Don’t lay guidelines, outline contours of press freedom: Salve


NEW DELHI: Former solicitor general Harish Salve on Wednesday said the Supreme Court should make the media aware of the boundaries within which it must operate while reporting court proceedings and suggested that the constitutional court must bring clarity to the contours of press freedom to prevent breach of a citizen’s right to fair trial and right to life with dignity, guaranteed under Article 21.

He agreed with most lawyers in telling a five-judge bench of Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, R P Desai and J S Khehar that it was not for the apex court to frame guidelines but disagreed with other senior advocates who had said that the court could have a case-to-case approach in scrutinizing media reports for transgression of right to life related sub-rights of an accused or a private citizen.

“The Supreme Court is not Press Council of India to tell the media what should not have been written. Media too cannot decide what should be the spread and extent of its right to report conferred on it to meet the people’s right to know. So, the Supreme Court is the only organ under the Constitution which can bring clarity by declaring the contours of right to free speech and expression under Article 19(1)(a) by balancing it against the crucial right to life,” Salve said.

“What the Supreme Court declares as the limits under Article 19(1)(a) will be abided by the responsible media, most of whom are very responsible. That is the surest way to safeguard citizen’s right to life which encompasses their right to privacy and right to live with dignity in a society,” said Salve, who appeared in an application moved by Vodafone months ago complaining about misreporting.

The senior advocate said continuous commentary on the merits of a case while it was being argued and targeting of individuals by media had a chilling effect on judges and lawyers, inhibiting free and frank discussion in a court room. “After all, judges and lawyers are human beings. The court should clarify if such reporting puts in peril such discussion during court proceedings,” he said.

Salve said government’s affidavits could be reported by the press even before it came up for court scrutiny. But if scurrilous allegations were made in any affidavit branding people as terrorists, murderers or money launderers, then the media has to wait till the court scrutinizes the contents of the affidavit in an open court hearing, he said.

The bench asked, “In our country the ground reality is that suit for damages or defamation is not an efficacious remedy against such errant reporting as it would take 20 years for conclusion of such proceedings. Will a high court or the Supreme Court be accused of violating Article 19(1)(a) if it entertained a petition from a person aggrieved by scurrilous allegations reported in the media and passed a temporary restraint order?”

Salve said constitutional courts would be well within their limits to entertain and pass appropriate orders on a writ petition from a private citizen complaining that his/her reputation was being destroyed by scurrilous allegations repeatedly reported by TV channels or print media.

If Salve cited Nupur Talwar case to point at spurious effects of brazen media coverage on a person and his right to fair trial, former law minister Ram Jethmalani cited the Jessica Lal murder case proceedings in Delhi High Court to highlight miscarriage of justice because of sustained media campaign.

Before concluding his arguments, Jethmalani said the courts have power to order repeat publication of material that hurt the right of the accused to fair trial or interference in the administration of justice. “Guidelines on media reporting will not solve the problem. On the contrary, it may create additional problems. The solution lies in enforcing Contempt of Court Act. Send one or two persons to jail under the contempt law and that will bring sanity in reporting,” Jethmalani said.



Judiciary can’t regulate press freedom: Jethmalani

Ram Jethmalani (born September 10, 1923) is an...

Ram Jethmalani (born September 10, 1923) is an Indian politician and a famous and controversial criminal lawyer. (Photo credit: Wikipedia)


NEW DELHI: Former law minister, MP and senior advocate Ram Jethmalani on Tuesday told the Supreme Court that it would be unconstitutional to curtail or regulate press freedom through judicially evolved guidelines because Parliament alone was competent to undertake this exercise through legislative route.

Appearing for a media association before a five-judge constitution bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar, the octogenarian lawyer suggested that the best method to evolve guidelines for reporting subjudice matters without infringing the rights of the accused was to seek consensus through meetings between judges, lawyers and leaders of the media.

“The guideline evolved through this process could be recommended to Parliament for appropriate legislative action. I can assure you that Parliament would act on such a recommendation,” he said.

Though the bench had doubts about the efficacy of normative guidelines in protecting fair trial because of excessive reporting intruding into the domain of judges in certain cases, it said, “If we have to recommend, we will do so. There is no problem at all. But the limited question is what should the court do when a person approaches it complaining against media’s blatant breach of his right to presumption of innocence till pronounced guilty? Would the court be breaching Article 19 if it protects the right of the accused by ordering deferment of reporting for a short period.”

Jethmalani was unrelenting. He said, “A pre-publication ban is ultra vires. A guideline to this effect is unconstitutional. Even if the Supreme Court has some legislative power, when the issue involves Article 19, restrictions must come from a statute made by Parliament.”

However, he agreed that if a constitutional court was convinced that a newspaper report compromised the right of an accused and jeopardized fair trial or administration of justice, it could surely put a ban on subsequent publication of the matter.

Jethmalani said the malady of misreporting or biased reporting could be controlled if the judges shed their populist approach and sent a couple of errant journalists to jail under contempt of court law.

