Q. You have had the opportunity of working with some of the most renowned corporate law firms and organizations. What motivated you to join the Bar and start litigation?
My father, before becoming a Government teacher, was a lawyer in a small district in the State of Madhya Pradesh called Panna. He had to join the school as a teacher due to the delicate financial conditions of my family. He was a brilliant orator. He always made me participate in various speech and debate competitions right from Class 2. I remember an anecdote of my Class 11 when for the first time I got an opportunity to wear black gown in order to perform an act, where my role was that of a lawyer who represents the ‘Trees’ against the ‘People’ who cut them for their own survival. I being a lawyer had to tell the mock court as to how to strike a balance between the ‘fundamental right to life of humans’ and the ‘rights of trees’ on which the entire ecology is based. I did well and succeeded in that. That was the grand magic of the black gown, which never subsided in my life. Further, most of my internships were in courts. When I was interning in Supreme Court in my 4th year of law school, I got an opportunity to witness Mr. Harish Salve arguing a matter from 10.30 A.M. to 4 P.M. In short, that day I actually witnessed the power of the black gown and that cleared my doubts in choosing the bar over various firms and organizations.
Q. What sort of cases do you handle? Can you share any memorable case with us?
I handle a wide range of cases dealing with various issues including scams, white-collar crimes, anti-competition, environment, complex contractual matters and Constitutional matters. I think what sort of cases one handles depends majorly on the clients. In the beginning of one’s career in practice, one must get exposure to all kinds of matters specifically matters before the district courts. When we start practicing law, we do not choose our area of practice and expertise but it’s our clients who choose it for us and in which we have to blazingly display our bravura before the court.
I would like to share one particular case, which really tested my hard work and passion for this profession. It was my first big case, which I got by god’s grace merely after seven months of my practice. I had a very small office in Pocket -2, Mayur Vihar Phase-I, Delhi. It was the evening of 12th of February 2016, when around 8 to 10 people entered my office and told me that the Government of Delhi is cutting thousands of trees in the green belt area of Sector 15-16 Trilokpuri in order to build flats for the people whose land has been seized by Delhi government for the Nizamuddin Metro project. Those 8-10 people discussed their woes with me. Those people explained to me that since the matter is listed in the high court for final arguments on 14th of February, they wanted me to file a matter before National Green Tribunal on 13th of February and also file an impleadment application before the High Court on 14th February.
My clients told me that since they were unable to get other advocates to file the matters in such short duration in reasonable amount of fee so they have approached me. They further asked me if I can file the case in such a short duration before NGT and in the High Court. I saw an opportunity here and without thinking twice said “Yes”. That time I had no experience of filling Original Application before NGT. I had no format of the Original Application. They gave me around 300 pages of representation and other notices in Hindi. I enquired about the format of Original Application with other friends, they said they don’t practice before NGT. I knew that I had only 12 hours to read 300 pages in Hindi, find out the relevant documents and draft the matter in order to file before NGT. I read the file till 5 AM the next day. I thought it is impossible to complete the same. I thought of giving up. I was quite broken. Then I realized that god is taking a test of my hard work and passion for the profession. I again started working and completed the draft by 10 AM without any sleep. I filed the matter before NGT after serving the copy of the case to five different counsels on the other side. I mentioned the matter and after fearless arguments secured the stay from NGT on the same day. Next day again I could not sleep because I had to file an impleadment application before the Hon’ble High Court. I filed the application just in time and it was allowed by the Hon’ble High Court. The bench, after giving me a patient hearing, held that it is the duty of the Government to provide home to the aggrieved persons but not at the cost of cutting trees.
Through this case I met many people of my local area and I started getting independent clients to fight for. I have shared this case because such moments which I experienced come in the lives of most litigating advocates. However, many of us give up at the crucial moment. We must realize that when our mind is asking us to give up, that is the time to pick yourself up in the race and run like no one can. It’s the kind of pain which I bore during those two nights that takes young advocates ahead in this profession.
Q. How important do you think it is to practice in the lower courts before one starts practicing before the High Courts or Supreme Court?
