“In our country, the role of all watchdog institutions needs serious introspection”- ASG Sanjay Jain

Sanjay Jain is the Additional Solicitor General for the present government, and the man wearing the crown of thorns in the Delhi High Court. Constantly seen rushing from one court to another to defend the government, he is known to be tenacious in his arguments yet passive-aggresive while addressing the Court which has earned him respect from the Bench.

In this interview with Bar & Bench, the veteran lawyer talks about his love for the written word, reiterates the transparency in coal block allocations, his views on the controversial Priya Pillai episode and why NJAC is the way forward for judicial appointments.

Bar & Bench- Tell us more about your early days in law.

Sanjay Jain- I graduated from Delhi University, Faculty of Law and started working in the Tees Hazari Courts under Mr. SC Sharda. He used to give me ample opportunities to conduct evidence, cross examination etc. and I picked up various other traits that are vital to any lawyer practicing in the original side. Within a year of joining him, I had started taking up my own work.

It was hard to survive in the initial days and especially being a first generation lawyer with no legal backing. Not being schooled in Delhi, I did not have any school friends/acquaintances to help me with their contacts. But because of my good reputation as a debater during my university days, my colleagues were my first clients. They used to refer me matters that they were unable to attend as they had implicit faith in me that I would deliver.

During my early days, corporate litigation had not yet taken flight. In 1993, I entered the corporate fray when American Express took me as their general counsel. And it was during the NDA regime of 2001 that I was appointed as the standing counsel for Central Government. This cemented my place in the Delhi High Court and also helped me break out of the mould of being addressed as a ‘TeezHazari lawyer’. After demitting office post-NDA regime, I applied for my senior designation with the Delhi High Court in 2005 and it came through within a month. So effectively I was designated as a senior counsel at the age of 43, within five years of shifting my practice from other  courts exclusively to Delhi High Court.

Bar & Bench- You set up a niche practice for yourself with lottery tickets litigation.

Sanjay Jain- In the 90’s, the North-Eastern states did not have any industries that generated employment. It so happened that the trademark unique to a specific state lottery would be picked up by another state and they would constantly engage in legal battles over trademark disputes. I would often appear in Gauhati High Court for lottery trademark litigation. This was peculiar because ordinarily trademark disputes fall in the Original Side jurisdiction and Gauhati High Court did not have original side work. But my client wanted the matter to be handled only in that High Court because all the seven states were subject to its jurisdiction. I devised a scheme which would cover lottery related litigation pertaining to IPR disputes under the writ jurisdiction. The logic behind this was that if a sole distributor of a state lottery develops a trademark, the role of the state government is only to approve the trademark. Intellectual property is still owned by the sole distributor and if his rights are affected by another state government giving approval of a similar trademark, then he is well within his rights to sue the concerned State Government and its distributors. This kind of litigation gave me a wonderful opportunity to augment my skills, not only by arguing myself but by briefing and engaging illustrious seniors like Mr. Arun Jaitley, Dr. LM Singhviand Mr. Sidharth Shankar Ray. The Gauhati High Court litigation from 1996-98 was a major turning point in my career.

Bar & Bench- You have been point man for the government in the ongoing coal block allocation cases. How do you respond to criticisms on the transparency of the process?

Sanjay Jain- As far as the bidding process is concerned, it has been very fair and transparent and fair amount of thinking has gone into structuring it. There have not been any technological glitches, notwithstanding the few allegations made in this regard by the other side. One needs to understand that whenever we develop any kind of project, it will come with its share of criticism. Nobody can create a perfect system. The system has to be tested as to how has it been acted upon, what are the reactions, whether it has worked or not and during this entire process, a few shortcomings maybe possible. But those shortcomings have to be tested from the perspective as to whether they are such major shortcomings that would make a system redundant or are they the kind of shortcomings which are an inevitable part of any system.

For instance the first matter in which the Delhi High Court returned a verdict on coal block allocations was Jindal Steel & Power Ltd. In this case, the question was of defining the end use of a particular coal block. The High Court has held that while determining the end use, prior use should also be kept in mind. That is also a perspective and it is ingrained in  the High Court order so I can’t say that the perspective is wrong. At the same time, the argument advanced by us where we said that we wanted to define the ‘end use’ of a coal block keeping in mind the quantum and quality of coal in a mine, also had a sound logic behind it. In the coal blocks  identified in the first phase of auctions, we redefined the ‘end use’ of every coal block basing these two crucial factors in place. Now whenever we go for a particular criterion, there will always be one or two exceptions. One such exception was Jamkhani  coal mine where even though the coal reserve was higher,  the Government  still decided to put that particular block for the non-regulated sector. The thinking behind this exception was that the coal quality in Jamkhani was better so Government  did not want to allocate that particular coal block for power sector which utilizes inferior quality of coal as opposed to steel and other industries. So the spirit behind the idea was honorable. The entire classification of end use was done with complete transparency on certain broad parameters and not in an arbitrary fashion. There was a committee which went into each and every aspect. So far, in the entire coal block matters not a single petitioner has been able to show that we have done anything with an element of bias or discrimination. All the observations which have come from the court are whether the alternate view can also be accommodated and/or whether the government’s zone of consideration could be enlarged. Apart from that no court has till date passed any indictment or observed that we were acting discriminatory by ousting the interest of any single private party.