“Contempt of court law is not invoked as much as it should be to invoke the fear of god in journalists. The court will not have to worry about media guidelines if contempt jurisdiction is invoked and sent a message that press cannot get away with contemptuous reports,” he said.

Appearing for the Statesman newspaper, counsel Madhavi Goradia Divan argued against court-framed media guidelines saying mere reporting of trial proceedings would not vilify anyone as the public was aware of the cardinal principle ‘presumption of innocence till pronounced guilty’.

On the flip side, she said well-intentioned guidelines could be taken out of context and attempts would be made to achieve something which was completely different from what the court was intending to do. “The trial courts are well aware of the powers conferred on them to control reporting of proceedings in a criminal case,” she said.

The bench clarified, “Our effort is not to punish but to prevent. This exercise is an awareness process for everyone. We want to put in guidelines to avoid certain situations by deferring reporting for a limited period of time. We are not going into reporting of other wings of government but of a limited restraint on reporting as far as court proceedings are concerned.” The arguments will continue on Wednesday.

Judiciary can’t regulate press freedom: Jethmalani

RS passes Sen impeachment motion and questions how judges appoint themselves

Parliament building in New Delhi (Sansad Bhava...

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The Rajya Sabha today passed by an overwhelming majority a motion to impeach Calcutta High Court judge Justice Soumitra Sen on charges of misappropriation of large sums of money and making false statements and misrepresenting facts of that misappropriation. And, in the process, the Elders used the opportunity to pose a question to the higher judiciary: how did somebody like Sen, whose conduct as a lawyer was highly questionable, become a judge in the first place?

That question wasn’t purely rhetorical — speaker after speaker during the four-hour debate got up to question the current collegium system of appointment. And many MPs, cutting across party lines, criticised what they called the growing tendency of the higher judiciary to step into the domain of the executive and the legislature.

While 189 members voted in favour of the motion to impeach the 53-year-old judge, 17 members, including 16 from the BSP, voted against it. The BSP was the only party that came out in support of the judge.

Contacted after the vote, Sen told The Indian Express: “I am extremely disappointed… There is no question of my resigning. I shall fight till the end and explore all legal remedies. I am honest on this issue and will continue to fight my case.”

Not many had bought this case. Continuing from where he left yesterday, Leader of the Opposition in the Rajya Sabha Arun Jaitley said that the time had come to revisit the procedure for appointment of judges, strongly favouring a National Judicial Commission (NJC) to replace the collegium system. “The system of judges alone appointing judges must now change. India needs a National Judicial Commission to appoint judges,” Jaitley said. He said the NJC should comprise representatives of the judiciary and executive, as well as prominent citizens.

“Both the pre-1993 and the post-1993 system had several handicaps. The best in this country are not willing to become judges. We have to seriously consider why… We should seriously consider a system which is being debated about setting up a National Judicial Commission… Public interest has to be protected in the matter of appointment of competent judges, in the matter of appointment of judges who are men of integrity, men of scholarship. Not only this, the criteria for appointment today does not exist. Is it today the discretion of the collegium? Collegium is also a system of sharing the spoils. When the High Courts recommend, members of the collegium share the spoils,” he said.

Talking about judicial over-reach, Jaitley said: “Separation of powers requires that every institution works in its own spheres. And if every institution works in its own spheres, it has to lay down the lakshman rekha of its own jurisdiction..And I must candidly confess that this attempt to encroach upon the lakshman rekha is neither coming from governments of the day in the Centre or the States nor is it coming from the Executive or the Legislature. Some serious sidestepping is coming from the judicial institution itself.”

He was also critical of the “increased trend” of the Executive giving jobs to judges after their retirement, saying, “There is a possibility of retirement-eve judgments getting influenced in search of post-retirement jobs…this is a serious threat to judicial independence.” Jaitley also reiterated that Sen had tried to mislead the House by presenting “serious falsehood” about the facts of his case in the House yesterday.

Taking a dig at the recent incidence of the apex court taking an ideological stand, Jaitley said, “Courts cannot say that this is neoliberalism which is creating problems. Courts cannot have an ideology. The only ideology that courts can have is commitment to the rule of law and what law is made by Parliament. Courts cannot tell this to the Government.”

Congress MP E M S Natchiappan said he “felt sorry” the way in which a serving judge had attacked the judiciary, especially a former CJI, in words that were never ever used in Parliament.

Springing a surprise, BSP MP Satish Chandra Mishra, who opposed the motion, said: “The findings have said there has only been diversion of funds and not misappropriation and secondly the finding of a single judge was dismissed by a division bench.” Therefore, he said, it could not be the ground for his removal.

In his address, noted lawyer Ram Jethmalani (BJP) launched a frontal attack on Sen, urging members not to be “misled” by his eloquence, which, he said, had nothing to do with morals. “This man did not deserve to be a judge. Not only should this judge go, other judges who do such things should not remain for even one more day…Let us set a good precedent today so that judges with similar bent of mind get a message that they cannot get away with such things.”

Jethmalani added that by paying the Rs 52 lakh, Justice Sen had bought for himself a reprieve from possible prosecution for criminal breach of trust that carries a prison term of 10 years to life.

