“Thanks to Kesavananda, no majority, however brute, can alter the basic structure” – Senior Advocate and former ASG, KV Viswanathan

Senior Advocate and former Additional Solicitor General KV Viswanathan has been in the profession for more than 25 years. Designated as a Senior Advocate by the Supreme Court in 2009, Viswanathan has appeared in a number of high profile matters. .In this interview with Bar & Bench, he talks about his initial days with Senior Advocates CS Vaidyanathan and KK Venugopal, his views on the Judicial Appointments Commission and his stint as ASG..Bar & Bench: Why Law?.KV Viswanathan: I come from a family of lawyers. I guess the atmosphere at home helps you make a decision. My paternal grandfather, whom I never saw, the late KR Viswananthan Iyer, was a leading trial lawyer in Nadapuram, Malabar. He passed away relatively early. My father and mentor, Mr. KV Venkataraman was a public prosecutor in Tamil Nadu and later had a stint as Standing Counsel of Tamil Nadu for criminal cases in the Supreme Court. Initially, it was my father who was very keen that I become a lawyer..B&B: How were the initial days in the profession? .KV Viswanathan: I attended the Law College at Coimbatore in the first batch of the five year course that graduated in 1988. During the entirety of the five years, I used to attend the chambers of Mr. KA Ramachandran, a renowned criminal trial lawyer at Coimbatore. It was a very memorable experience..My stint as a lawyer at Coimbatore was very brief. After enrolment, I spent a couple of months there and then moved to New Delhi. I joined the chambers of Mr. CS Vaidyanathan who subsequently became a Senior Advocate and also served as an Additional Solicitor General. It was a large office and we had a very good variety of work in different fora. I spent about two and half years with Mr. Vaidyanathan..He encouraged us a lot. A tough task master he was, but if you were ready for hard work, he gave you independent charge to handle matters and argue cases even in the Supreme Court. I enjoyed my initial days. When you are young, you have this raw courage bordering on bravado and a raging fire in the belly. With age, you sober down. Each day was a new challenge..B&B: What are the differences that you have found at the Bar in Delhi and Tamil Nadu?.KV Viswanathan: There is not much of a difference between the Bar in Tamil Nadu and Delhi. The serious members there and here work for long hours and quietly go about their business. There are a set of serious members in every Bar; ninety per cent of their time is taken in work. My senior at Coimbatore used to begin his work by 7.15 in the morning and wind up by 9.30 at night. And work of the highest quality used to happen there too. The work culture among the serious practitioners is the same. But those who are inclined to do politics at the Bar etc. are present everywhere..B&B: Subsequently, you worked with Senior Advocate KK Venugopal. .KV Viswanathan: The chambers of Mr. Vaidyanathan used to be the feeder those days for sending juniors to Mr. KK Venugopal’s Office. Mr. Vaidyanathan himself was a former junior of Mr. Venugopal and Mr. Venugopal used to rely on Mr. Vaidyanathan for getting juniors. I was lucky to be at the right place at the right time..I moved into Mr. Venugopal’s chamber in October, 1990 and worked with him till June, 1995. It was a sheer privilege to be associated with Mr. Venugopal. Work of the highest quality was available there. He was a senior who relied on his juniors and that kept the heat on you all the time. His massive law library, though intimidating initially, had all the books that you needed to refer. He was a great captain, who not only taught you how to play on the field, but also how to conduct yourself off it. Even now I go to him for advice, even for personal matters..I set up my independent practice in July 1995..B&B: When were you designated Senior and how did it happen?.KV Viswanathan: I was designated Senior advocate by the Supreme court of India in April, 2009. In a profession like ours, this is something an active practitioner aspires to be. So when I was nearing 20 years of practice, I spent a good part of the summer vacation digging out the reported cases in matters argued by me. When I thought I had a reasonable number, I applied. There is nothing wrong in applying since that is the system. There was a hiccup initially – in the meeting of October 2008, I was 15 days short of 20 years, but it went through in the April, 2009 meeting..In a lighter vein, I may say that I am on par with Lord Jessel, Master of Rolls, because I have read somewhere that he also got his silk at the second sitting..B&B: What is your take on the Judicial Appointments Commission (JAC)?.KV Viswanathan: I think we should welcome it and give it a chance. The architects of the collegium system have themselves felt that it has its problems. They themselves have said that even though they devised it with a particular intention, it has not brought about the desired result. For about forty four years, we experimented with the original system in which the executive appointed judges in consultation with the judiciary. Subsequently, we tried the collegium system for about twenty years. Now it is time to give the JAC a chance..England has its appointment commission and that system seems to be working well. One of the finest Queen’s Counsel of UK, Lord Sumption, had to go through that process before his appointment to the Supreme Court; and it came through