I will not say that practicing in the lower courts is important but I will say that practicing in the original side or original court is important. The original side depends on the field one chooses to practice. Suppose if one practices in the area of electricity law in Supreme Court, then one is supposed to know original side proceedings of electricity commissions. If one wants to practice in service matters, one must have experience of CAT. However, if one wants to practice in Civil and Criminal side, then one must have the knowledge of the intricacies involved in the trial before lower courts. Trial courts teach us the real value of facts. In trial, one can develop the factual narrative of the case as per one’s wit and fill the gap in evidence, which is not possible in higher courts. Learning the art of cross-examination in trial courts gives the satisfaction of being a complete lawyer for whole life. It is to be noted that one small mistake in trial court has the caliber to plummet a great case even in the higher courts.
I would like to share my own case for this purpose. One of my clients, whom I am representing before the High Court, filed a probate case before the probate court. In that case there were two issues. First issue was that whether Will as produced by the Petitioner is forged. Second issue was that whether the Petitioner has proved his Will. The advocate who was directly practicing in the Supreme Court was representing my client at the Probate Court. When the witness was called for cross-examination, the Counsel for the other side asked the witness to find out the Will and identify his signature. The witness, immediately after seeing the photocopy of the Will identified the photocopy as original and identified his signature, though the original Will was available in the file. Here, Counsel of my client before the probate court, did not raise any objection. Consequently, the probate court held that though the Will is not forged but Petitioner could not prove the original Will as per Indian Evidence Act and thus, dismissed his case.
Thus, according to my limited understanding, learning the ropes of litigation is important. Practicing before original courts gives one the different perception of dealing with facts and law before the High Courts and Supreme Court.
Q. What do you think is the biggest challenge that is faced by our Indian judiciary and how can we improve the system?
The biggest challenge faced by the Indian Judiciary today, stating in terms of Covid-19, is to bring back the judicial system as it was before the said pandemic. If stating not in terms of Covid-19, then the biggest challenge for Indian Judiciary is to dispose of the huge backlog of cases after giving full-fledged hearing to the parties of the case. As per PRS report as of August 2019, there are over 3.5 crore cases pending across the Supreme Court, the High Courts, and the subordinate courts. Of these, subordinate courts account for over 87.3% pendency of cases, followed by 12.5% pendency before the 24 High Courts.
The primary reason of pendency is the vacancy of judges in the Indian Courts. As per the Court News of January-March of 2018, Page No. 6-7, as published by the Hon’ble Supreme Court of India, as of 31.03.2018 the High Courts have 409 vacancies against a sanctioned strength of 1,079 judges and subordinate courts have 5,369 vacancies against a sanctioned strength of 22,780 judges. In order to improve the system there is a dire need of the appointment of meritorious judges and to provide them apt training and proper infrastructure to deal with such situations.
Q. You are doing a very noble work of teaching underprivileged students, preparing them for the competitive law exams through NIEV Judicial Education. Could you tell our readers more about NIEV Judicial Education?
The journey of NIEV Judicial Education has direct nexus with my past. As my father was a teacher in a Government school, I had to take education loan to complete my course of B. A. LL.B. Thus, I understand that how difficult it is for the students to study while having to worry about loans. Many students take loans with the hope that they will get a good job and thereafter they will be able to repay the loan. However, many a times it does not work like that. I have seen many students undergoing stress when they don’t get a job after passing out of college specifically when they have taken loans. Further, some of them who are really meritorious and want to become Judge, ADPO or want to write other competitive law exams, neither they nor their parents have any resource to pay the hefty fees of Coaching institutions after paying for the 5-year law school. It was an astonishing fact for me to know that coaching institutions for the preparation of Civil Judge and other competitive law exams charge more than Rs 2 lakh per course. There is complete commercialization of the coaching institutions in India. Moreover, it is abstruse to take loans for studying in coaching institutions. Though, there are few financial institutions which offer education loans for coaching also but the same is at a very high interest rate. In these situations, to maintain equality among the students and to provide needy the equal opportunity, I along with Mr. Vinod Sharma (My mentor) founded the NIEV Judicial Education. Here we give hundred percent scholarships to students who have the caliber but are not able to afford the fees for coaching institutions irrespective of their caste, religion, race and tribe. Further, there are many students who want to start preparation for judiciary from their college days itself but as most of the coaching institutions teach from Monday to Saturday, it becomes impossible for the college students to attend these classes due to their hectic schedules in college.