CPM’s Sitaram Yechury, who moved the motions against Sen, also favoured setting up of a judicial commission.

D Raja (CPI) stressed the need for a judicial system based on probity and integrity. “A National Judicial Commission is required so that there could be accountability of judges,” he said, adding the nation is agitated over corruption in high places.

Tiruchi Siva (DMK) and Bharatkumar Raut (Shiv Sena) spoke on the need for judicial reforms and changes in the system to appoint judges.

Rajneeti Prasad (RJD) said the appointment system has to change and unless this happens, corruption in judiciary will remain, there will always be some appointments based on personal — rather than professional — considerations.

“When a peon is being appointed, he is interviewed. Set up a judicial commission…This way, good judges will be appointed. Otherwise, only children and kin of judges will become judges,” Prasad asserted.

Kumar Deepak Das (AGP) and H K Dua (Nom) also made similar demands. Ravi Shankar Prasad (BJP) said though the judiciary’s fight against corruption was welcome, the trend of judiciary “taking away power by appointing committees — MCD should work like this; this committee should work like this” was wrong. “May be, the authority is not functioning properly, but for that you are not the authority. Let the democratic process, the rule of the law and parliamentary accountability set right the course,” he said.

Immediately after the motion was passed, Prime Minister Manmohan Singh, who remained present in the House and voted, walked up to Yechury and Jaitley and congratulated them on the approval of the motion.

Now that the RS has passed the motion, the matter will go to the Lok Sabha, where, once again, Sen will get an opportunity to present his defence. However, the date when the Lok Sabha will debate the motion, will be decided early next week by the Business Advisory Committee.

A constitutional value for privacy


The fine line between transparency for accountability and transparency as a stand-alone ambition is getting fudged.

The notion of privacy has been under attack in recent times. Information technology, with its seemingly limitless capacity to hold, and give access to, all kinds of data and details about peoples, places, happenings and scores of other facts and fiction, has overwhelmed concerns about privacy. Facebook and its kin, though of remarkably recent origin, have already spun a web of forgetfulness around the significance of privacy.

The possibilities offered by technology have encouraged the state to get greedy for all that it can gather about people. In the beginning, it was only the census. The census was confidential. Not even a court could demand, and get, information about an individual collected as part of the census. The census was to get to know the state of the nation; not to delve into details about individuals. The census belongs to a tradition that is being edged into obscurity by more recent forays into data gathering and use.

Collection of statistics

In the past three years, the state has begun to work at enhancing its capacity to reach into people’s lives and know all. Take, for instance, the 2008 law authorising the collection of statistics. This replaced a law of 1953 vintage that was concerned with “industry, trade and commerce,” and sought the help of returns filed and registers maintained in collecting data and churning out statistics. The 2008 Act is ambitious and expands its interest to “economic, demographic, scientific and environmental aspects.” The 2008 law derives its information from multiple sources, including individuals and households who are bound to give information when asked, on pain of punishment if they refuse or give information that was misleading. The law provides no boundaries reining in the statistician’s curiosity. So, to study sex selective abortion, and given that the skewed sex ratio is a matter for national concern, if the statistician decides to seek household data on miscarriages and abortions, that information has to be provided. And, ultrasound clinics can be called upon to be “informants” (a term the law uses), and we may never know that our personal history has travelled from database to database. Confidentiality is crumbling away, unheeded.

In April 2011, rules made under the Information Technology Act 2000 directed that every user of a cyber cafe should provide information including name, address and identification particulars. This, along with the photograph of the person as also a list of sites the person visited, should be preserved for at least one year. The idea of the friendly neighbourhood cyber café owner being the repository of this information does not seem to have struck the rule-giver as bizarre. Another set of rules, also dated April 11, 2011, gives the government the power to demand and get any data including “sensitive” data from any body corporate. This may include information about mental, physical and physiological health, sexual orientation.

In December 2009, the Home Ministry set up and hosted NATGRID. As a part of this, 21 databases are to feed 11 security agencies. It is closed to scrutiny; so we will never know what is being done with data, but we will all be under surveillance. All, of course, in the interests of national security.

The unique identification, or UID, project, marketed as voluntary and increasingly being projected as mandatory so that enrolment targets can be met, is a tool to achieve convergence of data that exist on various databases. It is, of course, not only the state that has an avid interest in these developments. The “market” supports the idea of connecting databases. Convergence will make the fortunes and foibles of the population transparent to the marketers. It is no wonder that they do not protest.

The explanation

This extraordinary momentum to get to “know” the people of India is explained away as being necessary to curb terrorism, or to prevent leakage and corruption, or as being essential to reach services to the poor. Or to give identity to those who the state does not know exist, and which ignorance can only be remedied by giving them a number by which it may be known that they exist. Or to make it possible to produce good statistics, which could, just perhaps, aid better planning. Ominous terms such as surveillance and “social control” are hardly, if ever, invoked even if they underpin each of these exercises. Revealing a steep decline in respect for civil liberties even among those representing civil society, the National Advisory Council‘s Communal Violence Bill adopted the idea of interception and non-transmission of communication — before it was withdrawn following criticism.

