisfied with the decision, you can approach the Supreme Court, which they did, and lost.

They have shown their whimsical thought process by virtually saying, ‘anybody who protects this government (the opposition) is my enemy’. This is what makes ours the worst democracy in the world.

Do you agree that there is complete lack of transparency in judicial appointments?

The provisions of the Constitution must be upheld in true letter and spirit. The judges have their liking, and so do the politicians. And in the entire gamut of things, money has become a liking for everyone. The system of appointment of judges is the most unfortunate thing.

Judges take money for recommending someone’s name; there is a lot of corruption in this stage itself. I have known judges against whom the Intelligence Bureau (IB) has filed adverse reports. The same thing happened the second time, but the third they said ‘Ok’. There is a certain manoeuvrability about the appointment process.

The IB has information about every instance of corruption with them. But if the politicians want (to elevate) somebody, the IB report is overlooked. If judges want somebody, there is a barter system in place. They say, ‘This is my man, this is your man, forget the IB report’. It is very much an ‘I scratch your back, you scratch mine’ system.

Do you see a direct co-relation between pendency and vacancies?

Yes, there is a direct nexus. Apart from that, most judges are not working the way they should be working. They adjourn matters on small pretexts. If you give that kind of liberty, the lawyer will also avail of it. I feel most judges say, “Why should I waste my time and energy to change things?’

The amendment to the CPC, which placed a limit on the number of adjournments is not being implemented. For instance, for cases under Section 138 of the Negotiable Instruments Act, 180 days is the upper limit for disposal. Many of these cases have been going on for 6-8 years.

A lot of senior lawyers in India do not believe in paying juniors. What is your take on this practice?

That is absolutely not correct and is unethical. It is up to you to determine how much you pay, but the junior has to be paid. I had experienced it myself when I worked with a senior in Delhi. I was used as a peon, a chaprasi and an advocate, and I was not paid for ten months. He then gave me five hundred rupees, and again did not pay me for five months. I stayed on because I wanted to become a lawyer and had no other option.

Having said that, most lawyers make money only at the fag end of their careers. So, juniors have to be paid proportionate to the work they do. If you pay them too much, they will not come up as good lawyers. Fending for yourself is learning in this profession.

This interview was done in March 2017.

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