If we have the CBI, what is the need for the Supreme Court to appoint SIT or an amicus – Senior Advocate PS Narasimha

Senior Advocate PS Narasimha has been in the profession for more than two decades. Narasimha is an expert in environmental jurisprudence and served as the amicus for the Green Bench of the Supreme Court for two years..In this interview with Bar & Bench, he speaks about his days as a law student at the Delhi University, his views on the state of tribunals and why the Supreme Court should invest time in correcting “institutions” rather than monitoring individual aberrations. .Bar & Bench: Can you tell us a bit about your entry into the profession?.PS Narasimha: I did my graduation from Nizam College in Hyderabad. Some of my friends were shifting to Delhi to prepare for the coveted IAS exam. They told me that the Delhi Law faculty is very good for pursuing law while preparing for IAS. Though I was not keen about getting into IAS, I was interested in doing law while staying in a hostel. That is how I came to Delhi to do law. .Bar & Bench: Can you recount your days at the Delhi University?.PS Narasimha: I was at Delhi University from 1985 to 1988. It was a great experience. Professor Upendra Baxi taught us jurisprudence. There were many other professors who made class room study interesting. Those classes evoked my interest in Constitutional law and Jurisprudence. Professor Baxi’s classes were amazing. Campus Law Centre was the leading law faculty in the country. It employed innovative methods of teaching. More than anything, because of their stature, the professors taught us in such a way that we never took any court’s decision/ judgment for granted. Such a spirit of enquiry was sparked in us by our professors..Coming to Delhi was in a way the turning point. It gave me the opportunity to see the Supreme Court, meet academicians, activists and many people with varied perspectives..Bar & Bench: What do you think are the reasons for the dearth of good teachers in law colleges?.PS Narasimha: Yes, this is a problem. Every State government is inclined to bring in good law colleges with the help of the High Court of the State. They allot huge plots of land, allocate large funds etc. but eventually they don’t find good persons to teach. So, they settle for post graduates (who are fresh out of college) to teach the LLB students. The experience of a teacher makes a lot of difference. There are bright students who might be interested in the teaching profession but a professor who has put in years of teaching experience makes a lot of difference..One of the reasons for the dearth of good law teachers is perhaps the salary factor. Fresh Law graduates prefer law firms because of the good pay package. Once a student gets into practice, it is difficult to go into the teaching profession. We have also not institutionalized our academics. Incorporating teaching faculty into real time adjudication, appointing them to important Constitutional and statutory posts will help us with the problem of a weak teaching staff..Bar & Bench: Where did you start your career after completing your course?.PS Narasimha: Immediately after completing law, I was with Justice Kuldip Singh for a very short period. I immediately realized that I should get some exposure to High Court work. So I went to Hyderabad for two years and practiced with my brother there. After two years of exposure to civil and administrative laws, I shifted back to Delhi..As I started practicing in Supreme Court, I met PP Rao who was kind enough to permit me to attend his office as “part time”. It was an extra ordinary experience to see that in Mr. Rao’s library, there was not a single book which had not been read over and underlined at important places. He is an example of ‘Industry’ with a capital ‘I’..After some time another opportunity came my way. Mr. VR Reddy, former Advocate General of Andhra Pradesh and Chairman of the BCI, shifted to Delhi. I was associated with him for a long time and I was conducting his cases in the Supreme Court. He was appointed as the Additional Solicitor General. The Attorney General and the Solicitor General had not been appointed by the new government and as such he was heavily burdened with work. I joined him and it turned out to be a great opportunity for me and I got good exposure to government litigation, drafting opinions, dealing with Constitution Bench matters etc. I worked with him for about two years after which I started my independent practice..Bar & Bench: You have been in the profession for more than two decades. What are the changes that you have seen at the Bar?.PS Narasimha: In twenty years, practice at the Bar has changed. There is nothing extraordinary about this. The numbers have increased phenomenally and patience has come down substantially. Since the volume has increased, the work demand on judges has increased multifold. So the laid back approach of hearing any case at length, understanding its various contours and brooding over the issues to arrive at a final decision has vanished. Quick decisions are arrived at. The jurisprudential basis, which is very necessary in a judgment, is absent. .I have seen the phasing out of certain branches of law and also development of some new branches. When I started in the Supreme Court, the number of service matters was huge. There were lawyers who specialized as “service lawyers”. Now, service matters have decreased considerably. This is also for the reason that the Supreme Court has taken the approach that matters involving findings of facts will be confined to the tribunals..Bar & Bench: What is your take on the composition of tribunals – especially the balance between the judicial members and the expert members?.PS Narasimha: It is a good balance. If we take the case of service tribunals, we see that the branch of law is governed by rules, and it is easy to look into the rules and interpret it; there is no technicality involved. So, it is not necessary to have an administrative member in a service tribunal. But