Conversation with Senior Advocate Arvind Datar

Bar & Bench speaks with Senior Advocate Arvind Datar, who has been a litigating lawyer for more than three decades. In this interview, he talks about his initial years and how writing books helped boost his practice. The senior counsel also shares his views on the collegium system of appointing judges, the condition of tribunals, and judges taking up post retirement posts. .Bar & Bench: What made you choose law as a profession?.Arvind Datar: My father was a captain in the Merchant Navy and I too wanted to join the Navy but after I finished my 11th standard I had a small surgery, which at that point of time was a medical disqualification. I then completed my B.Sc (Hons.) from Bombay University; and at that time I was deep into debating. I used to attend Palkiwala’s lectures at various fora. So, I decided to do law along with cost accounting, as I wanted to specialize in taxation. I did accounting in the evening and law in the morning. After I finished cost accounting, there were lots of job opportunities that were paying almost Rs. 2,000 but I decided to be a lawyer and I stuck it out..B&B: How were the initial years?.AD: Even after I joined law school, I had decided that I would stick around for a year or so and if I don’t like it, I will take up journalism or accounting. But I loved law from the beginning. I chalked out my career. I decided that I would be in a civil office for one year and then I will leave and join a tax office; and I will leave the tax office in the fourth year and will set up my practice in the fourth year. Everything went as per schedule, nothing happened by accident..I enrolled in the Bar in the 1980 and on March 1, 1984 I set up my own practice with virtually no money in the bank. Initially, it was quite a struggle. Although I had set up my practice as a tax lawyer, I refused to go to any client’s office. I said, “If you want to meet me, come to my office”. I consulted Seervai on this and he said, “You should never go, only exception would be if you are a law officer then you can’t expect the PM to come and see you, otherwise you should not go”..B&B: Did you lose out on a lot of work because of this decision?.AD: I lost a lot of work. In one way it was good because I got more time to write. I decided to write an article a week. So in 2 years (104 weeks), I wrote 77 articles in virtually all the journals and those articles helped me a lot because I got invited to seminars and conferences. Then the Central Excise Tariff Act came in 1986; and I wrote a book on Central Excise tax in 1988 and that year my income quadrupled! I didn’t look back after that. The next year I wrote a book on Excise procedures. Later, I was asked to be the editor of Ramaiya on Companies Act. We had a fantastic team of 10 lawyers in Chennai who completely revamped the legal aspects of Ramaiya and everything was edited by J.C. Shah..B&B: What would you say was the turning point in your career?.AD: One was writing the book and secondly making a plan and sticking to it. In our profession, we can’t advertise and the only way, perhaps, to get work is to be known. You see in Madras, I was an outsider; I was not a Tamilian. I had no parents or family in the profession. That was perhaps the impetus to go that extra mile which perhaps paid off. So I tell everybody, write as much as you can, address as many seminars as you can..B&B: 2000 – the year you were designated as a Senior Advocate – talk us through that..AD: It was totally unexpected. I was designated a senior in 2000 and that again took a long time as I had decided that I would not apply to be a senior although my colleagues had applied in 1996 and became seniors. I said, “I will die a junior but I won’t apply!” So in April 2000, the then Additional Solicitor General in Madras for southern region asked me why I haven’t become a senior. I said that I did not want to apply. When he asked me the reason, I said that some seniors told me that one should be called to become a senior and should not apply. He said, “Do you mind if I apply for you?”, and I said it would be an honor. So within 2 days I got all my Income Tax returns’ copies and gave it to him. It was just before the vacation that he proposed my name and it was taken for consideration after the courts re-opened. In July, I became a senior..B&B: What are your views on judges taking up post retirement jobs?.AD: I think it is very wrong. Actually it is a difficult decision, because you do have cases where good judges have been appointed to important tribunals and have made a huge difference. But again, what happens is that some people subvert the system. There is no basis on which a particular judge should be appointed to a particular post..The other issue is that most tribunals are specialized bodies but you have generalist judges appointed. It