The Jan Lokpal Bill is drenched in a notion of transparency that treats the “private” as the enemy of the public, and as dispensable. In all this, the fine line drawn in the Right to Information discourse between transparency for accountability and transparency as a stand-alone ambition is getting badly fudged.

Now, happily, it has come to pass that the Supreme Court had lent its weight to the constitutional value of privacy in the Black Money judgment (Ram Jethmalani vs. Union of India, decision of July 4, 2011). The government has been objecting to the judgment as being a case of judicial overreach. It is a little difficult to understand this stance. The government had set up a high-level committee comprising 10 senior officers from various revenue and investigating wings of the state. The Supreme Court renamed this as a Special Investigation Team, while including the Director of the Research and Analysis Wing (RAW) in it. It is not clear why, and maybe an explanation would have helped.

What has irked the state, however, is the inclusion of two former judges of the Supreme Court to “guide and direct” the team. The judges found that “the major problem in the matters before us has been the inaction of the state,” and this inertia and lack of urgency needed to be set right. Yet, it is not as though the judges took the matter away from the executive; what they did was to introduce the judicial element, which would monitor progress in the investigation and act as a spur. This could be just what is needed to add a dash of transparency to governmental proceedings.

This same decision goes on to protect the individual person. In a refreshing return to constitutionalism and restoring significance to privacy when placed in a balance with public interest, the judges have expended thought and effort (paragraphs 72-77) in explaining the “right to privacy.” To pluck a couple of statements which are representative of what the judges held: “Right to privacy is an integral part of right to life. This is a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner… We are not proposing that constitutions cannot be interpreted in a manner that allows the nation-state to tackle the problems it faces. The principle is that exceptions cannot be carved out willy-nilly and without forethought as to the damage they may cause.”

The difference between a transparent state and a private citizen has been clearly established. These are words to be weighed while looking for the limits on the power of the state, and as privacy jurisprudence is developed.

(The author is an independent law researcher working on the jurisprudence of law, poverty and rights.)

Non-Functioning of the Government on the issue of India’s Black Money is the only reason to move the Review Petition

Supreme Court of India

Exposure of the Non-Functioning of the Government on the issue of India’s Black Money is the only reason to move the Review Petition, otherwise Government should have welcomed the order dated 4th July, 2011, passed by the Supreme Court, in Writ Petition (civil) 176 of 2009 (Ram Jethmalani and others Vs- Union of India and others).

By Milap Choraria

It is really amazing to note from the some foregoing extract from the Order that despite the strict monitoring and constant scanning by the Supreme Court, the investigative wings did very little to inspire confidence even in the highest court of the land. It goes without saying that the investigations on India’s Black Money have serious implications for both internal and external security of our country. Another relevant part of the judgment brings out the state of one of our investigative agencies and perhaps a case of connivance so brilliantly. The judgment highlighting the investigation and undue haste shown to file the charge sheet without even consulting the High powered committee constituted for the purpose. The way the Government has opposed to the formation of an SIT (Special Investigation Team) by filing Review Petition is clearly mirrored in the following portion of the judgment. 


 The named individuals were very much present in the country. Yet, for unknown, and possibly unknowable,   though easily surmisable, reasons the investigations into the matter proceeded at a laggardly pace. Even the named individuals   had not yet been questioned with any degree of seriousness. These are serious lapses, especially   when viewed from the perspective of larger issues of security, both internal and external, of the country.”(Para 20)

 “We must express our serious reservations about the responses of the Union of India. In   the   first   instance,  during   the   earlier phases of hearing before us, the attempts were clearly evasive, confused, or originating in the denial mode. It was only   upon   being   repeatedly pressed by us did the Union of India begin to admit that indeed the   investigation   was   proceeding   very   slowly.   It also became clear to us that in fact the investigation had completely   stalled,  in   as   much  as   custodial   interrogation of   Hassan   Ali   Khan   had   not   even   been   sought   for, even though   he   was   very   much   resident   in   India.   Further,   it also now appears that even though his passport had been impounded, he was able to secure another passport from the   RPO   in   Patna,   possibly   with   the   help   or   aid   of   a politician.” (Para35)

 “During   the   course   of   the   hearings   the   Union   of   India repeatedly   insisted   that   the   matter   involves   many    jurisdictions, across the globe, and a proper investigation could be accomplished only through the concerted efforts by   different   law   enforcement   agencies,   both   within   the Central Government, and also various State governments. However,   the   absence   of   any   satisfactory   explanation   of the slowness of the pace of investigation, and lack of any credible   answers   as   to   why   the   respondents   did   not   act with   respect   to   those   actions   that   were   feasible,   and within the ambit of powers of the Enforcement Directorate itself, such as custodial investigation, leads us to conclude that   the   lack   of   seriousness   in   the   efforts   of   the respondents are contrary to the requirements of laws and constitutional obligations of the Union of India. It was only upon the insistence and intervention of this Court has the Enforcement Directorate initiated and secured custodial interrogation over Hassan Ali Khan. The Union of India has explicitly   acknowledged   that   there was much to be desired with the manner in which the investigation had proceeded prior to the intervention of this court.” (Para36)

