Senior Advocate BB Sawhney on the degradation of ethics in the legal profession

Aditya AK March 31 2019
BB Sawhney

BB Sawhney is a Senior Advocate of the Delhi High Court who now practices at the Supreme Court of India. In this interview, he talks about degeneration of ethics in the legal profession, how the court system can be improved, and more.

“In hindsight, perhaps I would have been better off in some other profession.”

BB Sawhney looks back at more than four decades in the profession with a tinge of regret. He is very much an old school lawyer, in more than one sense of the term.

He laments the fall of the ideals associated with what was once known as a noble profession, and has grown disillusioned with the way the legal system works. It seems evident that what is known as a dog-eat-dog profession has taken a toll on the mild-mannered Senior Advocate.

For it was idealism that prompted Sawhney to pursue law in the first place.

“When I was in school, my career master told me I should be scientist. But I had a different vision. I felt that something must be done, as India had such a glorious past. I read that Jawaharlal Nehru, Mahatma Gandhi, and Subhash Chandra Bose were all barristers. Therefore, I thought that I must join this profession and do something for this country.”

He went on to do his LL.B and LL.M from London University, and was called to the Bar in England back in 1971. After graduating, he went on to teach students who were sitting for the law exams.

Back home, the mid-70s was a time for political revolution, and it was during this time that Sawhney decided to return to India to play his part. He was inspired by the movement led by Jayaprakash Narayan.

Jayaprakash Narayan

Jayaprakash Narayan, whose movement Sawhney wanted to play a role in [Source: Outlook]

 “In 1974, came the Emergency and the JP Movement. That was when I decided to come back. So, went to see Jayaprakash and asked him how I could help. He told me to go to Delhi, where there was this organisation called Citizens for Democracy which had lawyers and others as its members. It was headed by VM Tarkunde, who was a former judge of the Bombay High Court.”

It was while working with Citizens for Democracy that Sawhney joined the Delhi Bar in 1975. However, he grew disillusioned by the movement, and began to practice law full time thereafter.

“I got dissatisfied with the movement, because it got hijacked by political parties. This was around the time the Janata Party was formed. I found that the persons who were genuinely interested in working for the country were in the background, and the politicians were exploiting the situation.”

From there on, there was no looking back.

He recalls the early days of practice, when the Delhi High Court used to function out of the Patiala House Court complex. And it was here that Sawhney got a taste of what the profession was becoming.

“It was during my first few days in the profession. I was just trying to find my way around. On the fifth or sixth day, I was trying to get to know where filing happens etc. I didn’t have a case in hand at the time. Then somebody asked me for advice in the corridors. While I was speaking to them, a person came up and said quite audibly, Inse kyun baat kar rahe ho? Inki client ko kal phaansi hui hai! (Why are you asking him for advice? His client was hanged yesterday) I had never a handled a case before!

patiala court

The Patiala House Court, where the Delhi High Court used to operate from

Unfortunately, even back then, the practices being followed were not healthy. As the years have passed, these are still being followed. You have agents roaming around in courts and asking litigants what needs to be done. In the High Court, it is somewhat better.”

He goes on to lament the general fall of standards at the Bar.

“I think over the years, the perception is that the standards of the Bar and the Bench have fallen. The level of etiquette and court manners has suffered.

When we started practice, nobody dared to raise a finger and say that a judge was corrupt. The thought didn’t even cross our minds. But now, you know what the position is in the High Court and even the Supreme Court. Even Chief Justices are not spared.”

Like all litigating lawyers, Sawhney too struggled during his early days.

“The first five years were a struggle, because we did not have any lawyers from our families. I have never been a person inclined towards making contacts and going to clubs to meet clients. That’s why the struggle was all the more difficult. But slowly, it built up.”

He went to join a firm where he was a Partner for about five years. After he went independent, a few clients from that firm came to him for work. When the work was scarce, he used to do legal aid work. To this day, he makes it a point to do some pro bono work.

“Even now, 20% of the cases I do are pro bono.”

Was there any particular case that helped him get recognized?

“Som Prakash Rekhi v. Union of India. Bharat Petroleum Staff Association and Pensioners’ Association. It was one of the first judgments on the definition of ‘State’. Initially, under Article 12, ‘State’ was the government. Then, its scope got widened to included corporations and statutory authorities.

The Supreme Court held that BPCL, although incorporated under the Companies Act, was an instrumentality of the state, because it was controlled by the government.

In a way, that was a break.”

Speaking of important cases, Sawhney is the husband of Indra Sawhney, a name that has become an inseparable part of Indian jurisprudence. The same Indra Sawhney who challenged the Narasimha Rao government’s move to provide 10% reservation for general category citizens based solely on economic criteria. The Supreme Court in that case eventually placed a 50% cap on reservations in educational institutions and government posts.

