Judges and lawyers don't own the Constitution, citizens do: NL Rajah

Senior Advocate NL Rajah began his practice at the Madras High Court in 1986 under the legendary lawyer S Govind Swaminadhan. A name to reckon with in commercial litigation, Rajah is also a history enthusiast who has edited a book on the Madras High Court's past, and curates a novel bi-monthly heritage walk inside the High Court campus..He is also the co-founder of the Nani Palkhivala Arbitration Centre, and a member of the High Court Heritage Committee and its Arbitration Centre. In this interview with Bar and Bench's Ayesha Arvind, the designated Senior Advocate speaks about the justice delivery system, how young lawyers without any support in the profession can build a practice, the need to preserve history without distortion, and more..Ayesha Arvind (AA): How did you decide to become a lawyer?.NL Rajah (NLR): Nobody in my family is a practicing advocate. Although my great grandfather and father studied law, they never practiced. I think I was always fascinated by law. In school, I used to be good at public speaking, which continued in law college too. I applied, and much to my own surprise, I got selected to the Dr Ambedkar Law College (Madras Law College).I joined the Law College in 1983. A family friend who was also close to Mr S Govind Swaminadhan (former Advocate General of Tamil Nadu) introduced me to him. So, with Mr Swaminadhan’s permission, I began to visit his office after classes. Once I began visiting his office and saw up close what this profession was all about, I knew I had made the right decision by studying law..AA: Were you clear from the beginning itself that you wanted to do commercial litigation? .NLR: Justice Mr V Ramasubramanian (former Supreme Court judge) was three or four years my senior, but we used to interact quite a bit in the early days of my practice. He used to say - never try to make an entry into an area of legal practice that is already overcrowded with stalwarts unless you come from a family of advocates or are married into one. Because, for you to make a dent in those areas will be very difficult. When I started my practice, there were several well-known names in the original side, the appellate side, the labour side, and on the criminal side as well. One could make a mark of course, but it was going to take a long time. So, the practice that we adopted was to look for emerging areas in law and try to build a practice in those areas.Once the Tamil Nadu Administrative Tribunal was established, Justice Ramasubramanian began practicing there in addition to his practice in the High Court. Both of us also used to go to the consumer fora quite frequently. These were the emerging specialties in those days. The Consumer Protection Act was also passed in the year that I graduated from the Law College and many people did not know what was happening in that field. And then the special tribunals were created to implement these laws.It is not possible for established people in the profession to be able to make time to be away from their regular practice in court and invest a lot of time in these emerging tribunals. So, that gives an instant advantage to someone young trying to establish a practice there.I started writing a lot about consumer law. I co-authored a book on Consumer Protection with Justice DP Wadhwa, a retired judge of the Supreme Court, and this book is now considered as a standard reference book in consumer law.In 1996, the Arbitration and Conciliation Act was passed and I thought it was a good opportunity to get involved in the intricacies of that emerging law. Though arbitration law itself was quite ancient, its emerging dimensions and the opportunities it presented were fascinating. I got involved extensively in the field of arbitration. Mr Arvind Datar and I, along with others who were avid fans of Mr Nani Palkhivala, founded the Nani Palkhivala Arbitration Centre. We were also part of the Law Commission special committee headed by Justice AP Shah to bring out the 246th report on amendments to the arbitration law, much of which was accepted and implemented through the 2015 amendments to the law. I was also a consultee with the Justice BN Srikrishna Committee that sought to improve the climate for institutional arbitration in India. In 2003, the Electricity Act 2003 came into effect and I got interested in that too.So for youngsters who do not have support in the profession, this is one advisable path to follow..AA: What are the areas in which young lawyers today can look at to build their practice?.NLR: Today, there are tribunals that are established to implement the Goods and Services Tax (GST) laws. The Insolvency and Bankruptcy Code (IBC) is another emerging area. You have the Prevention of Money Laundering Act (PMLA) cases too. Cybercrimes and data protection are interesting emerging areas to work on. For a young advocate to get noticed in that field, it is advisable for them to first learn the law completely. Start writing about it, start giving talks and also getting involved in the application of the law. Then, of course, there are the three new criminal laws that they can explore.All these are all very legitimate means for young advocates to build their practice..AA: What are your thoughts on the current arbitration ecosystem in India? The Chief Justice of India recently said that it is time for the country to become a hub for commercial arbitration..NLR : Yes, that is certainly possible, but it will need a lot of preparation. The country needs to prepare an enabling ecosystem for this to happen. Unfortunately, the Justice Sri Krishna Committee report is yet to be implemented fully, but I think with the freshly elected government in place now, it should happen pretty soon. There has to be a system of recognising arbitral institutions properly and regulating them. If all of this is done, then India certainly can become a hub for commercial arbitration, especially because of the price advantage that the country has. Engaging a lawyer from India, or shifting all the legal work to India, can be a huge incentive, but for that we must prepare the ground. .At present, we have not standardised much of the arbitration procedure. We have not set a standard for arbitrators and arbitral institutions. Most of the arbitration that happens in the country is ad hoc arbitration. These are the issues on which the regime has to