“I don’t think the Court can guarantee a corruption-free bureaucracy. This judgment is the first step towards changing institutional culture.” – Advocate Menaka Guruswamy

The Supreme Court recently gave a landmark judgment in TSR Subramanian and Ors v. Union of India, directing, amongst other things, that the Union and state governments ensure that bureuacrats be given a fixed tenure in their postings and that they should not be given verbal orders. The court also directed that independent Civil Service Boards (CSB) be constituted within three months both at the Central and state levels for the management of transfers, postings, inquiries, process of promotion, reward, punishment and disciplinary matters..Bar & Bench speaks with Menaka Guruswamy, the lawyer behind this Supreme Court decision on bureaucratic reforms. Menaka is a graduate of National Law School of India University, Bangalore. She was a Rhodes scholar and a Gammon Fellow at Harvard Law School..Excerpts from the interview:.Bar & Bench: What was your reaction once the judgment was pronounced in the court?.Menaka Guruswamy: Relief! Litigation is a long process and this case took two and a half years. For a big PIL, this was a very short time. What is particularly important about PILs and big constitutional litigation is that it is a team effort and we had a wonderful team. Senior Advocate KK Venugopal, Nikhil Nayyar who is the Solicitor and my colleagues from my chamber Bipin Aspatwar, Raeesa Vakil and Manu Chaturvedi. This was mammoth effort on the part of so many people who, I think, have been generous with their time and their efforts. And our clients also; I would sit in the room and ask, “What kind of brief would you like”. And they would give a history of governance in contemporary India. We would sit there listening to these stories of the administration of India..Nikhil’s clerks and juniors had a mammoth task to do – look at this case where there are 30 parties – the various States and the Union of India, you have to serve each person and every State files a response, you have to put a rejoinder in place..The point I would like to make is that relief in big Constitution law cases is always a result of teamwork. We had a wonderful team of young and older lawyers. I think it is a tremendous credit because when you are drafting counter affidavits for 30 States you need intelligent manpower. In many ways, that is often the reason why PILs are not able to push back because you have a labyrinth of States coming at you and you not only have to withstand that and withstand the adjournments and the time it takes but you also have to get the smaller replies in place. You have to file the responses, you have to break them down and you have to appreciate the case law..B&B: What was the major challenge?.Menaka: When we first started thinking through this litigation we were confronted with massive amount of information because we had 83 people who are experts in the area. The challenge was to translate that knowledge into simple actionable legal claims for which an immensely overburdened court system will grant relief. The prayers were basically culled from committee reports and the committee reports were mentioned in the petition, so as to make it clear that this is not our genius. This is something that every State appointed committee has recommended in varying forms..B&B: What are the practical difficulties in implementing this judgment?.Menaka: I think there are going to be a couple of issues. One is, you would probably find some resistance in the political executive. Two, I think there will be issues with regard to the Civil Service Board. There will be concerns about the constitution of the Boards and the composition of the Boards. This will vary between the Centre and the States..We need to think about a more detailed system about how we are going to have written instructions. That is also going to take a cultural change within the bureaucracy. I think eventually this judgment is the first step towards changing institutional culture. So from tomorrow are there going to be no oral instructions? I don’t think so. Are we not going to have problems with the Boards? Of course we will. Are we going to have fixed tenure where an X officer will never be transferred? I don’t think so..But I think there are two very important things the Court has done. One, the court has taken that first big step and part of it will be tangible in terms of the reliefs that were given but part of it is also the symbolic value of the Court’s decision. In many ways what the court does with decisions like this is that it changes the terms of the conversation..B&B: Why do you think the Committee Reports were not implemented in the first place? Why do they just become stack of papers?.Menaka: I think it is fascinating to me that this case has got so much attention. That in many ways also means that we do not pay attention to Committee Reports. We only pay attention when a court case is reported on the first page of a newspaper. I think Justice Radhakrishnan has written a very fine judgment. He has located it in the committee reports and he has cited them, footnoted them and extracted from them; and that is much of what the 40 odd page judgment does. The Hota Committee Report (2004) and Santhanam Committee Report (1962) are such good reports. Why are we not paying attention to these reports?.These are people who are experts