nevertheless people who have been inducted as administrative members have also done fairly well..The real problem is with respect to many other tribunals which are being established. There are many technical issues which are dealt with by tribunals like Competition, Electricity, Airports etc. In those tribunals, the contribution of the technical members is enormous and many times you find the judicial members lagging behind and trying to understand [the technical nuances]. So, one very important thing which needs to be done is that the judicial members must be given some kind of orientation. For example, in case of electricity tribunal, a judicial member must be given an idea about what is the philosophy of the modern electricity law, why we have regulators, why is it necessary to determine tariff at an early date, what are the methods involved in the determination of tariffs etc..These tribunals apart from deciding disputes between the parties also have powers to exercise original jurisdiction. That is where they have to take control and ensure that the bodies working under the tribunals work very efficiently. Take for example the Green Tribunal; it invariably decides on decisions made by environmental authorities. These authorities are officials to whom applications are made for grant of environmental clearances. According to me, the method and the manner in which they scrutinize the applications and the time taken to decide an application is pathetic. These are things which need to be rectified. These tribunals must monitor and bring in the merits of efficiency, quality and consistency in their working..Bar & Bench: In that context, don’t you think our institutions, particularly those at the lower level in the hierarchy, have failed us?.PS Narasimha: I don’t think so. In our country we have individuals who are excellent; as good as you can get anywhere in the world. We have the best of the doctors, lawyers, architects, planners, bureaucrats, scientists. But, the average is lower than anywhere. We have to introspect on why the average is low..We have not focused on building the existing institutions and raising them to levels of reliability..Today, the problem is you don’t trust the system. The Supreme Court is monitoring everything. It thinks that these authorities, who have to take decisions, are not competent or trust worthy or not independent for political and other reasons. For example, if we have the CBI, an investigating agency, what is the need for the Supreme Court to appoint a SIT or an amicus? Also, take the case of the Central Empowered Committee to monitor all environment cases when we have the Environmental Courts existing under various statutes. Our focus must be to strengthen the system..Bar & Bench: What do you think is the solution to the problem?.PS Narasimha: The answer is not creating alternatives. The answer is in rectifying our existing systems and finding out solutions to make these institutions strong from inside. The Court needs to strive to bring about institutional efficiency, institutional integrity and institutional autonomy. And environment matters are a classic case in point. The Supreme Court is flooded with environment matters. It has single-handedly taken upon itself the entire burden. No application can be processed by the Central government without the stamp of the Supreme Court. It has reached that level because nobody can be trusted and all have decided that the existing systems are either corrupt or inefficient. This must stop..Bar & Bench: You served as the amicus for Green Bench of the Supreme Court for two years? How was that experience?.PS Narasimha: What I have recounted above is my experience. I think this method of distrust is wrong. I feel the Supreme Court must invest its time in rectifying the systems. If we see the American system or the British system, they give their life to building institutions. The institutional report is the final word there. You don’t need anything after that and this is how it should be..We need to develop the system where we can trust our institutions and give them the freedom to perform; like the man behind the Delhi Metro – Sridharan who said “We should learn how to trust our people.” That is exactly what we should do. We need to first focus on developing institutional integrity, efficiency and credibility and then let them perform with freedom..Bar & Bench: There is a petition pending in the Supreme Court for the establishment of National Courts of Appeal for different regions in the country as a means to reduce the burden on Supreme Court. Your thoughts?.PS Narasimha: I don’t think the Supreme Court can do anything about it. It requires a Constitutional amendment. However, what the Supreme Court can do is reduce the admission of number of appeals by raising the standards for getting a matter admitted in the Supreme Court. Supreme Court today is virtually the court of appeal against High Court judgments. I believe that Article 136 is fairness oriented jurisdiction. .Bar & Bench: You are known to be a senior counsel who pays his juniors well. That is not the case with most senior lawyers, a factor that deters youngsters from taking up litigation..PS Narasimha: Litigation is not a well paying profession for every lawyer. Not every ‘litigating lawyer’ is successful to the extent that he can support junior staff like that of a law firm. There are successful litigation lawyers and I don’t know why they are not paying juniors well. There is no justification for that. And it is true that it (low salaries) is a disincentive for them to get into the profession. We need to ensure that some decent stipend is paid to the junior. Therefore, we can’t complain that good brains are joining non-litigation..Another aspect is that when a law graduate chooses to practice and join with a senior advocate, what he is essentially looking at is to gain experience. After that, he is going to work hard and build up his own practice. So, to be frank this is not like a job in a law firm where you