work.Between not regulating and sensible regulation, there is a huge area which needs to be occupied and a balance to be struck. One must not overly regulate and kill a regime, nor must one leave it absolutely open-ended, which is what is happening now. There must be a sensible mix.Mr TK Vishwanathan's report submitted recently is again a very useful road map to pursue..AA: You have often spoken about making the Constitution a people’s document..NLR: When you talk about the Constitution in India, the general impression across the country is that it is a legal document and the common man thinks that he does not have anything to do with it. The common man needs to understand that the Constitution is all about his rights, duties and about everything that happens in his life on a day-to-day basis. For him to understand that book and its impact on his life, there must be centres all over the country that propagate the values and meaning of this book..In America, for example, you have the Constitution Centre at Washington. We must have such a Centre that talks about Dr Ambedkar, about Palkhivala, the parliamentary debates and everything else that led to the making of our Constitution and the challenges it has faced in its life. Such a Centre should tell the citizens how the Constitution is a document that brings everybody together and how it is meant to make the aspirations of the people of this country come true. This history of evolution of the document and how it has been applied is actually very fascinating. All of this, however, is not readily available for the consumption of the common man.It is only we advocates and judges who talk about the Constitution. It is as if we own the document. The Constitution is not a document of promise for the lawyers and the judges, but is a document of promise for the people of the country.In fact, Mr Datar and I had actually prepared and submitted a formal blue print plan for the Constitution Centre. We had also said that everything “national” need not be in Delhi and we can have a Centre here in Chennai where, everyday, children from schools and colleges visit and learn about how this book is relevant to their lives.The Constitution must not become a document of convenience. It is the bill of rights, and citizens must also know the duties that the Constitution imposes upon them. Advocates and judges must not be left to be the high priests of a scripture called the Constitution of India. That is not an acceptable way for Constitutional Law to grow.I don't think many school students have ever stepped into a court to learn about the legal system. That is why I was very surprised and also very happy when schools started sending students for my Heritage Walk at the Madras High Court. Unfortunately, right now, the Madras High Court is the only High Court in the country that is doing that and that is not something that I am happy about..AA: What do you think about the way courts function at present and how accessible are they for a common citizen?.NLR: Before the British came to India, ours was a highly decentralised system and, hence, much of justice dispensation happened at the panchayat level. The British, however, completely inverted this pyramid.A good administrative system is a pyramid with one per cent on top and 99 per cent working below. Our legal systems were like that and enforcement was very easy. And this justice dispensation was further divided into different categories.For example, the traders had a different system working for them, which used to be called ‘shreni’ and under this system, they were required to follow ethical trade practices. The craftsmen could protect the copyrights to their artisanal work. That is how evolved the system was.Dr Ambedkar was right that in a way, there was also a level of inequity in these laws. However, by and large, the system was working well. It did deliver justice. I would not say that it was 100% equitable. It needed to be refined and overhauled and that is what the Constitution did.Today, by and large, we don't have a problem of lack of equity in most of our laws. However, the problem we face today is the effective implementation of these laws..AA: What can be done for more effective implementation of laws?.NLR: In the first place, I think there has to be a time-bound common minimum program. We must draw up a road map. As Mr Palkhivala used to say, we are in a situation where not only have we lost the way, but we have also lost the map. So, we don't have a map that will tell us how we proceed. And for that to happen, there have to be frequent meetings between the judiciary and the government and other stakeholders, including representatives of the Bar, to draw up a common agenda.Also, we must realise that larger objectives are never met when just one department attends to it. It requires all stakeholders to work together..That is why I am impressed by the methodology deployed by Justice Sanjay Kishan Kaul (former Madras High Court Chief Justice and Supreme Court judge). His way of dealing with PILs was a classic example of the progress in finding solutions that can be made if all parties involved work together.He used to say that if the judiciary simply passes an order directing the government to do something, the government is bound to resist it. What is happening to the Collegium system now is a classic example. So, the judiciary must ensure that the government has a sense of ownership of a particular decision that it takes.What Justice Kaul would do in bona fide PILs was to draw attention to serious problems in governance and then he would keep sending the matter back to the government asking them to decide. He would point out here is the responsiblity, here is the deficiency in the system, and ask the government to come back and place its decision before the court. Once the government does that, it owns its decisions and is bound to act on it.Otherwise, what you will have is only what in law we call a paper decree..AA: Tell us about your book on the Madras High Court's history and the High Court Heritage Walk that you curate..NLR: I have always had a fascination for history. During my school days, the one person who never had any complaints about me was my history teacher. I keep reading a lot of books relating to history. As we were approaching the 150th year of the Madras High Court, I began looking around to see if anyone was going to write about