As a government advocate, you will fail in your duty if you just act as a mouthpiece: Senior Advocate Vikram Huilgol

Vikram Huilgol is a lawyer who has sound expertise in areas such as taxation and commercial law, and is one of the youngest Senior Advocates in the country. .Huilgol, who was formerly an advocate for the Karnataka government, believes that a government counsel would be "failing in his duty" if he acted just as a mouthpiece and did not question government officials on the State's cases..In this interview with Bar & Bench's Debayan Roy, Huilgol speaks about the system of Senior designations, developments in the field of taxation laws, how the courts and the governments came together to resolve issues arising out of the COVID-19 pandemic, and more.Edited excerpts follow..Debayan Roy (DR): What is your opinion on the new system of Senior designations? Does it better recognise lawyers who are deserving of the gown?.Vikram Huilgol (VH): It’s a ‘yes and no’ sort of answer. Yes, it does promote merit in a more transparent manner than possibly what it was before the Indira Jaising judgment, so definitely yes. To that extent, it does promote merit, but I’ll also be honest to say that the criteria on which that merit is gauged might be slightly skewed in favour of certain persons.For example, I have a thriving civil court practice, and a thriving magistrate court practice. I don't think the current system really helps me get designated much. How many reported judgements do you have? Judgments in the lower court don't get recorded. When you give 40 marks to that, that’s a lot of weightage to something which a large chunk of advocates across the country don't have access to. They simply will not have any recorded judgments.There’s a lot of weightage given to academia. That is, to be very honest, sort of skewed in favour of the younger Senior Advocates, because we are more recently enrolled and graduated from law schools that promote academia or academic work. So, some of us younger Senior Advocates had a fair bit of articles and academic work which we could submit, whereas a 60-65 year old would most likely have nothing at all. There again, the marking system, possibly, could be revisited.Again, when you look at the larger picture, how else do you gauge merit? Like I said, it’s a ‘yes and no’ answer. Yes, it does promote merit, but how that merit is to be judged at the end of the day might need a bit of fine-tuning, I think..DR: You are among one of the youngest designated seniors. Is it now a tangible goal for a young lawyer to desire to be a Senior Advocate before he steps into his 40s?.VH: It is. More so, in view of the criteria that are now laid down. It definitely helps us a lot more. The earlier system was so opaque, no one really knew how it was being done, but now it’s a lot more transparent.We submit applications, it’s available for public view. If I had submitted, say only five reported judgments and somebody has submitted fifty reported judgments, if I get more than him, the transparency in the system shows. It does encourage us younger lawyers to submit applications, because at least now we know it’s that transparent.For first-generation lawyers, it’s a lot more comforting to know that there are certain criteria by which they will be judged. It won't go by other intangibles which have generally prevailed in the system..DR: In your experience, has the Karnataka bar been welcoming to a young Senior?.VH: Yes, and that’s largely thanks to the stellar performances by younger Senior Advocates who have been designated in the last couple of rounds. In 2014, there was a round of designations where there were a lot of Senior Advocates who were in their late 30s-early 40s, and they all did extremely well.Possibly, at that time, there was a bit of apprehension as to how they’ll do. Again, in 2018, there were a bunch of people in their early 40s-mid 40s. All of them have done so well. So, when someone who’s 40 like me is designated, it’s looked at with a lot less trepidation than what possibly would be in 2005. Like I said, I have to thank my predecessors in the last two rounds who have done such a stellar job. .DR: Was it always a part of your plan to be a government pleader in the High Court? How was the experience?.VH: Not at all. I’ll tell you exactly how it happened. I was in a firm called King and Partridge. I was doing a lot of indirect tax work. I was also just about getting married then. The plans were to continue, because obviously the monetary aspect is far more secure in a private setup.Then Advocate General Madhusudhan Naik called me and said, ‘Vikram, why don’t you give me a CV?'I said, ‘For what?’He said, ‘Just give me...'I had no plans. Obviously it was to appoint me as a government pleader, at that point. It happened after a delay of one year because I had not completed the requisite number of twelve years. This was definitely a life-changing experience, simply because of the exposure you get to the variety of subjects, the variety of opposing counsel, the variety of judges.Looking back, four years were really well-spent. Of course, I can’t deny the fact that with the Advocates General - I served under three Advocates General - all of them were really supportive. You can’t really do a great job without a supportive Advocate General. Mr. Madhusudhan Naik, Mr. Udaya Holla and Mr. Prabhuling Navadgi, all of them