At NIEV many students from various colleges attend our classes. The classes are conducted only on Saturdays and Sundays from 1 PM to 6 PM. At NIEV we are deeply committed to delivering comprehensive legal education for the competitive law exams. Our paramount objective has always been to provide an unfeigned support to the aspirants preparing for these competitive law exams and helping the society and country to get the best talent available. In order to achieve this goal, we focus not only on the theoretical knowledge but also provide the aspirants the in-depth practical knowledge of all the procedural subjects, which also include certain numbers of court visits, which experts consider inevitable for cracking the interview. We also have another team of experts who make students drudge and toil in their English foible and help them in mastering the language i.e. English to Hindi, Hindi to English translation, Legal Words used in judgment writing, personality development and boosting the confidence to crack the exam.
Q. You have authored a book titled ‘Iudexcracy Vs Democracy: Revisiting Fourth Judges Case’ which is on the NJAC verdict. In 2015, the Supreme Court of India struck down the 99th Constitutional Amendment Act, 2014 and NJAC Act as unconstitutional. Is your book a critical analysis of the verdict? Could you share with us some key highlights of it?
My desire of contributing to this work goes back to even before this matter came up before the Apex Court. I as a law student always had a deep interest in the field of Constitutional law. I, with the help of my college seniors, started writing articles and presenting papers right from my 1st semester itself. In the beginning of sixth semester, my team participated in a moot court competition where the problem was based on Judicial Appointment and NJAC. Later in my final year, I thought of extending the research on Judicial Appointments and NJAC through my dissertation. When I passed out of the law school and came to Delhi to practice law, I found that 99th Constitutional Amendment Act, 2014 along with NJAC Act had been passed in Parliament and the same had been challenged in the Supreme Court. My co-author (who was interning in Supreme Court at that time) and I used to watch proceedings every day from 10.30 AM to 4 PM. Amidst the legal stalwarts approaching the Bench with their delightful submissions and knowledge sailing from the determined arguments, we felt like lone islands on planet Earth where continents already existed to contribute immensely to this intellectual debate and making a remarkable presence of the vast experience they possessed crystalize in the form of submissions. While peeping in the court hall to witness the submissions made in Court Room No. 4, we were individually stuck with the thought of contributing in this debate as passionate law students for Constitutional learning, which eventually mushroomed into the idea of presenting our work in the form of a book.
Then, we were astonished to see the voluminous judgment consisting of more than 1,000 pages. However, we read it many times and after finding the flaws, we decided to critically analyze the same. The book analyzed the procedure of judicial appointment in other countries and compared the same with India. It sets forth the arguments for and against the basic structure doctrine and its genesis. It also explicated the arguments supporting the constitutionality of NJAC. The book lauded the dissenting opinion of Justice Chelameswar and called him an unsung hero because he was the only judge who fearlessly maintained in his dissenting opinion that there is “nepotism” in the judiciary.
Q. Due to this pandemic and the consequent lockdown, the Courts in India have been functioning through video conferencing. Do you think that technology in the long run could make the judicial system more dynamic and readily approachable?