the second time. He has been delivering landmark judgments as a Supreme Court Judge for the last three years. So there is no reason why we should not experiment..Yes, concerns have been raised about the method of the nomination of eminent persons. There is already a petition pending in the Supreme Court. Both Mr. Nariman and Mr. Sibal have said that they would be taking the matter to the Supreme Court..Having said that, I feel, ultimately the efficacy of the JAC will depend on the men and women who work it. If they want to do good to the institution, nothing can stop them. One cannot help recollecting our first President Babu Rajendra Prasad’s exhortation in the Constituent Assembly, that irrespective of how effective the provisions of the Constitution are, unless you have people with strong moral fibre to work it, the purpose will be defeated..The first few appointments [by the JAC] should set the trend. The Act will be taken to court, and if some ironing out of the creases is needed, and if it is permissible in law, let it be done. It is far better than throwing the baby out with the bathwater..B&B: But don’t you think there should be some criterion for selection to the higher Judiciary apart from what is provided in the Constitution?.KV Viswanathan: I think there are some unwritten conventions that [the collegium] follows and the JAC can formalise it. For example, minimum number of reported judgments; pro bono work should also be considered. The amount of income tax being paid alone cannot be the basis. Experts in fields like criminal law and taxation also have to be considered. There has to be diversity. In England, some men of Asian origin have been appointed. Mr. Rabindra Singh has been appointed at the age of forty seven as a High Court judge which is commendable. Apart from merit, they look at diversity. We also need to consider that because we are a diverse society..B&B: After nearly two decades, the country now has a government at the Centre with an overwhelming majority. How do you think this would affect the Judiciary, especially the Supreme Court? Do you think that the JAC is just a beginning of the tussle which might ensue?.KV Viswanathan: Thanks to Kesavananda, no majority, however brute, can alter the basic structure; it cannot be done Constitutionally. For the last forty one years, the basic structure theory propounded by the Supreme Court has guided the nation. Parliament and executive have found that the theory is based on sound logic and have totally accepted it. This is what great judgments can do; it can command respect for the Supreme Court..I don’t think the numerical strength in the Parliament can do damage to judicial independence and I don’t even think that the JAC is being brought about with such an intention. The JAC should not be seen as the beginning of the tussle. This was a concept conceived in 1989 when the late Dinesh Goswami was the law minister and it has attained fruition after 25 years. Let us give it a chance..B&B: Do you agree with the practice of the senior most judge becoming the Chief Justice of India?.KV Viswanathan: I think that is important. When seniors were overlooked in the seventies, on two occasions, it was a clear attempt [by the executive] to keep off bold judges. Justice Shelat, Justice Hegde and Justice Grover had taken a particular view in Kesavananda and Justice Khanna had given a dissenting judgment in the ADM Jabalpur case; and they were superseded. That was a threat to the independence of judiciary..If the seniority rule is followed, it will ensure that there is no ‘pick and choose’ by the body appointing the judges, even if it is the JAC. It is a neutral method to ensure that the independence of the judiciary is not compromised..B&B: But don’t you think that it is affecting the administrative consistency or uniformity in the Supreme Court. .KV Viswanathan: Yes. Fragmented tenures may go against consistency but there is a way to get over it. Since the line up is clear, if the incumbent Chief Justice takes the future Chief Justices into confidence while enforcing any administrative measure, consistency can be maintained. And it must be said to the credit of the present Chief Justice that in a very short span, path breaking reforms have been brought about. So, ultimately, it depends on the individual and has got nothing to do with the tenure..B&B: Do you agree with the 365 day work policy that the current Chief Justice has recommended?.KV Viswanathan: I think we should give it a serious thought. What the CJI is saying is that ‘it is a public utility’. The CJI is not saying that every lawyer should work every day. He is not saying that the same judge should work for twenty-four hours. He is suggesting that the infrastructure should be rotated and that man power should be brought in..I don’t agree with the theory that it will cause matrimonial problems for lawyers because a lawyer need not work every day if he does not want to. He can work five days a week. Let other lawyers who want to work go and work. The infrastructure needs to be used..B&B: Most of the Supreme Court’s time is spent on deciding commercial matters, environmental matters and appeals from High Courts. A regular Constitution Bench sits only once in a while. Don’t you think that the Supreme Court is not doing justice to its role as a Constitutional Court? .KV Viswanathan: As regards commercial cases, there is a statutory appeal from many tribunals – for example Electricity Tribunal, Securities Appellate