Bar & Bench- The Priya Pillai judgment came down hard on the government. You were the Union counsel in that matter.

Sanjay Jain- Am yet to receive instructions from the government on whether they want to appeal the verdict or not so as of now I won’t be able to comment on this. However I firmly reiterate the government’s point of view. It was clearly articulated in Court that we have nothing against the concerned individual and there was no restrictions on her entitlement to go abroad. The sole purpose of the Lookout Circular issued against her was to prevent her from visiting United Kingdom, to ensure that she does not participate in a congregation of parliamentarians who were hostile to India’s interests.

Having said that, we also have to strike a delicate balance between freedom of speech and expression on the one hand and interests of the nation on the other. While there has been no action against these activists in their activities in India, the governmental idea was only to preserve India’s image abroad. If these groups pass a resolution, then such resolutions become a catalyst for passing of economic and financial sanctions against a country. I still believe that in law, we are not always facing situations where the decision is in white and black because there exist a lot of grey areas. The flak we received in this case was a valid perspective which can be justified. But had the court gone the other way, it would still have been justifiable because it is another genuine perspective that the government had.

Bar & Bench- What changes have you seen in Delhi High Court over the past two decades?

Sanjay Jain- The Delhi High Court has grown in leaps and bounds. The judges today put in much longer working hours; they come fully prepared to court. More than 3/4^thjudges of the High Courtare doing an excellent job. Even the administrative side has done a lot in making the filing system easier with the introduction of e-filing etc. However, given the fact that there are a large number of young lawyers, there should be a more proactive approach from the registry in creating more filing counters so that there are lesser queues and chaos. Most of the youngsters do not know how to handle filing, refilling etc. Secondly, the Bar Association needs to understand that the most relevant topic they do not seem to address adequately is the empowerment of lawyers as lawyers. They should hold weekly workshops and seminars educating young lawyers on honing their skills of court craft, their demeanour in court, cross examination skills, argument structuring and drafting acumen. The behavior of lawyers towards each other and to the Bench is not  very ideal or healthy. Some lawyers come to court with a lot of aggression and try to ridicule the other side by browbeating the opposite counsel. So a young lawyer who observes this conduct feels that such attitude is acceptable and is good to follow.

Bar & Bench- How has your relationship with the government been so far?

Sanjay Jain- It is impersonal and mechanical. When we see the matter before us, we do not concern ourselves with the government official who has come to brief us; whether it is a minister or secretary. I only see it from the standpoint of whether a matter can be defended effectively or not. Whatever is my view, I communicate it accordingly and if the department concurs, I choose a plan. If it doesn’t concur, I express my reservations and if I totally disagree, I withdraw myself. But mostly if the Attorney General or the Solicitor General opines  that an appeal need not be filed, the government usually follows that opinion. Instructions given by the executive cannot be termed as executive interference. I work with a dual capacity; one is where I work as a lawyer to the government and secondly my position as the officer of the court. If I find something to be completely absurd or I feel I won’t be able to articulate a particular point adequately, notwithstanding the instructions of the government, I inform them accordingly.

Bar & Bench- What is your opinion on the burgeoning litigation, further increased by intra-court and inter-court  appeals filed by the government?

Sanjay Jain- This particular issue has become extremely relevant in today’s scenario.Generally, law officers of the country are giving correct advice to the government that a particular matter need not be appealed against. But sometimes the government officials insist that the appeal should be filed despite the advice to the contrary. In  my understanding, their anxiety or insistence to file an appeal is to save themselves from a future indictment or prosecution on the allegation that non-filing of appeal caused loss to the government.

In our country, there is a need for serious introspection on the role of all watchdog institutions that sometimes came across as a bigger impediment during the decision making process of the government. Of course these institutions are required to keep a watch on corrupt and unfair practices but there has to be some self-restraint and assurance that the decision makers would not be unnecessarily indicted or prosecuted. Such apprehensions in my view lead to situations where  the Executive, is not  willing to take responsibility and accept the judgment till it is tested by the final court.

Bar & Bench- You were recommended for judgeship twice. Your thoughts on the NJAC?

Sanjay Jain- I wholly support the NJAC. Taking my own example, while I was under the zone of consideration, after I gave my consent to the Chief Justice, I did not have any control over people who may have vested interests. If those people write complaints against a prospective candidate, the collegium judges should not isolate themselves in insulated towers. They should try to find out the truth in these allegations. The existing collegium at the Supreme Court does not seem to take any efforts to investigate the veracity of allegations made against any particular nominee. A recommendation gets rejected without giving the person a chance to explain his stance – that is akin to condemning a person without hearing. Till date, I do not know the reasons behind my rejection. The NJAC proposes to bring in executive involvement to the entire process. Even though there is a consultative process in the present collegium system between the judges of Supreme Court and various High Courts, it is of such clandestine nature that nobody comes to know of it. NJAC will definitely usher in a greater amount of discussion, along with greater amount of transparency.

Bar & Bench- Advice to young lawyers

Sanjay Jain- They have to be patient. Rome was not built in a day. This is the only profession where they can make unlimited strides as sky is the limit. I have always followed a mantra of never giving up. Even in a losing cause if you can get a compromise for your client, then that can be termed as a victory of some sorts.

Bar & Bench would like to thank Advocate Shreshth Jain for his assistance in arranging this interview.