“For   instance,   during the continuing interrogation   of   Hassan   Ali   Khan   and   the   Tapurias, undertaken for the first time at the behest of this Court, many   names   of   important   persons,   including   leaders   of some   corporate   giants,   politically   powerful   people,   and international   arms   dealers   have   cropped   up.   So   far,   no significant   attempt   has   been   made   to   investigate   and verify   the   same.   This   is   a   further   cause   for   the   grave concerns   of   this   Court,   and   points   to   the   need   for continued, effective and day to day monitoring by a SIT constituted   by   this   Court,   and   acting   on   behalf, behest and direction of this Court.” (Para36)

 While it would appear, from the Status Reports submitted to this Court, that the Enforcement Directorate has moved in some small measure, the actual facts are not comforting to an appropriate extent. In fact we are not convinced that the situation has changed   to the extent that it ought to so as to accept   that   the investigation would now be conducted with the degree of seriousness that is warranted. According to the Union of India the HLC was formed in order to take charge of and direct the entire investigation, and subsequently, the prosecution. In the meanwhile a charge sheet has been filed against   Hassan Ali Khan. Upon inquiry   by   us   as   to whether the charge-sheet had been vetted by the HLC, and its inputs secured, the counsel for Union of India were flummoxed.  The fact was that   the   charge-sheet   had   not been given even for the perusal of the HLC, let alone securing its inputs, guidance and direction. We are not satisfied by the explanation offered by the Directorate of Enforcement by way   of affidavit after the orders were reserved.” (Para38)

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Earthy reality needs soaring rhetoric

Salwa Judum soldiers in Chhattisagrh

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By outlawing Salwa Judum, the Supreme Court performed its fundamental duty by the Constitution and set the issues in a rich, rights-based framework.

In the 1970s, the Supreme Court of India was called upon to decide the constitutionality of Excise Rules that allowed the State of Punjab to regulate the number of days, even hours, when liquor could be sold.

In a judgment peppered with literary references, ranging from Thomas Bacon to Bernard Shaw, the court considered the adverse effects of alcoholism and ruled in favour of the State. “The statutory scheme of the Act is not merely fiscal but also designed to regulate and reduce [the] alcoholic habit,” the court wrote, rather provocatively. But the verdict, delivered by one of the most eloquent judges to grace the Bench, was neither an indictment against drinking nor a call for total prohibition. The court intended to situate the case in its socio-economic context, and embellish the legal conclusions with references to literature and even popular culture.

This is no unusual practice: some of the most celebrated judgments in India and in other countries have been richly endowed with observations from sociological studies, political treatises and economic surveys. The most powerful constitutional courts in the world, like those in India, South Africa and the United States, have often used allusions to support landmark decisions and ground them in a rights-based framework.

Therefore, it must not come as a surprise that the Supreme Court’s recent decisions in the Salwa Judum, Greater Noida land acquisition and black money matters have been infused with a liberal dose of such ingredients. Nonetheless, the Supreme Court has received flak for its observations in these cases for being “simplistic,” “too sweeping,” and rather ironically, “judgmental.” While the rhetoric has certainly soared in these decisions, to suggest that the court’s remarks in these cases are tantamount to judicial overreach is ridiculous and far-fetched.

To be sure, the Supreme Court in these verdicts has neither chastised the “neoliberal” policies of the state nor prescribed a course correction. It has merely expressed displeasure over the damaging consequences of these policies, which often result in the deprivation of constitutionally guaranteed rights. The same court that now finds itself in the dock for ideological overtures has in the past quoted Adam Smith with approval, even endorsing the free market economy.

But to construe these observations as affiliation towards a particular ideology or policy is incorrect. If the words of Joseph Conrad and Joseph Stiglitz have found their way into these judgments, it is only to underscore the point that the state’s so-called “growth-oriented” policies have led to a gradual erosion of fundamental rights. A remedy to this situation is certainly the business of the judiciary.

In Nandini Sundar, the court found that the Chhattisgarh government exercised arbitrarily, and abused its power under, the Police Act to create a militia. By outlawing Salwa Judum, the Supreme Court not only performed its fundamental duty in checking executive power but also upheld the rights of civilians. In Ram Jethmalani, the court found the state wanting in its measures to curb the exodus of black money. As with the 2002 Gujarat riots, the Supreme Court was well within its constitutionally defined parameters to appoint a Special Investigation Team when the administrative machinery had been callous or complicit. In Greater Noida Industrial Development Authority, the court quashed hasty land acquisition by the Uttar Pradesh government that violated due process. In addition to upholding the rights of farmers to their land, the court condemned the unjust enrichment of the real estate lobby facilitated through skewed policies.

