One can only hope that liberal values don’t get submerged in these times of majoritarianism-In Conversation with Raju Ramachandran

Senior Advocate Raju Ramachandran has been in the legal profession for nearly four decades. Ramachandran, who joined the Bar in 1976, was designated Senior Advocate in 1996. He served as Additional Solicitor General for India from 2002 to 2004. As the Amicus Curiae in the Gujarat Riots case, the opinion rendered by Ramachandran that Narendra Modi can be prosecuted was widely debated. Ramachandran also served as the Amicus Curiae for the Supreme Court in Ajmal Kasab’s appeal..In this interview with Bar & Bench, Ramachandran speaks about his decision to take up law, reminiscences of his days as a lawyer in the Supreme Court during the emergency, his experience working with Fali Nariman and Soli Sorabjee and his take on the current trends emanating from a “majoritarian” parliament. .Bar & Bench: Why law? .Raju Ramachandran: I wanted to be a journalist and was studying Economics at St. Stephen’s with the idea that it would equip me for a career in journalism. While pursuing my studies in Economics, the Kesavananda Bharati case was being argued. The quality of legal reporting in those days was very high. So, even as a young boy of 18, I could understand the nuances of the arguments from newspaper reports and it got me very interested. I had already developed a subtle interest in law because I was doing a part time journalism course and we had a teacher for press law who had made the subject very interesting. So, I came to the Supreme Court to hear the arguments in Kesavananda Bharati. The first lawyer I ever heard in my life was Palkhivala and the second lawyer I heard was Seervai; the first Bench I saw had 13 judges on it. I immediately forgot all about journalism and decided to do law..I started my practice with the late MK Ramamurthi in 1976. He was a left wing lawyer and an ex-journalist..Bar & Bench: Kesavananda took you on a different career path. Apart from that, how do you think it has shaped our democracy?.Raju Ramachandran: As I have grown as a lawyer, I have entertained serious doubts about the correctness of the majority decision in Kesavananda Bharati. Apart from Mr. Andhyarujina, I believe I might be one of the few senior lawyers who have publicly criticised the judgment. I have held the view that it is anti-democratic. But in the context of the times in which it was rendered, it definitely served an important purpose in that it saved the country from the perils of brute majoritarianism..Bar & Bench: Do you mean to say that the judgment needs to be rethought?.Raju Ramachandran: Over the last couple of decades, I have maintained that the Kesavananda judgment – though it served a useful purpose – is Constitutionally unsound because it acts as a roadblock to the will of the people. For example, the ‘Basic Structure doctrine’ would come in the way, if we decide to switch from a Parliamentary form of government to a Presidential form of government. But in the context of the present overwhelming majority [of the ruling party in the Parliament] due to which apprehensions have been expressed about the rights of minorities, I have asked myself whether it is time to re-think my own position. Of course, that is from a purely utilitarian point of view and not from the point of view of Constitutional doctrine. From the point of view of pure Constitutional law, I still think it is a flawed judgment..Bar & Bench: You started as a lawyer in the midst of emergency. What was the general mood in the Supreme Court?.Raju Ramachandran: When I joined the Bar in 1976, the atmosphere in the [Supreme] Court was very uneasy. People would not talk openly. Mr. Nariman tells the famous story of two senior lawyers, Mr. CK Daphtary and Mr. ST Desai (one a former Attorney General and one a former High Court Chief Justice), not wanting to open up in the Bar library but staring at each other instead. Then one breaks the silence and says in Gujarati, “Chandubhai bolo” and the other one says, “Sundrelal tame bolo”. That was the kind of inhibition which even senior lawyers felt at that time. But there were some very brave lawyers like JP Goyal. He was the lawyer for Raj Narain, who had fought the election against Indira Gandhi. Goyal openly told off the then Chief Justice AN Ray, who was known to be a stooge of the ruling dispensation..Bar & Bench: What are the changes that you have seen in the profession in these forty years?.Raju Ramachandran: The Bar has grown greatly in size. So has the Bench. When I started practising in the Supreme Court, there were only four courtrooms and three law officers – the Attorney General, the