in the area. What is the purpose when those committees are constituted and those recommendations are given after much work? It is not a one-week process but such recommendations are arrived at after much work. So in this Constitutional democracy, why do we not pay attention to expert reports that the state itself constituted?.B&B: What about the constitution of the Civil Services Board? What about the composition of Civil Services Board?.Menaka: The Board is going to have serving bureaucrats because the Court has been very clear that they are not going to have retired officers; but the Court has also been clear that it will have experts in various disciplines coming together. I have heard critics of it saying that, “Well it is the same bureaucrats, how do you know whether they are going to be clean or not?” I don’t know that. While creating bodies from within the existing structures, you have to fundamentally be an optimist. You have to believe that institutions will, if there are enough checks and balances and if there is enough insulation, eventually throw up good people and that is all we can hope for. I don’t think the Court can guarantee a corruption free bureaucracy or a corruption free executive. But you are certainly right. I think the composition of these Boards is going to be important and I certainly think some of these Boards are going to be better than others..I think it is also time that people of this country be more involved in debates around public administration so that if you are confronted with a situation that is patently opposed to the law, you will in fact do something about it. I don’t believe that court has all the answers in this case. I don’t think that my clients believe that this case was going to provide all the answers and I think cases like this one are about first steps. This is a big first step in the area of public administration and governance..B&B: Thoughts on the relatively short time taken to deliver this judgment?.Menaka: I think for a big Constitutional rights case of this magnitude, two and half years is nothing. This is very much an over burdened court system. Last year, the Supreme Court disposed of over 70,000 cases. When I was younger, I would get frustrated at how long things used to take and the repeated adjournments. You need to look at the macro issue..We started drafting the petition a good 5 or 6 months before we filed it and it took 20 – 30 cuts. Many people chipped in, colleagues from within the chamber, colleagues from outside the chamber. We ended up having a conversation with Fali Nariman and he told us that the reliefs have to be specific and simple. So, picking simple, important reliefs as a lawyer was very interesting. We also had thoughtful conversation with Raju Ramachandran..B&B: Was KK Venugopal your first choice as arguing counsel for the case?.Menaka: Yes. Of course, many lawyers were very generous with their time, conversations, advice; So much of what you end up asking for in court and what you end up filing is also about the conversations you have and the conversations that you should have with colleagues at the Bar. The law should be and in many ways is a collegial profession and people were very generous; my colleagues, my seniors at the Bar were so generous with their time..I am very lucky to litigate and work in a court where we still have lawyers like KK Venugopal, Ashok Desai and Fali Nariman. These are lawyers with great caliber..My first internship when I was 19 years old was with Ashok Desai.. He taught me the virtue of patience in long litigations, not to get either upset or overjoyed and to maintain a certain balance. It is very important for litigation to have that because sometimes the outcomes are unexpected. He also taught me how to think of Constitution claims..B&B: How was it working with the Attorney General?.Menaka: It was my first job. I will tell you it was a different time. The first case we worked on was Hawala, and then we worked on parliamentary privilege – the alleged bribing of Jharkand MPs. It was amazing. I was 22, I just finished law school and I was padding around in this office, where we were doing big Constitutional litigation; and so in many ways I think it shaped my idea of how to litigate and what are the kinds of claims that you must be able to think about. And Ashok Desai would say it is all downhill from here (in terms of the array of cases that come to the AGs office) and it is probably true. He is one of the most even-tempered persons you can meet, a lawyer of great craft and learning and a human being with diverse interests..At the office of Attorney General the area of work is extraordinary because, one, I think it is the scale of the work; certainly these are biggest cases in the country at any time. But two, the Attorney General also has to be very strategic because he is defending the State and to defend the State is particularly hard because one – you have to take an array of interests into account, two – in many ways it is always easier to come at the State, to challenge the State than is to defend it with craft and grace. It is always easier to point out a lacuna in legislation than to defend the legislation, even though we expect the Court to presume on the Constitutionality of legislation nonetheless. So, I worked in an office where the Attorney General was very skilled lawyer with high quality craft. I was there for a year and a half