It is important for every institution to undergo a churning: Senior Advocate Sidharth Luthra [Part II]

Aditya AK February 3 2019

In the second part of the interview, Senior Advocate Sidharth Luthra discusses his stint as ASG, the perceived crisis of the Judiciary, the dire need for police reform in India, and more.

Not too long ago, Sidharth Luthra had served as Additional Solicitor General of India. The experience exposed him to a wide variety of different topics of law.

“It was a great experience; I learnt a lot. I was exposed to areas of law that I would never have dealt with otherwise. The government is the greatest litigator. In the initial months, I was given small matters where there is no real law to be argued. At first blush, it seemed frustrating that I was brought in to do criminal matters, but I wasn’t getting those. But I took that as a challenge and learned a lot about service law, military law, administrative law, etc. Today, I get briefed in those areas of law only because I had that advantage.”

Read: Every young lawyer must start with original side work: Senior Advocate Sidharth Luthra (Part I)

As a representative of the government in the courts, did he face pressure to pursue cases that lacked merit?

“I was lucky as a law officer that I did not feel any pressure. For two reasons – one, I am not a political guy, despite what people believe. I have friends in different parties, but I am apolitical. Being an outsider, nobody had a claim on me.

Secondly, I was very clear that my personal reputation was very important. The government will give instructions, and if the instructions are relevant and important, you must abide by them. If they are illogical, you must reason with the government and urge them to take a balanced stand. While on most matters, one goes by what is stated in the file, on certain issues, I found myself in a situation where I needed to use discretion.

It is the law officer’s role to know that he is a law officer not only for the government of India, but also for the people of India. You have to rise above the narrow confines, without compromising the interests of the government.

There are other cases where government has a different viewpoint from that of the courts. You must, as a law officer, explain to the government what the legal position is.”

He refers to one such instance in the Subramanian Swamy case, where Section 6A of the Delhi Special Police Establishment Act was challenged.

S. 6A of DSPE Act is unconstitutional – Supreme Court

Subramanian Swamy vs Director, CBI: The Supreme Court yesterday struck down Section 6A(1) (a) and Section 6A(1) (b) of the Delhi Special Police Establishment Act, 1946 (Act) as unconstitutional.

“I was appearing for the CBI. I had no role, as the CBI sent a mandate saying that I don’t have to argue. While I was sitting in Court, Justice RM Lodha asked me to respond. I told I had nothing to say, as the Union was defending the legislation. He insisted and asked me for my viewpoint. So, I told him my view, and he asked me to get some answers from the CBI. I went back to Court with the answers to the points, and they both became the basis of the judgment. The questions that were put to me are partially reproduced in the judgment.

As a law officer, even though you are representing the government, you have to keep in mind the human rights of those you are opposing. It is a fine line to be drawn, but as long as you are true to your brief and to the ethics of the profession, you will do well.”

The conversation then moves on to pendency of cases at the Supreme Court. As Luthra states, it is a multi-pronged issue.

“Pendency is a problem, but keep one thing in mind.  The Supreme Court is not a Court that needs to only decide matters expeditiously. It must be expeditious, but it must also settle the issue. The failure to settle the law when matters come to the Supreme Court sometimes leads to greater pendency. Today, on most issues, you can get precedents from the Supreme Court both ways.

PILs

“The failure to settle the law when matters come to the Supreme Court sometimes leads to greater pendency.”

In the context of vicarious liability, there are certain judgments that went a certain way before SMS Pharmaceuticals Ltd v. Neeta Bhalla in 2005. Then they went the other way, and now they have gone back to the original ruling. In the last fifteen years, the issue has been decided differently by different benches. Perhaps if the matter had gone before a five-judge bench and been settled once and for all, it would have brought clarity.

For areas where the Court needs to settle an issue, these two-judge and three-judge benches are not enough. There must be an almost permanent Constitution Bench to decide these issues, especially when different benches have decided differently.”

So, is a rethink on how the Supreme Court functions the need of the hour?

“I have always argued that the Supreme Court needs to be a Constitutional Court. You can have a Court of Appeals with Regional Benches, which will provide access to justice. Persons from the North-East, from far down South, from West India, cannot afford access to the Supreme Court. In their reality, the highest court is the High Court or the Sessions Court. That needs to change. It can only change when there is an intermediate appellate court to which the ordinary litigant has access.”

On the topic of the Supreme Court, he speaks the chain of events that followed last year’s Press Conference held by the four senior-most judges. What are the takeaways from this period, which has been termed as a “crisis” for the Judiciary?

“The recent chain of events is a churning in the Court. It happens behind closed doors, and sometimes it happens publicly. It is important for churning to happen once in a while, because we will emerge stronger from it. Every institution has institutional memory and legacy. When you look back at the ‘70s, you had a similar churning, where there were supersessions, and later the Three Judges Cases.

“If the current churning leads to a higher degree of quality – in terms of appointments, working and transparency – we would be a much more satisfied society.”

As long as the challenge within the Court is on philosophical grounds, on the interpretation of the law, it is a good thing. It should not be about individual personalities. I think it is very important to improve every system, in terms of transparency, accountability and access. The Court provides a service of justice, and in providing that service, the Courts must aspire to higher degrees of quality.

If the current churning leads to a higher degree of quality – in terms of appointments, working and transparency – we would be a much more satisfied society. Every well-meaning person in this country wants confidence in their institutions, wants to know that institutions such as the courts are beyond reproach.”