Solicitor General and one Additional Solicitor General..Another major change is the democratisation of the legal profession from its earlier dynastic character. That is partly due to liberalisation because of which law firms have opened up. In many of these law firms, merit is the sole criterion [for success] as a result of which people from non – legal backgrounds have been able to find a foothold. Growth of National Law Schools has significantly improved the quality of young entrants [at the Bar]..As far as the Bench is concerned, there is one major change. When I joined the Bar, there was no talk about “corruption” of judges, at least not in the superior courts. There was the issue of bias in that some judges were considered pro-establishment and pro-government, some were considered pro-labour and anti-management etc. So, there was ideological bias, which is part of human nature. But there was no talk of ‘corruption’ in the financial sense, which we now hear about from time to time..Bar & Bench: You served as Additional Solicitor General for two years from 2002 – 2004. How was that experience?.Raju Ramachandran: I never thought that I would be a law officer during the tenure of the first NDA government because I was never known to be a supporter or sympathiser..It so happened that a vacancy arose in the team because Mr. Harish Salve resigned as the SG. The late Mr. Kirit Raval, one of the ASGs, became the SG and a vacancy arose in the ranks of ASG. Mr. Soli Sorabjee, the AG, with whom I had worked as a junior counsel in his earlier stint as the AG, sent for me and asked me to be a law officer. I told him frankly that I was not a sympathiser of the ruling dispensation and that I had recently been part of a team of lawyers which had questioned the saffronisation of text books in a case in the Supreme Court. I told him that I should not be a source of embarrassment to him to which he said, “What nonsense. I am asking you to join because of your professional competence. We need independent people.”.Once the AG recommended my name, the government accepted my name without demur. I must also say that I faced no political interference at all in my work. Mr. Arun Jaitley, who was the Union Law Minister for a part of my tenure, is an old friend of mine and my classmate in law. Not once did he pick up the phone to tell me what I should do in a particular case. And the AG, Mr. Sorabjee was a great team leader. There was great camaraderie and conviviality in our team of law officers and I would attribute that in a large measure to the leadership qualities of Mr. Sorabjee. So, I have very happy memories about my comparatively short stint of one and a half years as a law officer..And I must say that to the credit of the NDA governments, they have been far more professional in their choice of law officers than Congress-led governments..Bar & Bench: When did you set up your independent practice?.Raju Ramachandran: I became independent about three and a half years after I joined the profession. The early years were definitely tough. I supplemented my income by doing drafting work for other lawyers and by writing head notes for Supreme Court Cases. During my early years, a lot of my time was devoted to legal aid work. Justice Mukul Mudgal and I were chosen by Justice Bhagwati to man the Supreme Court Legal Aid Committee. Those were days when we were fired by idealism and we just did not bother about money. Of course, the prospects of making money were also far fewer in those ‘pre-liberalisation’ days. We struggled but we were happy..Bar & Bench: You were involved in the case relating to the impeachment of a sitting Supreme Court judge – Justice Ramaswami. Could you tell us about that experience?.Raju Ramachandran: The Justice Sawant Committee, which was constituted to probe charges against Justice Ramaswami, asked me to be the Counsel for the Committee to assist Mr. Fali Nariman who was the Senior Counsel for the Committee. It was very challenging, because the person being probed was a sitting judge and I was a young lawyer – not yet a Senior Advocate. My professional future could have been in jeopardy because there was a judge on the Bench hearing a case arising out of the proceedings who was a close friend of Justice Ramaswami’s and he had to recuse himself because a question which I put to a witness threw up his name. But that judge was magnanimous and by God’s grace, I completed the task entrusted. Now in retrospect, I feel that while the Sawant Committee came to the right conclusion about Justice Ramaswami, the allegations against him were not of “judicial” corruption but only of administrative profligacy in expenditure for