To arrive at these conclusions, the court cannot, and should not, rely solely on textual interpretations of the law. The Constitution is an organic document that operates not in isolation, but in tune with the lived realities of people. As the custodian of the Constitution, it is the duty of the Supreme Court not only to invalidate any arbitrary actions of the state but also to remind the government that its policies cannot undercut guaranteed rights. The observations of the court, or obiter dicta, are by no means binding on the government, but they often serve as a compass set towards an administrative policy that is in tune with the ideals of the Constitution.

The New Nawabs

The supreme court of india. Taken about 170 m ...

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By Priya Sahgal and Kaveree Bamzai | India Today

When Ratan Tata moved the Supreme Court, claiming his right to privacy had been violated, he called Harish Salve. The choice was not surprising. The former solicitor general has been topping the legal charts ever since he scripted a surprising win for Mukesh Ambani against his brother Anil. That dispute set the gold standard for legal fees. On Mukesh’s side were Salve, Rohinton Nariman and Abhishek Manu Singhvi. The younger brother had an equally formidable line-up led by Ram Jethmalani and Mukul Rohatgi.

The dispute dated back three-and-a-half years to when Anil filed a case against his brother for reneging on an agreement to supply 28 million cubic metres of gas per day from its Krishna-Godavari basin fields at a rate of $2.34 for 17 years. The average legal fee was Rs 25 lakh for a full day’s appearance, not to mention the overnight stays at Mumbai’s five-star suites, business class travel, and on occasion, use of the private jet. Little wonder though that Salve agreed to take on Tata’s case pro bono. He could afford philanthropy with one of India’s wealthiest tycoons.

Welcome to the world of new nawabs. The lawyers’ fees alone, at a conservative estimate, must have cost the Ambanis at least Rs 15 crore each. Both the brothers had booked their legal teams in the same hotel, first the Oberoi and, after the 26/11 Mumbai attacks, the Trident. “Well, if you’re going to write all this, then you can also add that Mukesh bought me a pair of pyjamas as well,” laughs Salve, recalling how he was called to Mumbai suddenly from Orissa where he had gone for a day’s hearing. “I told Mukesh I had packed nothing. He insisted on buying me the essentials.”

It’s not the essentials as much as the frills that raise eyebrows. The veteran Jethmalani is surprisingly the most modest in his fees since he does not charge rates according to the strength of the client’s purse. But as the crises have multiplied, lawyers’ fees have exploded.

Harish Salve, 54- Landmark case: Won the gas dispute for Mukesh Ambani, though what he enjoys most is being amicus curiae in the Forest Case of T.N. Godavarman Thirumulpad vs Union of India and Others.- Legal Style: Is a master strategist. Gives a balanced argument rather than an aggressive, one-sided view.- Fee per appearance: Rs 2.5 lakh to Rs 3 lakh. For a full day, it’s Rs 25 lakh.- The indulgence: Drives a Bentley.
Ram Jethmalani, 87- Landmark case: Got the Jain Hawala case against L. K. Advani squashed; is currently defending former Gujarat home minister Amit Shah.- Legal Style: Argues forcefully. Has an acerbic wit.- Fee per appearance: Rs 5 lakh.- The indulgence: Has an indoor badminton court built in his MP bungalow that is the envy of Lutyens’ Delhi.
Mukul Rohatgi, 55- Landmark case: Represented Anil Ambani in the gas dispute.- Legal Style: Is a slogger. Argues aggressively and goes straight to the point.- Fee per appearance: Rs 2.5 lakh to Rs 3 lakh and Rs 25 lakh for a full day.- The indulgence: Drives a black Bentley, has Souza on his walls, a holiday home in Goa.
Majid Memon, 55- Landmark case: He represented Yakub Memon but could not set him free.- Legal Style: He argues in the court with his right leg on a chair.- Fee per day: Rs 10 lakh. Charges Rs 2 lakh for a bail application.- The indulgence: Likes to travel, makes frequent trips to exotic locations.
Satish Maneshinde, 50- Landmark case: He secured bail for Sanjay Dutt in the Bombay blast case and for Salman Khan who allegedly killed one person while driving drunk.- Legal Style: Argues calmly in court and looks straight into the judge’s eyes.- Fee per day: Rs 10 lakh.- The indulgence: His Mercedes and a passion for Page 3 parties.
Aryama Sundaram, 53- Landmark case: Represented the West Bengal Government against Haldia Petrochemicals and UBS Securities against sebi.- Legal Style: Persuasive speaker, argues his case in a measured tone.- Fee per appearance: Rs 3.5 lakh
Arvind Datar, 53- Landmark case: Was one of the lawyers in the Vodafone vs Income Tax case.- Legal Style: Says one lesson he learnt is to never antagonise a judge. It’s not only your bread and butter but your client’s life.- Fee per appearance: Rs 50,000 to Rs 5 lakh.- The indulgence: His first car was a Toyota Corona in 1990. Now he drives an Audi. Has penned a three-volume commentary on Constitutional law.
Abhishek Manu Singhvi, 51- Landmark case: Won the right to fly the tricolour for Navin Jindal.- Legal Style: From logical in court to rhetorical flourish in Parliament to snappy sound bites for the media on tv.- Fee per appearance: Rs 2.5 lakh to Rs 3 lakh. For a full day, it’s Rs 25 lakh.- The indulgence: A limited-edition Visconti pen with a custom-made nib and watches from every luxury brand.

