“I have great faith in the Supreme Court” – Zia Mody, Author and co-founder of AZB & Partners

Zia Mody may be one of the country’s top corporate lawyers, but right now, the co-founder of AZB & Partners is more focused on a project that has little to do with the corporate world. We are sitting in her office on the 24^th floor of Express Towers at Nariman Point and you can see Marine Drive glimmering down below. She takes another sip of coffee and asks, “Is it readable?”

Published under the Shobha De – Penguin imprint, “10 Judgements that Changed India” is an analysis of ten Supreme Court judgments covering a range of topics including human rights, constitutional changes, issues of religious significance and environmental issues that have had a major impact on Indian society.

On her choice of signing Zia to write the book, Shobha De tells Mid-day, “It’s all in the genes. Zia is Soli Sorabjee’s daughter and is possibly the sharpest, brightest, most respected legal mind in India today. Nobody else could have done the book.”

Talking about the choice of 10 judgments, Zia says, “We wanted the readers to understand that there was a certain thread running through all the judgments. We are basically saying that the Supreme Court acts as a custodial guardian of constitutional and fundamental rights”.

In the book’s Foreword, Zia’s father Soli Sorabjee, writes that the judgments described in this book continue to have a real and resounding impact on society as whole. Speaking to Bar & Bench about the book, Soli says, “It is good that people of India know of certain Supreme Court decisions with effect to the lapse of the nation and consequently their own lapse. A book which lists those judgments is very important because a judgment is not between A and B or X and Y but judgments are laid on principles which affect the growth of the nation or may impede the growth of the nation depending on what that judgment is. But what is important to know [is] the importance of judicial decision-making and this book brings that out.”

In this interview with Bar & Bench, Zia talks about the book, challenges during the process and the common thread in all the ten judgments.

Bar & Bench: How did the idea come about?

Zia Mody: Actually it was not my idea at all. One day, Shobha De told me that she was doing a series for Penguin and that she thought that it might be a good idea for me to write this book and whether I could take it up. She was quite excited and quite keen for it to happen. And her enthusiasm became infectious and so I said “yes”.

Then we had to think of which judgments we could choose and why. I made a list of cases, spoke to my father and got Shobha to share her thoughts. She made some changes and had some new ideas. Then we started working on each chapter and that is how we went about it. The total process took about 18 months to 2 years.

B&B: On the decision to select these judgments.

Zia: I think the reason why we chose these judgments was we wanted the reader to understand that the Supreme Court is there as a custodial guardian of our fundamental rights. People have asked me if these judgments have really changed the society, and I think, maybe they haven’t changed [the] society as yet but they have given society access to a number of rights.

One of the questions answered in each chapter was, “How much of a social impact has this judgment made?” The Vishaka judgment, for example, made an impact in the area of sexual harassment. In Kesavananda Bharati people were given the assurance that the Government could not take away their fundamental rights; there was a certain social impact as well. Then cases like Maneka Gandhi and Olga Tellis helped expand the scope of Article 21 (Right to Life) to include right to privacy, travel, livelihood and shelter. All these judgments have ramifications for people who have access to justice. Our problem still is that access to justice has not really proliferated. But at least we have guiding principles.

B&B: Were there a lot more judgments fighting to be part of the list?

Zia: Not too many more, there were some more. The one that got away was the ‘Bommai’ judgment where the Supreme Court laid down the basis on which the President’s rule can take place. My father and I debated about this chapter; he really wanted that one but it didn’t make it to this book.

B&B: The most important judgment or the one with the biggest impact?

Zia: I think its Kesavananda Bharati. It really is the guarantee of the democracy. So things must flow from there.

B&B: What was the hardest part of writing the book?  

Zia: The hardest part was to write less like a lawyer. You tend to write a lot of legalese, and use frosty English but the publishers and Shobha kept coming back to me to make it more readable. So, I had other people look at it and take away the legal language or expressions, [and] make it have a much easier tone. So, that was a challenge because it meant going back and redoing each chapter quite a few times.

B&B: You have analyzed judgments from the 1970s to 2011. How do you think Indian judiciary/ judicial system has evolved?

Zia: I think it has become more activist. It is willing to take issues head on. Courts are more willing to go on the front foot, and in certain cases maybe more than it should, simply because they believe that no one would fill that vacuum if they don’t. It has become more aggressive about making sure that the government is made accountable and that is what we have seen over the last few years.

B&B: In the prologue, you write, “I believe that if there is one thing that most Indians will still remain deeply proud of and have abiding faith in, it is their judiciary”. Do you also share their faith?

Zia: Absolutely

B&B: What do you say to the cynics then?

Zia: Cynics remain cynics. I am not going forward on the proposition that the judiciary is 100% perfect but do I have more faith in them than not? Of course I do. What would the cynics say, that the Supreme Court is “not effective”? I would say, “What more did you want it to do?”

I would also ask the question, “Would you have been better off without these 10 judgments”? In short the answer I would think is an obvious ‘no’.

So cynics may not be cynics for the sake of being cynics but they may be disappointed simply because they may have had set much higher standards for the Supreme Court; and the Supreme Court sometimes doesn’t deliver, sometimes nasty rumors do rounds. I don’t think it is a 100% perfect but I think it is almost there. I have great faith in my Supreme Court judges.