the High Court on carpets, curtains for the Chief Justice’ house etc; and I can’t help feeling that this was all very minor compared to the judicial corruption which we have heard of in later years..Since I have recounted the above experience, let me also tell you something very heart-warming about Justice Ramaswami. It is a story which I would want to tell my grandchildren also – about the essential goodness of human nature. When I ceased to be a law officer many years later, I was looking for a temporary accommodation to house my office. I was told by the intermediary about an apartment which Justice Ramaswami owned in Delhi which was available for rent..I was sure that Justice Ramaswami would not have any objection. Sure enough, when the intermediary found out from Justice Ramaswami, he asked him to tell me to telephone him which I did. He blessed me and said, “Please take the house”. Later, when I was vacating the apartment, Justice Ramaswami gave me the responsibility of finding him another tenant! That is how we came back together after many years..Bar & Bench: Could you recount your experience working with Fali Nariman and Soli Sorabjee?.Raju Ramachandran: Working with Mr. Fali Nariman is always a great learning experience. What an intellect, what a sharp mind, what depth and breadth of knowledge! He was, of course, very difficult to deal with in conferences, and he continues to be so. But he is always open to changing his position. One minute he may tell you that you are talking utter nonsense. But ten minutes later, if he sees the point of what you are saying, he will tell you that you are right. It was my “great good fortune” to have worked with Mr. Nariman as it has been my good fortune to work with Mr. Soli Sorabjee..I worked with Mr. Sorabjee during both his stints as the AG. In his first stint, I assisted him in the Bhopal gas leak case. We went to the USA together and I spent ten days in his company and came to know what a simple and good human being he is, apart from being a brilliant lawyer. He had this gift of reaching out to people outside his chambers as well. He, like Mr. KK Venugopal, has done a great service to the Bar by taking and grooming a large number of juniors in his chamber. I was not in Soli’s chamber but he took a liking for me and encouraged me and took me under his wing. Till date, many people think that I am Soli’s junior!.Bar & Bench: You were the Amicus Curiae in the infamous Gujarat riots case. You submitted a report and the Special Investigation Team (SIT) submitted another report. Ultimately, there was no prosecution of Narendra Modi as you had suggested. What do you have to say about this entire episode?.Raju Ramachandran: There is nothing that I have to say. It is all a matter of public knowledge and record. I did my job. I was asked to give an independent assessment which I did. The SIT disagreed with my report which they were entitled to. But I did my job and my conscience is clear..Bar & Bench: You appeared for the NALSA in the Transgender case. You were an Amicus Curiae in Ajmal Kasab’s appeal. Talk us through those experiences?.Raju Ramachandran: I was invited by then Chief Justice P Sathasivam to be a member of NALSA which I was happy to accept because of my commitment to legal aid during my early years as a lawyer. The NALSA petition pertaining to Transgender persons was already pending in the Supreme Court and NALSA decided that a Senior Advocate should be engaged to appear on its behalf; and I was happy to do that case for the NALSA. Both the judges on the Bench were visionaries – Justice Radhakrishnan and Justice Sikri. They have given such a progressive and far reaching judgment which, paradoxically, is so much at odds with an almost contemporaneous judgment on Section 377 of IPC..However, the greatest challenge ever was being asked to appear in the Kasab case as an Amicus. I took it up as a call of duty. It was important for the credibility of the Indian legal system that a Senior lawyer appears for the most dreaded terrorist and I think the Supreme Court did itself and the nation proud by the attention it bestowed on the Kasab case without being swayed by popular sentiment..Bar & Bench: Earlier you spoke about “majoritarianism” in the Parliament. As a lawyer, how do you perceive recent trends like censorship, the banning of beef etc.? .Raju Ramachandran: As a lawyer committed to basic Constitutional values in which freedom of speech ranks high, one cannot but be disappointed and frightened by these emerging trends. One can only hope that more voices will speak up and stand up to be counted, and that liberal values don’t get submerged in these times of majoritarianism.