The 50 court hearings in the Haldia Petrochemicals vs the West Bengal Government cost the former a total of Rs 25 crore in lawyer fees and the 20 hearings in the Bombay Mill Case, which dragged on for three years, cost the mill owners almost Rs 10 crore. Large corporate firms, which engage star counsels on behalf of the client, also need to know their quirks.

For instance, Salve will only accept the first brief. He will never be the second counsel in a case. Some lawyers prefer to be paid partly in cash but the best are content with cheques. Some expect the client not to blink while picking up a dinner tab of Rs 1.75 lakh at a Chennai five star. A lawyer is known to carry his home linen and curtains with him while travelling on work. A firm may even have to pick up a hot Vertu phone of the moment or a Jaeger-LeCoutre watch of the hour to keep a lawyer in good humour.

Some are even paid to not appear at all for the other side – Aryama Sundaram was retained by Anil Ambani in the gas feud but he did not fight the case. Or take Raytheon when it was fighting the Jindals. Raytheon had paid seven top lawyers a retainer fee of Rs 2.5 lakh each just to ensure that the Jindals would not be able to make a proper case on a taxation issue.

They miscalculated when a star lawyer fought the case at the last minute. “I don’t take negative retainers,” shrugs Rohatgi, former additional solicitor general. “A lawyer’s job is to appear for any client that comes to him. It’s not for the lawyers to judge if a client is good or bad but the court.” Indeed. He is, after all, the lawyer who argued so famously in court that B. Ramalinga Raju did not fudge any account in the Satyam Case. All he did was “window dressing”.

Some high profile cases have continued for years, providing a steady source of income, from the Scindia succession battle which dates to 1989, to the JetLite Sahara battle now in taxation arbitration to the BCCI which is currently in litigation with Lalit Modi, Rajasthan Royals and Kings XI Punjab.

Think of the large law firms as the big Hollywood studios and the senior counsel as the superstar. There are a few familiar faces to be found in most of the big ticket cases, whether it is the Ambani gas case, Vodafone taxation or Bombay Mills case.

Explains Salve, “There is a reason why we have more than one senior advocate on a case. When you’re arguing, he’s reading the court. He picks up a point or a vibe that you may have missed.” Says Raian Karanjawala whose firm has prepared the briefs for cases ranging from the Tata’s recent right to privacy case to Karisma Kapoor’s divorce, “The four jewels in the crown today are Salve, Rohatgi, Rohinton Nariman and Singhvi.

They have replaced the old guard of Fali Nariman, Soli Sorabjee, Ashok Desai and K.K. Venugopal.” He adds, “The one person who defies the generational gap is Jethmalani who was India’s leading criminal lawyer in the 1960s and is so today.”

The demand for superstar lawyers has far outstripped the supply. So a one-man show by, say, Rohatgi can run up billings of Rs 40 crore, the same as a mid-sized corporate law firm like Titus and Co that employs 28 juniors. The big law firms such as AZB or Amarchand & Mangaldas or Luthra & Luthra have to do all the groundwork for the counsel, from humouring the clerk to ensure the A-lister turns up on the hearing day to sourcing appropriate foreign judgments in emerging areas such as environmental and patent laws. “We are partners in this. There are so few lawyers and so many matters,” points out Diljeet Titus.

As the trust between individuals has broken down, governments have questioned corporates and corporates are questioning each other, and an array of new issues has come up. And as the government has weakened, the courts have become stronger. The lawyer, says Sundaram, with the flourish that has seen him pick up many Dhurandhares and Senakas at pricey art auctions, has emerged as the modern day purohit.

Each purohit is head priest of a particular style. Says Karanjawala, “Harish is the closest example in today’s bar to Fali Nariman; Rohinton has the best law library in his brain; Mukul is easily India’s busiest lawyer while Manu Singhvi is the greatest multi-tasker.” Salve has managed a fine balancing act where he has represented Mulayam Singh Yadav and Mayawati, Parkash Singh Badal and Amarinder Singh, Lalit Modi and Subhash Chandra and even the Ambani brothers, of course in different cases. Singhvi is Sonia Gandhi’s go-to-guy on most legal issues, whether it is citizenship or filing a case against a publication.

Jethmalani is the man to call for anyone in trouble. In judicial circles he is known as the first resort for the last resort. Even Jethmalani’s junior Satish Maneshinde, who came to Mumbai in 1993 as a penniless law graduate from Karnataka, shot to fame (and wealth) after he got bail for Sanjay Dutt in 1996. Now he owns a plush office in Worli and has become a one-stop shop for celebrities in trouble, from getting bail for Rakhi Sawant when a youth committed suicide after she called him namard (impotent) to representing Salman Khan in a drunken driving case.