basically becomes a post retirement employment opportunity not only for judges but also for retired bureaucrats. Frankly, it is better to raise the age of retirement of High Court judges to 65 like Supreme Court judges and bar further appointments. It is better to have a tribunal system where you become a president of the tribunal when you are 62 and then you retire at 65 but with no post thereafter. Today, in some tribunals retirement age is 67 or 70..I think we should not have this system of appointing judges to various tribunals and the other unfortunate part is that these judges are not treated well. Take the example of Intellectual Property Appellate Board (IPAB). We have a wonderful Chairperson, Justice Prabha Sridevan, but she has no car, no infrastructure support. She travels in a tourist taxi with a red light, which is absurd. When she comes to Delhi, she has no place to sit..B&B: What is your opinion on the collegium systems of appointments and do you think it requires a re-thinking?.AD: Absolutely. If you see the reason why the collegium system came into existence, it was an extreme pendulum swing to the overbearing Executive at that time. Surprisingly, if you see the Second Judges Case by the 11-judge Bench, the Union government did not object to the collegium system. So it is more like a consent order. I think the collegium system is an absolute disaster because you are now appointing people on seniority and there is no explanation. There is absolutely no transparency and everybody, including retired Supreme Court judges, opines that the collegium system is disastrous..Once Ram Jethmalani mentioned that one method could be to take first 4 to 5 judges in each High Court and place them in a “zone of consideration”. You track their judgments in the last 5 years, see what they think and choose the best and choose in terms of specialization. Unfortunately, though it is not said openly, all of us know that merit is often like an optional accessory. You have factors like caste, religion, gender and so on and then there is an unspoken quota kind of system. The entire Bar is virtually unanimous that they are not selecting the best from the High Courts..B&B: Lets talk about the Sebi vs Sahara dispute – What happened there? There was a lot of controversy and SCBA President Krishnamani eventually intervened?.AD: It has really been blown out of proportion. All I told the Chief Justice was to record the objection of SEBI. What SEBI said in the Court was that this order was passed by another Bench and this application should be heard by that same Bench; and the other thing which I told the Chief Justice’s Bench was that, if you accept the submissions of Sahara, it will amount to modification of that order. There is no concept of intra court appeal. So the Chief Justice said that we have to look at the interest of the investors. He further said a three judge Bench could pass such an order..My main worry was that SEBI, being a governmental body, is subject to so many restrictions. Now, if you read the order of December 5, 2012 there is no line saying that SEBI objected or SEBI opposed. Five years down the line if anybody reads the judgment, it will appear as if SEBI agreed to the whole change. I respect the Chief Justice’s decision; he is entitled to take his view. I may feel you can’t alter; he may feel he can alter; ultimately the Supreme Court prevails but I felt that they should have just recorded my objection..Because of the amount involved, because of the fact that Sahara group was involved, the entire Bar felt that it was wrong. It is a dangerous practice. Once a Bench has passed an order, another Bench cannot issue notice and modify a final judgment. My only objection was that all the objections must have been recorded but unfortunately it got a lot of bad press and the SCBA President Krishnamani raised objection. It was unfortunate and should not have happened. And I think, in that sense, these are slow cracks and damages that are done to the institution. Today in India we are only left with the Supreme Court..B&B: Going back to the condition of various tribunals. What are you views on the state of sectoral tribunals?.AD: I have been fighting this tribunal battle from 1991 when I filed my first PIL against the Company Law Board (CLB), when the CLB was formed and rules were framed that only civil servants could man the CLB. I am afraid no Supreme Court judge has really understood what we are trying to say in the 5-judge Bench decision also (Union of India v. R. Gandhi). What we are saying is there is a judiciary, don’t hack away its powers and give it to tribunals. Tribunals definitely have a place. I am not saying that there should be no tribunals. There should be tribunals where the dispute is between the citizen and the state. Fundamentally, where the lis is between 2 citizens or 2 