get paid for your work. Working under an advocate is like apprenticeship..In litigation, more than the senior lawyer being assisted by the junior, it is the junior who is learning from the senior; and in such a setup earning money is secondary. That said, there is no justification for paying less. There must be a balance. Else you won’t attract youngsters to litigation..Bar & Bench: What do you think about the relationship between the Bench and the Bar in the Supreme Court? The Supreme Court witnesses instances of confrontation between judges and lawyers. Contempt is initiated against lawyers and then they apologize to the court-.PS Narasimha: Not so much! Lawyers are greatly trained and the restraint on the part of lawyers is very high. It is only in extreme cases that lawyers give it back to judges or get into confrontation mode. But it is not a regular phenomenon at all. Judges were also lawyers at one stage..Bar & Bench: You were offered judgeship and you refused; could you tell us about that?.PS Narasimha: That was some time back; it came from the High Court of Delhi. I had just been designated Senior Advocate and I thought about it quite a bit and took the decision. The effort, attitude and the kind of approach required of a judge is very different from what is required of a lawyer. Great commitment and selflessness is required to become a judge..Bar & Bench: You have worked on many environmental issues and you are known to be an expert in that field? Could you talk about the jurisprudence developed by the Supreme Court in this regard?.PS Narasimha: Our courts – the Supreme Court and the High Courts – have time and again laid down various principles of environmental law. We compete with the world [in that regard] and we have the best of the environmental principles being laid down. When I was amicus for the Forest Bench, one issue that we gave thought to was why should we always follow the western method of the interpretation of environment? In western jurisprudence, there are concepts of the ‘public trust’, ‘inter generational equity’, ‘polluter pays principle’ etc. These principles are helpful to the extent that pollution is harmful to human beings..However, the western approach is anthropocentric in that everything is considered in terms of how helpful it is to human beings. So, for example, if there is a tree or a plant which is not useful to human beings, there are no legal principles under the western jurisprudence which would ensure that such plant is sustained. That is the limitation of the western approach..Eastern countries didn’t look at environment in this manner at all. We always believed that we are only a part of the environment. For eastern cultures, environment is not created for human beings to enjoy it. Our approach has always been that we are a part of the universe and we have no proprietary right over it. We live here just like a plant. You have no higher right over it. You are not a manager of ecology. At the most, you could say you are a trustee, because you have intelligence. Our ideology is ‘eco- centric’..The Supreme Court accepted this principle for the first time in two to three cases. It shifted from the anthropocentric approach to the eco centric approach. This is a new trend in the world. There are articles written by people [about it]. By accepting and approving ‘eco-centric approach’ as a part of the interpretation of environmental laws, our Supreme Court has actually taken a big stride..Bar & Bench: What role does a lawyer play in society?.PS Narasimha: A lawyer is very much like a doctor. When you go to a doctor, you put yourself in his hands. A lot depends on how the doctor talks to you, and tells you not to worry. Similarly, a litigant puts himself in your hands. As lawyers, we must respect the client. The space we need to give to the client is very important and youngsters must cultivate and be taught that quality. For any client, going to a lawyer is a humbling experience and the lawyer should also treat a client as a human being..It applies equally to a judge. Judges in their routine [usually] don’t care about litigants (as against litigation). We see instances when the respect due to any litigant is not shown, which is a very sad feature. Once when I was appearing in a case for a lady in a divorce matter, the husband appeared as a party in person. The Judge shouted at him as he was not a lawyer and he couldn’t reply to the questions. I told the judge that he (the husband) has a right to be treated with respect. He may be appearing against me but he had come to the court seeking justice. The courts and other institutions must respect individuals. Every litigant is a respectable citizen of our country and every institution must treat them with that dignity and respect..Again, the concept of lawyer and adversarial litigation is the greatest contribution of the western world. The sole and simple purpose behind all this is to find out the truth. This whole system of lawyering is nothing but pursuit of truth. What is all this system of court, lawyer, black gown and running around with huge books? Simple, we have to arrive at the truth..The system works this way. By its very nature, truth is very difficult to find. The facts leading to allegations or the claim for innocence must be subjected to strict scrutiny. This is done by having a system in which there is a prosecutor and a defence. When these perspectives are placed before a third person (a Judge), for adjudication, he would be in a position to choose those facts which are closest to the truth. Looked at from this perspective, we realize the actual role of a lawyer and of a Judge; they are one and the same. They are part of the system which works towards arriving at the truth..(As he accompanies me out of his office room, he shows me portraits of Mahatma Gandhi – shipments fresh with half torn brown paper wrappings. “I adore Gandhi…great man”, he remarks.).Bar & Bench would like to thank Advocate Ishaan George for his assistance in arranging this interview.