were really, really supportive. It’s important to have a team that supports you. .DR: When you were a government pleader, was it important to espouse a case for the State government no matter what?.VH: No, not at all. I think that’s a very important thing you need to keep in mind. Yes, the government is your client, strictly speaking, but you need to remember that the government is ‘of the people’. You need to remember that you are eventually trying to do justice for the people. It’s not like a private case where you have to espouse your private client’s cause. Nothing else matters. When you’re pleading for the government, it does matter. For example, if I take a PIL, you can’t only defend the government to any extreme. You need to understand the Court is also trying to help the people. You can be a massive part in that process of helping the people. If you remember that, I think a lot of government advocates can do an excellent job. I don’t mean only in PILs. Even in certain cases where an order has been passed, no hearing has been given, we have to be fair. There is a citizen who has suffered an order without a hearing. You can tell theCcourt and you have that leeway as a government advocate. It is also important to remember that as a government advocate, you must question the government officials who come and brief you. A lot of times, they will only push their agenda, but as a government advocate, you’ll be failing in your duty if you just act as a mouthpiece for them.At the end of the day, of course you have to defend the government. But not to an extent where you’re unfair to the Court or unfair to the people who the government is serving. .DR: The Central and the State governments are responsible for a majority of litigation before the courts. What role does a government law officer play in helping curb such litigation, particularly the frivolous appeals? How responsive is the State to such advice?.VH: Certainly, a government advocate can help. Classic case was, there’s a simple requisition file, natural justice. We don’t want five hearings for it, we can cut it short in one hearing. So, you can certainly reduce litigation in that way. When an order is passed - at least in the Karnataka liquidator’s office, every order that is passed where you’re appearing, we need to give an opinion on whether it’s a fit case to appeal or not. That’s where again you have a lot of discretion. There may be a case which is possibly a 60-40 case. Then you can file an appeal and take a chance, but there are cases where you know that there is absolutely nothing in your support. There's no point in giving an opinion and just adding to the pendency. Generally, government officials listen to this. .DR: Why did you resign as a government pleader?.VH: Very frankly, I think everything has a shelf life. So does being in the Advocate General’s office. Four years, I thought, was a considerable period of time.Finances are a consideration, but also the fact that after a certain period, there’s a huge amount of stagnation. To develop as a lawyer, you need to also think for yourself. .DR: Coming to some recent judgments of note. What is your take on the Supreme Court judgment which interpreted the 101st Constitutional Amendment, which requires the Centre to compensate states for any revenue loss due to implementation of GST?.VH: It’s absolutely right. I’m not blowing my own trumpet here, but I have been saying this from day one that the way Article 246A has been structured is a marked departure from the entire scheme of the Constitution. Because now there is not a concurrent power but a simultaneous power that is being devolved on the Centre and the State. I remember speaking about it at the early seminars where I said, ‘Let’s say a state wants to completely ignore what the GST Council says and what the Centre says. It has the power to do it because Article 246A does give that power.’ In a way, it does vindicate what I’ve been saying for a long time. I completely agree with that judgment. .DR: It has often been said that to address mounting disputes under the GST system, India needs to institute a GST appellate tribunal. To date, it has not been constituted. What is the way ahead?.VH: If the government is considering tribunalisation as the way forward, then the least it has to do is to appoint members to the tribunal, notify these tribunals and start making them function, because there are a lot of petitions coming straight away from the first appellate authority to the High Court because there are no tribunals. It has to be done at the earliest. It’s not just the GST Tribunal..DR: Do you think the tribunals have not been functioning properly? What can be done to fix things?.VH: Not the way it was intended. One. The appointment process could be a little more transparent. You could get better judges.Two. There are certain technical members who need judicial training on how exactly to conduct court proceedings. That’s not happening. There are tribunals where they sit at 10:30, rise at 12:30 and they’re not very accountable. They are not answerable to anyone. That’s not the way it should function..DR: Was there ever a time when tribunals functioned as intended, or is there a recent decline?.VH: Possibly. Originally the way it was intended by the Central Administrative Tribunal, possibly. I don't know. Let’s go back to the 90s when I wasn’t practicing. What I hear