Tribunal, Telecom Appellate Tribunal, National Green Tribunal etc. Once the tribunalisation set in and statutory appeals were provided, Supreme Court has become the appellate court..But for the last one year, to the credit of the former Chief Justice and the present Chief Justice there has been a continuous Constitution Bench to hear matters of Constitutional importance. So, I think we are seeing Supreme Court as a Constitutional court and this trend has to continue..In a country like ours, we can’t eliminate cases because we are a large country and individual disputes are bound to come to the apex court. If the apex court finds that the judgment of the High court is not satisfactory, it is bound to render justice. We can’t compare ourselves with the United States where the ground realities are different. We are in a different setup. Further, compared to the overall pendency, the pendency in the Supreme Court is under control and I think steps are being taken [to improve the situation]..B&B: You had a short stint as an Additional Solicitor General. Could you tell us a bit about that experience?.KV Viswanathan: I had a nine-month stint as an Additional Solicitor General, and I must tell you that I thoroughly enjoyed it. It was a pleasant surprise to receive a call from the then Law Minister Kapil Sibal, asking me to take it up and I want to publicly thank him for that opportunity. I had a lot of misconceptions about the office and I took time to decide. But when I took it up, I found that there were number of matters in which I could contribute..I shared an excellent working relationship with other law officers, especially Attorney General (AG) Goolam Vahanvati, who gave me three Constitution Bench matters to argue. The AG gave me choice cases and the discretion to return routine cases. Working with Mr. Vahanvati was a very good experience..There is also a large volume of opinion work which comes to an ASG where you filter cases out. The Central Agency marks files to you to opine on whether a Special Leave Petition should be filed or not. I think that is where a law officer can do a lot of service. Wherever we feel that the case is not worth going to Supreme Court, we would write a three page opinion as to why it should not be filed. That not only renders justice to the litigant who has been fighting the government, but also helps prevent accumulation of unnecessary cases in the Supreme Court..Overall it was a learning experience, and since it was for nine months, I call it an LLM experience..B&B: You have this knack of insisting on your point without irritating the judge. .KV Viswanathan: I saw an interview of Senior Advocate Harish Salve in which he said that a lawyer should not be dogmatic in his presentation. He should not only say what he wants to say but he must also have a pulse for what the judge would want to hear. I think that is a million dollar advice. Many times I forget it while arguing but whenever I remember it, I try to implement it..I saw an interview of Senior Advocate Harish Salve in which he said that a lawyer should not be dogmatic in his presentation. He should not only say what he wants to say but he must also have a pulse for what the judge would want to hear.Million Dollar advice.B&B: What are your views about lawyers advertising?.KV Viswanathan: The traditional view is that it should be through word of mouth that a client should get to know a lawyer. But now the trend is changing. There is a view that the clients need to know what a lawyer is good at. In England, the Chambers & Partners directory will have details about lawyers including a grading of the lawyer and in which branch he is good at. As information for the client, it does serve a purpose..But if the advertisement is by the lawyer himself, then you may have to draw a line and perhaps confine the “informing part” to independent bodies that run directories or legal websites. That way the client stays informed and at the same time the lawyer is not pushing only for making money. So we need to strike a balance..B&B: Any changes that you would like to see in the Supreme Court?.KV Viswanathan: I believe that if miscellaneous days are shifted to Mondays and Tuesdays with the 201 series of final hearing on both the days, lawyers will be able to prepare well on Saturdays and Sundays and the judges will also get time to read cases..Further, a separate commercial court in the Supreme Court for statutory appeals with a higher court fee would be a welcome move. Since those matters involve companies as litigants, they would be able to afford a higher court fee. Also, if the working time is stretched to 4:30 on the final hearing days, I think we will make better progress..B&B: Interests other than law?.KV Viswanathan: I follow most sport and read non fiction. I like travelling with family and friends. Lawyers need not only court-craft but also “Home-Craft.” I try and keep track of cricket scores, including Ranji trophy scores over internet. I like to track young players from different States and I keep a tab on whether they are picked up for the country; not that I can do anything about it..I follow chess. I am a huge fan of Viswanathan Anand, not only because he is my namesake, but because he has excelled in a cerebral sport played in over 150 countries. I hope and pray that he regains his world chess title from the Norwegian genius Magnus Carlsen this November. I hit the gym almost every day, but the problem is I need to tell people that I actually go to the gym!