the history of the High Court. Since no one was making any efforts, except the High Court itself, which brought out a book on the occasion, I thought let me do it. Of course, I roped in a whole lot of people because my knowledge was limited. So, I got people who are all stalwarts in their own realms to share what they knew of the Court and its history, and all of them very kindly agreed to write and contribute chapters to the book.Once I got interested, I had so much information about the Court, which I wanted to keep sharing. I did not want people to forget about this great institution’s legacy and so I came up with the idea of the Madras High Court Heritage Walk.I started in 2012. Then Chief Justice RK Agrawal immediately agreed to the idea. I also had support from several other lawyers and judges. My public outreach is very limited because I do not advertise on any of the social media platforms. Yet, I received an excellent response. I already have a lot of assistance now from my colleagues, and I am hopeful that the juniors at the Bar will it carry forward..AA: Why is it important to preserve history?.NLR: One of the things that is very important to a human being is his sense of identity. Next to shelter, food, clothes to wear etc, the most important aspect of an individual is his identity, and that identity is shaped by history.And when distorted versions of history are presented to people, their identities can get skewed. So, you must present history as a complete narrative. That is what makes humans realise that they are part of a larger whole and that they need to act cohesively towards the goal of peaceful coexistence..AA: You are a member of the Madras Bar Association, the oldest lawyers' body at the Madras High Court. What is the role of such associations in current times?.NLR: The Madras Bar Association basically started as a preserve for the English barristers and for a long time it continued to be that. However, all the freedom fighters and those who were interested in the welfare of the country were a part of the Madras High Court Advocates Association (MHAA). It was called the Madras High Court Vakils Association and it has had the privilege of having plenty of stalwarts as its members as also freedom fighters.These associations and many others like them all over the State represent not only the interest of the lawyers or its members, but also the interest of the law abiding society. It is among their responsibilities, under the guidance of Bar Council of Tamil Nadu and Puducherry, to help evolve the law so that it can keep pace with the requirements of a developing society.If you read the history of the Madras High Court, you will observe that Chief Justices of the Supreme Court of Madras, as it was called then, used to be very keen on having a strong and independent Bar. Even when the British were ruling us, the judges were very clear that the Bar has to be strong and independent. They have also recorded that it is impossible to have a strong and independent Bar unless it is financially healthy. So, what they used to do in those days, was to appoint advocates as commissioners and receivers. When an English judge or judge in free independent India used to spot young talent, he would immediately appoint them as a receiver in the court or as a commissioner so in that way the financial fortunes of youngsters were to some extent at least addressed.So, it is understandable that all these associations are concentrating on the financial betterment of advocates. However, they must look beyond that.I would definitely rank the quality of lawyers, the juniors here, far higher than in many other courts. It is not because I am from here that I am saying this but I definitely mean it. These are very encouraging signs. However, what I am saying is that for anything to grow, you have to have an enabling atmosphere, which becomes the responsibility of these associations to provide, so that the profession grows and the youngsters grow..AA: The system of judicial appointments came up during an awards ceremony organised by your former senior's juniors, where Justices Akil Kureshi and Justice Rohinton Nariman spoke about the former's non-elevation to the Supreme Court. What is your take on that?.NLR: I must state at the outset that I am a very strong critic of the National Judicial Appointments Committee (NJAC) judgment. If the NJAC had its shortcomings, the way forward was to read down the provisions to make it workable. In a democracy, you cannot completely ignore the mandate of the people as represented by its elected representatives. Especially by a constitutional court which has been established specifically to protect democratic values. It is simply not workable.I agree, there are chances of some very bright lawyers being considered by the Collegium under the present system, and the presumption is that it might not have happened under the earlier system. This again is a bit of a presumption given the fact that several stalwarts like VR Krishna Iyer were appointed under the earlier system.How will you make this Collegium system work? Because, under the Constitution of India, the President of India is the appointing authority and is supposed to act on the recommendations and advice of the Council of Ministers. How do you make a court decision binding on a Council of Ministers and the President of India who are not parties to a litigation? And even if you do, how do you ensure compliance? These are tricky issues. The workings of the Collegium system have thrown up several such problems which I feel have to be addressed by a fresh legislation that addresses the concerns expressed in the NJAC judgment..AA: What other interests do you have apart from law and history?.NLR: The law is a jealous mistress. There is no doubt about that. However, she does make allowances for legitimate diversions.It was about the time that I joined the profession that my boss SGS and Mr Sriram Panchu started the Consumer Action Group. Mr Panchu got me involved in its functions and I learnt a lot about how public law functioned or did not function. I also got a chance to get associated with Padma Vibhushan Dr V Shantha and Bharat Ratna Dr MS Swaminathan and through them, got involved in social work.I also make time for my favourite sport, badminton.I am interested in theatre and I act in plays staged by the Madras Players, one of India’s oldest theatre groups.