from seniors, it was functioning a lot better than it is now. .DR: There have been so many occasions when the Supreme Court has told the Centre to wrap up tribunals if it doesn't want them to function..VH: Correct. I think they’re right and I also think one of the ways forward is to send it all back to the High Court and increase the strength of the High Court, because we know High Courts are functioning. I’m not a big fan of tribunalisation but it is what it is..DR: How can the issues surrounding the GST system be better resolved?.VH: It’s overly complicated from what the earlier VAT system was. Too many returns, too many forms, too many compliances. The whole point of GST was to simplify. I think we’ve sort of regressed. In April 2005, VAT was introduced and until it got repealed in 2017. I’ve seen the entire life of VAT. There really were very, very few disputes because it was a fairly simple system. Yes, there was certainly a need to have ‘One Nation, One Tax’ where indirect taxes were unified across the country and VAT was not permitting that. So, I agree with why GST was required, but I think the manner in which it’s done can be simplified. We just need to reduce the compliances. It’s not citizen-friendly. .DR: How much of an impact do you think the Taxation Laws Amendment Act 2021, by which the Centre has proposed to do away with the retrospective application of amendments of the Income Tax Act, will have on foreign investment in India?.VH: The whole point of doing away with retrospective amendments is to give an element of certainty to law. If you enter the financial year 2022-23, you want to know what the law is for that year so that you can plan your taxes for that year. In 2025, if you are going to retrospectively amend and change the law as it stood then, it leads to uncertainty which would obviously deter a lot of investments from coming in. I think it’s definitely a good move but it’s something we will have to see in the long run to see how well it works. .DR: Given the fact that the pandemic has substantially subsided, many courts are insisting that lawyers appear physically. Do you think this is the right approach? .VH: A lot of judges are insisting on physical appearance. They hear you, but they are not happy with you appearing via video conference. I think the pandemic was devastating in India, but some good things came out of it, one of which was the fact that the High Courts across the country had to move towards this video conferencing system. It was the need of the hour. Having done that, I’m not a big fan of completely taking it away. It has its advantages and disadvantages. I can understand why judges might be unhappy with lawyers appearing via VC. Human interaction, there’s no substitute for it. If you’re sitting across the table and talking, it makes a lot of difference as opposed to talking on Zoom. I can understand that point of view.I can understand the bar’s point of view as well and that is more of a monetary concern. Suddenly, now you have advocates in Delhi appearing in Calcutta, in Bangalore, in Bombay. Suddenly the Bangalore bar is saying, ‘Why are we losing out on work to someone who’s sitting in Delhi? If this VC system was not there, I might’ve got that case.’ Those are legitimate concerns, but there’s also a need to move with the times. Possibly, judges can then be a little more discerning.Having said that, in 2020, the initial days of the pandemic, the Karnataka High Court heard one of those Franklin Templeton issues at length, and everything via VC. So, it can be done, but it’s a mindset thing. I’m still not very comfortable appearing in my chamber, I’d much rather be there in person, but that’s an individual thing. I think the choice has to be given. .DR: You appeared for the State in a number of matters dealing with COVID19 . Give us some insights on how the High Court and the government worked together to address this entire issue..VH: It was a pathbreaking PIL in many ways. It was the first case which was heard via video conference across the State. Karnataka, if I’m not mistaken, was possibly the leading High Court, in so far as handling COVID-19 related issues. It wasn’t just patient management or oxygen management, those were also issues, but there were a lot of lockdown related issues, initially.To be fair to the government also, it was the first time ever in the history of India, an overnight lockdown. There were a lot of unfortunate things that happened. Probably the migrant crisis could’ve been handled better. The courts of Karnataka nudged us so much in working in the right direction that finally, the people benefitted. Honestly, looking back, it was a very satisfying period of my legal career. Knowing that your work is benefiting so many of the voiceless, the marginalized. .My job as a government advocate was not just to raise issues, we also had the advantage of resolving those issues. There would be non-stop phone calls to government officials, IAS officers.At that time, to give credit where it’s due, the government also would take my opinion. A lot of those suggestions turned out to be useful. The courts across the country did a great job, but particularly Karnataka did a really stellar job right from day one of the lockdown. It took less than ten days to know that there are so many issues that need to be addressed. It was a really tiring process, but a satisfying process.