and then I went to study..B&B: You also worked in the US. Did you always want to come back to India and litigate?.Menaka: I ended up staying a little longer than I thought. I worked at a law firm in New York and then I taught at NYU Law School. When I returned, I went back to Ashok Desai’s chamber and worked there for another two and a half years. I came back quite late, when I was 31 years old. And my first task was carrying files at the age of 31 or 32 and I had just finished a job teaching 80 kids where I was an assistant professor! It was pretty funny, because you don’t know where it is going to go..What is interesting about litigation is all the stories you hear in the courtroom, whenever you represent a client, this is a slice of your life in your country and you are interpreting it. It is very, very simple. Whether it is a ‘commercial law’ client or a retired bureaucrat who wants to change the system, or a client you are defending in a CBI courtroom, it is just fascinating because one – these stories are stories that happen in your society and two, you see judges who work hard and try to interpret those stories and apply them to the law and you in turn you have to be an advocate to tell a story that is persuasive..B&B: If a lawyer has to choose a senior to work with, what advice would you offer?.Menaka: I think when young people make choices on the basis of so many things – who is influential or who has got a lot of work or who is making lot of money. I would say that you need to pick a Senior who has craft, who has values, who has a genuine interest and a genuine love for the law because actually that is what a good senior does for a junior – gives you a love for the law..B&B: The percentage of law school students getting into litigation is really small, so what do you have to say on that?.Menaka: I think in the last decade and a half, two things have changed – one you have the presence of large law firms, two – you have the establishment and growth of the 5 year law program. So in the last 15-20 years, legal education has also changed dramatically. It is not just people whose parents are lawyers who are becoming lawyers, that is a big difference today. So one of the things the 5 year program has done is you have an eclectic array of young people coming into the legal class room, coming out and becoming lawyers, whether in a law firm or a court room, doesn’t matter. So the stock has changed..I think with litigation, we do have obligations as folks who have their own practices, to attempt to create better wages so you have to make it possible in some ways for a young person who does not come from a well to do family to conceive for a career in litigation. In some ways that has to change, but that is also hard. Because initially when you set up litigation practices, it is difficult to build clientel, it is difficult to get a consistent supply of money. But having said that, I also believe that the challenge is a different one. My concern is a different concern; the question that we need to ask is – Is the Bar professional? Are litigation chambers egalitarian? Do men and women have equal opportunities, whether in a litigation space or a law firm? Are we teaching the young people, are we giving them craft? I think that is all that counts, eventually things will equalize, you will have more people getting into litigation, you will have good people going to firms as you already do and you will have good people becoming law professors and you need those 3 communities to work together. Women have to believe that litigation is a worthwhile professional choice and for that we have to address the inequalities in the profession..B&B: As a woman, what are the inequalities you see in the legal profession? Do you see a change of attitude towards women lawyers?.Menaka: You do have many women lawyers. But I think my peers at the Bar have a serious question, why do the women leave after a first few years at the Bar? Some of it is about the society we live in, power imbalances, families and so on but some of it is also is that women are doing better at firms because firms are creating those environments where women feel valued, where presumably women have less issue of discrimination and so on. So, in the context of litigation, I think we need to have working conditions, which are more equitable. It is very heartening that our Supreme Court has designated 3 women seniors. We need a lot more and those are the things that will inspire young women. Some other issues that women face are unequal power relationships, harassment. I am optimistic about legal profession; I am optimistic about the courtroom..Interestingly, the first woman who actually studied for a law degree at Oxford was an Indian. Her name was Cornelia Sorabji. She finished from Oxford and came back to India, but it it took her 20 years to be allowed to be admitted to the Bar. I wonder where we would be today if Cornelia had not persisted for those 20 years. So I think it’s a wonderful time for a young person – male or female to be a lawyer of any sort..B&B: What are your future plans/goal?.Menaka: I hope that I will get the opportunity to do a lot of interesting work and to be able to argue interesting cases. That is the goal – interesting work, eclectic practice, good people to work with, good people to learn from and to have interesting legal conversations in the courtroom and outside and to build craft.