With wealth come perks. In 1992, Karanjawala and Desai were chatting in the Supreme Court car park when former law minister Ashoke Sen zipped by in his Fiat. “What Ashoke, small car?” asked Desai to which Sen replied, “In Bangla we have a saying: known Brahmins need not wear the sacred thread.” Now the car park is filled with Bentleys, Mercedes and at the very least, an upmarket Toyota. The symbols of success include a holiday home in Goa, Souzas on the office walls, shopping expeditions to Bond Street (where they can expect to bump into other lawyers). As Salve says, “Only Brioni and Canali make boring suits for lawyers, the blacks and dark greys.” Also the pens, the watches, and in Arun Jaitley and Rohatgi’s case, the jamewars. Then there is the public profile, amplified by talking head status on tv channels every other night.

Most of the prized lawyers such as Salve, Jethmalani, Sundaram and Rohatgi do some pro bono work as well, if the cause is right. But in all this, the pil bar has come crashing down, upheld only by men such as Rajeev Dhavan and Prashant Bhushan. “I subsidise my pil work by taking on commercial cases, which I needed when I had to send my daughters to study in the US,” says Dhavan. In many cases, it’s the take-off point for a job in the government like Indira Jaising’s work with Mumbai’s homeless pavement dwellers which has got her the additional solicitor general’s job. As Dhavan notes, the dense gravity of private marketing lawyering has created black holes in activist lawyering.

Says an angry Sorabjee, “To charge Rs 30 to 40 lakh per day is nothing short of extortion. It is no excuse to say that the client can afford it. Lawyers are professionals, not tradesmen in a market place. I get mad if a client says fees are no question. You think you can buy me? You can charge heavy fees but not extortionist fees.” The octogenarian constitutional expert charges Rs 2 lakh per appearance as opposed to the going rate of Rs 2.5 lakh to Rs 5 lakh charged by younger lawyers. Sometimes, if the court breaks for lunch at 1 p.m. and the matter has come up for hearing at 12.45, the lawyer even bills the client for two separate appearances.

In Mumbai, for instance, veteran criminal lawyer Majid Memon charges Rs 2 lakh simply for securing bail in a sessions court. There are those who recall him coming to the tada court in 1996 on an old scooter. He now drives a Mercedes. In Chennai, Arvind Datar charges anything between Rs 50,000 and Rs 5 lakh per appearance.

As for the chartered flights, they all claim that this is a necessity rather than a privilege. “The advocates come to us with that offer (of chartered flights). It’s not flaunting of power but the idea is to return the same day from a badly connected destination, says Singhvi, putting on his most earnest expression. Rohatgi complains of being claustrophobic on small planes. “During peak hours, chartered flights don’t get preference over commercial,” he adds with the jaded fatigue of a seasonal traveller.

There is a reason for this exorbitant fee structure. In recent years, the stakes in corporate litigation have hit the roof, as in the Rs 12,000-crore Vodafone vs the Income Tax department case. Moreover, the legal fraternity argues that when clients don’t mind paying investment bankers fees worth millions of dollars, then why are only lawyers coming up for censure? The fate of several crucial corporate battles hangs on the slender thread of which matter is listed before which court and which lawyer would work there. “Why should we earn less than the CEO of a big corporation?” asks Sundaram. Except that this CEO often goes on to become a minister in the government-law as a profession offers immense mobility-and deal with the same organisations he once represented.

Most corporate bosses also have their legal favourites. For instance, Nusli Wadia’s favourite lawyer is Fali Nariman who hates “skullduggery”; ITC’s was Desai but he has since been replaced by Salve; the late Madhav Rao Scindia’s family favours Singhvi. Of course, the Ambani brothers too have their chosen legal soldiers: while Anil’s first choice is usually Rohatgi, his brother opts for Salve. As does Ratan Tata. The Birlas go with Sen. Many have created mini-dynasties, whether it is Singhvi, Salve or Rohinton Nariman.

“Sometimes, it’s the thrill of the forensic complexity that counts, not winning or losing,” says Singhvi. He recalls how during the Ambani gas case, a friend called and asked him, “The stocks are fluctuating wildly. You’re the oracle: which way will it go?” Singhvi laughed and said he had no idea. Salve agrees. “Mukesh called me that morning and said we have done our best. The rest is up to God,” he recalls.
However, Rohatgi who appeared for Anil says, “I had a premonition we would lose. But Anil thought otherwise.” Salve adds, “After the judgment, Mukesh was too choked to speak. Nita said they had one more request. I should handle the media. She said, Harish bhai bahut negativity ho gaya. There should be no loose comments.” Clearly a lawyer’s brief is not just limited to courtrooms.

Ironically, it was during the Battle of the Brothers last year that Salve told the Supreme Court how Mukesh Ambani had told him about the millions of dollars demanded by laptop consultants just to create holding companies, resulting companies and other such complexities. Quick to retort, Rohatgi had quipped, “Is this how Salve justifies his high fees?” Grinning, a sheepish Salve said, “I plead guilty on my behalf and on behalf of my colleagues.” But it was Justice R.V. Raveendran who had the last word, “The only difference between Salve and the consultants is the laptop.” And perhaps the Bentley, the BMW and the Mercedes.