private parties, there should be no tribunal; it has to be the judiciary. I am principally opposed to patents tribunal and trademark tribunal; it’s powers should be vested with the High Courts. The creation of Debt Recovery Tribunal (DRT) is wrong. Why have a DRT with complete administrative machinery? Instead 2 or more judges could have been selected out of 50-60 district judges and designated as specialized courts to deal exclusively with bank cases. It would have solved the problem but instead the DRT was created. The National Tax Tribunal is perhaps the worst. How can you have retired commissioners and retired government servants deciding substantial questions of law? Now what is happening is that bureaucracy is attracted by the umpteen possibilities of retired jobs..All I am saying is lay down clear principles as to what will be in a tribunal and what will be in the judiciary and stick to that. The tribunals should be confined to a few specialized areas and it is important that generalist judges should not be appointed to these specialized tribunals..B&B: What are the changes you see in the Bar?.AD: In the Bar, I feel that the quality of people who are coming into the profession has improved substantially because of the law schools. At the same time there is a yawning gap between the students from the 25-30 leading schools and the other law schools. That has to be bridged. Secondly, I feel that there is a drastic drop in language standards. I find that the quality of drafting of many younger lawyers is woefully inadequate because there is no emphasis on learning English at all..However, the biggest thing is that I find phenomenal improvement in the capability of the younger generation. What I knew at my age is not even 10 per cent of what some of my juniors know. Though I wish more of them litigate..B&B: What do you think can be done to get more law students to join litigation?.AD: May be it is not fair for me to say it but having observed number of interns and interacted with young lawyers, I find that money seems to be the driving factor. You get a job today with a handsome salary and you just take up that job whether you like it or not. And after 2 years, I come to know that somebody wants to do LL.M. There is this craze to do LL.M in the UK and US. I don’t understand the reason..I honestly feel that in law school there should be sessions on goal setting, career planning and so on. I primarily tell my interns to remember one fundamental rule – that money is a byproduct and not the goal. If you wait for 5 – 7 years, the rewards would be enormous but nobody wants to wait..B&B: What are your thoughts on the current system of legal education especially in reference to the national law schools?.AD: I think it could be made a four-year course, which should be more than enough. In all law schools, there should be a compulsory course on Accountancy; or at least make it elective so that those who want to practice in taxation get the opportunity to learn Accountancy which is very essential. I personally feel that this entire process of having only dedicated lecturers is wrong. We used to have fantastic lecturers who were practicing lawyers who would come and take classes. Law, like medicine, is one area where practice is very important than the theory..I would also put a complete ban on more law schools cropping up. There are far too many law graduates passing out with no jobs; so better to stop it and improve the quality and stop the quantity. The law entrance exam should be made extremely stringent and it should be a tough process..B&B: What interests you other than law?.AD: I like to travel. I like reading books particularly on management. What I am trying to do is to apply Japanese principles to improve productivity of courts. For example, applying Kaizen, a Japanese approach to the workplace, in our court system. We have 11 judges per million though we keep saying that we should have 100 per million, it is never going to happen because we don’t have the money. So, the solution is to double or triple the productivity of the existing judges by applying these principles. I spoke to some of the judges but there is reluctance. For example, you take the City Civil Court. I made a study and I found out that from 10.30 a.m. to 5.30 p.m., only two and half hours to three hours are spent in actual trial work; the remaining time is spent in calling, adjournments etc. Now that can be completely outsourced and can be given to some retired judge. So the trial judge can start at 10.30 in the morning and dispose of a trial. So anything that doesn’t contribute to disposal of a case is a waste. It is called Muda in Japanese. It should be eliminated..Also, we must bring in modern management techniques to the law; we are too isolated, still in Queen Victoria’s times as far as disposal of our cases are concerned.