B&B: In the book’s prologue you write, “Unfortunately, what remains is practical reality of a long road yet to be travelled to unwind institutional and cultural discrimination against women.” What do you think are some of the institutional obstacles women face in Indian law firms?

Zia: Women start pretty much at the same level in corporate firms, 50-50 recruitment almost. Where it becomes difficult is as a girl gets more senior, gets married, gets a child I think she feels the pressure of managing too many situations on her and the one she sacrifices is the work place. So, I don’t think there is a glass ceiling but it is the ability of the woman to stick it out for that much longer in what can be a tough environment. If you look at AZB, nearly 50% of our Partners are women, which is a big number. Why? At AZB you will not be put down for the time and the multi tasking that must happen because you are a woman. I think that is where most of the organizations have to yet mature.

I mean what is the point of saying that everybody is rigidly equal, ruthlessly equal. That’s fine but sometimes people need to be treated differently and that includes the men. It doesn’t make the competitive edge necessarily go away. I think why women dropout is because they are such proud professionals and that they just feel they will not be treated on the same level. Rather than stay in the work place they would rather leave. I have always battled with that proposition. I don’t think the women should think that way; you have to work in your environment the best you can.

B&B: In the chapter on the Vishakha judgment you write, “Unfortunately, despite the strides made by Vishakha, most employers are yet to constitute complaints committees.” How has AZB approached the issue of sexual harassment at the work place?

Zia: Since the managing partner is a woman, I have not heard of sexual harassment at the work place (pauses) It is unthinkable. At AZB the message is very clear that women are equal. Sometimes we feel we are more than equal, so the question of the males harassing us doesn’t even enter our heads. I always tease my male Partners that the committee has to have a majority of women and if they think that they can handle their female partners, well god bless them on the committee (laughs).

I think that if the DNA is right, it is not a problem. If you lead from the top, it’ is not a problem. It is when you allow a bad example to fester then it becomes a problem.

B&B: One of the chapters is on the appointment of judges. What are your thoughts about judicial appointment commission and the fact that the Executive will now have a role to play in the appointment of judges?

Zia: I am not sure I have made up my mind on this. Earlier the Constitution also required the Executive to play a role and the judiciary had to be consulted. I think over the years because the judiciary, specially during the Emergency, felt that it was possible that the process would be abused by the Executive. And because the whole process contemplated apolitical, rational, unbiased selection, the judiciary sort of thought to ring fence itself from these attacks that would affect its independence and affect its moral judgments. So the Supreme Court Advocates-on-Record Association v. Union of India really changed consultation to concurrence, and I think the Executive has felt pushed out of what it feels a legitimate area in which it needs to have a say and discussion as well. I see merit in both sides actually and the way Kapil Sibal has tried to present the [Judicial Appointment Commission] Bill is to try and keep it as inclusive as possible, and to have representation from all paths.

I guess at the end of the day; if the Executive could veto the judiciary, then I have a problem and that is the bottom line.

B&B: Women dominate as the central figures in four of the ten judgments. The Indian judiciary seems to have done a lot for the upliftment of women but looking at the current scenario it seems that a lot still needs to be done. Your thoughts?

Zia: Of course there is always more to be done. Our DNA right now is such that even though we have these judgments, our thought process hasn’t changed. Our DNA is still not accepting the equality of women; forget about the work place, what about home? Right from the dowry system, which continues; the rapes continue. So there is a lot to be done but I think that it can’t be only at the door of the Supreme Court.

The Supreme Court can be used as a legislature for the Executive to say, “Now this is the law of the land we have to follow it.” I don’t think the Supreme Court would object if they were shooting from their shoulders, but ultimately how do you get each gram panchayat, each village, each Sarpanch to think differently? That is a generational issue and I think that will only change with education of the girl child, the upward mobility of the masses, reservation of women etc even though it might take time. I think it is a generational change rather than a change of one decade.

B&B: Do you ever regret not continuing practicing as a counsel? Your father did mention that he is disappointed that you do not practice in courts.

Zia: I would love to be a junior of the giants of the yesteryear; but the truth is that I am happy with what I am doing. I still get involved in litigation strategy but I don’t think I want to go to court everyday. I have the benefit of being able to talk to senior counsels, discuss my matters with them, and discuss their matters; so there is lot of engagement still with friends of mine who are now well reputed barristers but who were with me at the Bar at that time.

B&B: With your busy schedule how did you manage to write this book?

Zia: I had great help from the youngsters. I think I enjoyed doing it. Chintan Chandrachud did a lot of heavy lifting and two other youngsters Jeet and Rishika helped a lot. They would take my idea, conceptualize it and try and put something on paper for me to look at, take me through it etc. A lot of readability changes were made.

B&B: Any message for the young lawyers.

Zia: I always tell them keep the passion. So even at the age of 57, if I am happy about writing a book, that is passion.

B&B: Do you plan to write another book?

Zia: No. One is enough. (laughs)

You can read Apar Gupta’s review of “10 Judgements that Changed India” here.