With things coming to a boil at the Apex Court, an impeachment motion was filed against then CJI Dipak Misra. Having been part of two instances where impeachment of sitting judges (Justice Soumitra Sen and Justice SK Gangele) was sought, Luthra discusses the broader questions regarding the process of removal of judges.

“Justice SK Gangele is the only one who has got off, and I believe, on good grounds, despite all the hype that surrounded his impeachment.

Justice Sen slipped through the cracks because we let him do so. Unfortunately, the law permits judges to resign before the proceedings can take place. In his case, it got passed in the Rajya Sabha and because it did not get passed in the Lok Sabha fast enough, he resigned with all the benefits. I think it is unfair as it defeats the entire rationale behind the impeachment process. There needs to be an amendment to the law saying that once the Committee holds that there are negative findings against the judge, there should be no question of resigning.”

The discussion moves on to the criminal justice system and how it is perceived as being flawed. Having established himself as one of the most sought-after criminal lawyers in the country, Luthra has witnessed first-hand the conditions under which the investigating authorities work, and has long been a staunch supporter of police reforms. He offers a glimpse into the state of affairs.

Have you ever spent a day with a police officer? Do you know how many hours and how may days a week they work? It is 24/7 job, with no holidays, no family time, no facilities. A few years ago, I had to fight and struggle to get permission for 6,000 flats for subordinate police officers. They do not have accommodation.

Yes, there are problems within the police force, but they get heightened by the fact that they are working round the clock under constant pressure, without adequate rest, in the heat and dust. The workforce which should be working on investigations is primarily looking after law and order. That is not how a professional police force should work.

Police outside Patiala Court

“Yes, there are problems within the police force, but they get heightened by the fact that they are working round the clock under constant pressure, without adequate rest…”

The independence of the police is in the hands of the administration. Nobody seems to want having better trained and better paid police officers. Sometimes, the guys who apply for becoming a constable have a PhD degree, because there are no jobs. So, they take these jobs out of desperation. There are no avenues for a constable to rise through the ranks; if he is lucky, at the most he will become a sub-inspector. Imagine having a 35-year-long career and you reach just two ranks above.

There has to be a serious re-look at empowering the police, making them professional, and remunerating them adequately.”

He says that the police are not the only ones to blame for botched investigations.

“Having said that, why blame the police? What about the prosecutors? Do you know what conditions they work in? A few years ago, there was a PIL where I represented the prosecutors of Delhi, who did not have computers, research facilities, or stenographers. We eventually got two stenographers per district. There are forty prosecutors per district. And yet you expect them to perform at an optimal level?

While we keep generating laws and adding to laws, we expect the constable or the SHO to know all of them, without giving them training or adequate equipment. These are scientific investigations. So, generating laws is not the answer.”

The Courts are not immune from blame either, Luthra points out.

“Insofar as the courts are concerned, are they blameless in the decisions that we get? I have seen scores of judgments where police statements become the bases of conviction. How can you justify that? These are supposed to be trained lawyers, who have now become judges.”

It is evident that this is a subject he feels very strongly about. The passion with which he highlights these issues makes one think twice before outrightly dismissing the functioning of the players of the criminal justice system. Clearly, change is the need of the hour. And it has to start with ensuring that the stakeholders are given everything they need to do their job.

As if to inadvertently ease the tension, one of his juniors enters the cabin to ask for leave. A stern-faced Luthra, still empassioned from the last topic of discussion, shakes his head in disagreement. Then, slowly, his lips curl into a smile and he says,

“Of course.”

This may be the perfect time to ask him what he thinks about Seniors not paying juniors.

“I think it’s unfortunate that they don’t pay. It is important to be fair to your juniors and your staff. They are the ones that support your performance in court. And if they don’t get the recognition and the respect, it is an act of selfishness.”

And how does he pay his juniors? As he shuts his eyes and closes his ears, he urges me to ask the junior standing in the doorway.

The seemingly satisfied junior nods in agreement and also expresses gratitude for her Senior’s guidance. A healthy dose of laughter, it seems, is also part of the package.

Once the junior has left, Luthra looks back at what has been a long career. By his own admission, he still gets the jitters while arguing a death penalty case.

Read: Part 1 of Senior Advocate Siddharth Luthra

Perhaps if I had more awareness at the time, I would have chosen architecture. That is one regret I have. I used to write as a freelance journalist, I was an announcer for All India Radio, did some television and some sports commentary as well. I began writing a weekly column with a friend and then wrote independently.

When asked which Supreme Court cases were his most memorable, he says,

“Why is it that you guys only want to know about the cases that I did in the Supreme Court? Is there no other court in this country that is doing good work? I always say that I am a Mofussil lawyer on deputation to the Supreme Court!”

As the interview comes to a close, I ask him how he has developed his style of argument. His multi-faceted personality comes to the fore once again.

“I used to do Judo as a kid; if you are a heavy chap, you will have a slow, steady style. But if you are light and fit, you will be fast. Though I was light, I used to be slower and steadier, and that used to throw my opponents off. I would describe my style of argument as steady and balanced.”

He ends with advice for young lawyers in the profession.

“I learnt two things from my father and from Seniors like Mr. Nariman – one, always state the facts upfront, even the facts against you. Be forthright – it will gain you credibility, and respect. Secondly, state the legal position correctly as it exists, and never shy away from dealing with decisions against you.

In a world where everyone wants to get interim relief and move, it is good to be strong in your ethical principles – you may not become the most successful lawyer, financially or otherwise – but at least you sleep comfortably.”

Read Part I of the interview here.

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