And history could repeat itself, with reports claiming that Indra Sawhney may challenge the Modi government’s recent law calling for 10% reservation based on economic considerations.

On the topic of reservation, BB Sawhney feels that it is time for a rethink on the approach.

“Whenever there is a genuine handicap, of course there has to be reservation. If in general competition, you find that say 12% of Scheduled Caste candidates have got in through merit, then to my mind the reservation should be reduced from 20% to 8%. The idea being that there should be proportionally represented in services and education. But the law states that if they get in through merit, they are not to be counted.

ambedkar statu

I think that this mindset only perpetuates casteism. We should work towards a system where there should be 15% reservation at the school level, so that everybody gets proper education and has a more or less equal chance. At later stages, reservation can stop. In that way, we can perhaps reduce casteism. But once you put a stamp, you are perpetuating casteism.”

From there, the conversation moves on to Sawhney’s style of argument in court. Whereas counsel often try to out-shout each other in court, Sawhney’s style is quite different, to say the least.

“I’ve always been a low-key counsel as it were. I tend to read the entire brief myself; of course the frame of the case is set at conferences, but I make copious notes on the case myself. I do not have a very loud voice. But now and then one has to raise their voice depending on who is on the other side! So, modulation is sometimes required.

But it also depends on the judge; judges’ temperaments vary. There are judges who are patient – with them it is good to be slow. For those who are in a hurry, sometimes you have to raise your voice to get attention. In our initial days, there used to be sober judges. Where have they gone? There are very few of them left.”

When asked which lawyers made a lasting impression on him, he says,

[Fali] Nariman, [Nani] Palkhivala, [VM] Tarkunde. PP Rao as well. MK Ramamurthy was also a person I had the highest respect for. Their morals, values, and professional etiquette were exceptional. They were also completely fearless, but very fair at the same time; they never misled the Court.”

Fali S Nariman

Fali S Nariman

And what advice does he have for the younger generation of lawyers?

“Do not tend to adopt insincere practices with your clients, and don’t mislead the court. Have an image where the judge trusts you. If you gain that kind of image, you are bound to succeed. In the long run, your progress may be slow, but slow and steady wins the race.

Unfortunately today, the first thing juniors ask is how much the salary is going to be. I think one should be patient, work hard and be honest.”

He feels that the degradation of values is not limited to the legal profession alone.

“This is probably a national problem, an erosion of values all around. It may not be true only of the legal profession; look at the medical profession, chartered accountants, etc. There has been general professional degradation.

Our education system is to blame for all this. Parents of children have drifted away from moral values and ethics, probably because of the environment around them. Our school system is more geared towards equipping children to become doctors or engineers. Things like how to behave with fellow citizens, which should be the basis of education, has disappeared. There is too much focus on bookish knowledge and to be first in the rat race. To be first where?

You should work towards happiness of all, or at least respect others’ rights. Who remembers what Sarve Bhavantu Sukinah means today?”

Should law be taught at the school level in order to inculcate ethics and values?

“It should. Law is what one encounters in everyday life. In England, they had an elementary book called Know Your Rights. It gave guidance on what you should ask when the police stops you, how the basic legal process works, etc. Children can also be taught about various welfare schemes and such.”

At the fag end of a long career, Sawhney has reduced my appearances in Court. He plans to retire in three years. What drove him to this decision?

“The general degradation of the system. After filing a case, one has to wait 12-15 years. The client gets frustrated and you feel helpless. The system is much too slow to do justice. We have to adopt reforms and speed it up.”

Having seen the legal system in England function from close quarters, what differences does he see here in India?

“The counsel there were fairer. The tendency here is that counsel mislead the court. Here, the record says one thing, and what is represented by the lawyer is completely different. This habit of concealment should stop; it should be fair to the court and the opposing counsel.”

And what can we learn from them?

“Countries like England, from where we borrowed the system, have gone far ahead. Their case planning is something we should look at. They list the case, give you a rational time to argue the case, and don’t entertain adjournments. However, complex the matter is, the court finishes off the matter in a maximum of two hours.

Here, one party argues for half an hour, then the case gets adjourned for three months. Even if you come well prepared with your arguments, the judge is on leave or the other side makes some excuse. That way, you lose a lot of time.

Here, we do not have a second tier to ensure case management and preparation. In suits here, we have questions like ‘Is the plaint signed by a duly authorized person?’ An issue like that would not be entertained in England. And here, we spend half an hour recording evidence whether the signatory is authorised or not.

I don’t know if it is apathy on the part of the powers that be, but something needs to be done.”

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