I think it all depends upon the infrastructure for virtual proceedings available with the Courts, as we all know that till now many Courts in India don’t even have proper physical infrastructure. Look at the condition of the physical infrastructure of the small district courts of MP, UP and Bihar including the Tis Hazari Court of Delhi. Looking at the condition of physical infrastructure, it is difficult to think about virtual infrastructure in the same courts. The problem with most of us practicing in Delhi is that we only think for the use of technology in Delhi Courts. We ignore the hard-core realities of small districts courts of India. Let the Bar Council of India conduct a survey and find out how many district and session courts, land revenue courts, consumer courts and labour courts are actually functioning through video conferencing. Let it find out how many matters those courts dealt through video conferencing during lockdown. There is hardly any infrastructure for virtual courts in those districts and talukas. We should not be happy merely after seeing the infrastructure of the Hon’ble Supreme Court for virtual hearing. We have to see the prevailing realities of the District Courts. There is only one Additional District/Session Judge in each district of Delhi who is hearing the matters. The court, in toto does not have more than 40 matters in a day for video conferencing, whereas there should have been more than 300 matters. Interface is weak. Internet connection is lost while arguing the matters. There are voices of different advocates talking at the same time. Judges spend half of the time in keeping other advocates quiet and asking them to mute their systems. We don’t know how the urgency of the applications are being decided. We don’t know when the matter is going to be listed. In our country we don’t have good speed Internet. We must be futuristic in our approach but at the same time we must take into consideration the existing realities. Further, how can we expect from the government, which could not provide the courts the proper physical infrastructure in last 70 years to provide the virtual infrastructure at such a short notice. There are many challenges which makes it highly improbable to say that technology in the long run could make the judicial system more dynamic and readily approachable. Further, the answer depends how one defines the term “long run”.
However, the use of technology by the Supreme Court has made it more dynamic and readily approachable for clients and advocates outside Delhi such as Kerala, Kolkata, Tamil Nadu, Assam and Bihar etc. Now even they can argue the matter without missing the matters of their local courts. It has, this way, saved the expenditure and time of the clients and advocates.
Q. For the first time since its inception, the Supreme Court will have a single judge bench. Why do you think this historic notification has been made? Do you think this decision can reduce the burden of backlog cases to a great extent?
This historic notification, according to my limited understanding, has been made to reduce the backlog of cases. As per the Annual Report of 2018-2019 on the Indian judiciary, published by the Hon’ble Supreme Court of India, Page No. 82, there are 59,867 (Fifty Nine Thousands Eight Hundred and Sixty Seven) cases pending only in the Hon’ble Supreme Court of India in October 2019.
I also would like to inform that this is not the first time that the Hon’ble Supreme Court tried to constitute single bench to hear bail matters. That the then Chief Justice of India, Hon’ble Justice Mr. Y.V. Chandrachud had sent a similar proposal to the Bar as one finds in the provisions of the order VI rule (1) of the Supreme Court Rules, 2013 regarding rejection/dismissal of bail application by the Hon’ble High Courts. However, after prolonged discussions with the Bar, the said proposal was rejected. We must not forget that there is hardly any distinction between the single bench of the High Courts and single bench of the Hon’ble Supreme Court. In ninety nine percent cases, these are the same judges of High Court who got elevated to Supreme Court. Further, the matters of bail are completely based on the discretion of the court. As Justice Krishna Iyer in the case titled “Gudikanti Narasimhulu and Others versus Public Prosecutor, High Court of Andhra Pradesh, 1978 AIR 429 observed that
“Bail or jail?” — at the pre-trial or post-conviction stage — belongs to the blurred area of the criminal justice system and largely binges on the hunch of the bench, otherwise called judicial discretion.”
It is important to notice the words stated by Lord Camden in relation to the discretion of the Judge. He stated that:
‘The discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable . . .”
At this juncture, it becomes important that both the advocates and litigants must get the satisfaction of the Apex Court in inevitable matters deciding their life and personal liberty specifically where the result is based on discretion. I am not stating that the single bench of the Hon’ble Supreme Court will not use discretion in right manner but it’s all about the bonafide satisfaction of the litigant that in Apex Court the discretion was not used by one judge but by two. Undoubtedly, there are more chances of the use of right discretion where there two judges. Further, there are many other ways, which can reduce the burden of backlog cases to a greater extent. In order to reduce the backlog of cases, there is a requirement of ‘more number of judges’ and not ‘more number of benches’. More number of benches may make a small difference but may not make a substantial change in the figure of pendency of cases.
Q. How do you stay up-to date with all the latest legal developments?
In order to stay up to date with all the latest legal developments, I frequently visit the website of the Hon’ble Supreme Court which consists of the latest judgments delivered by it. Further, I have subscription of various online platforms such as LegitQuest, Live Law and Bar & Bench, which timely provide me the information of various judgments and orders passed by the Hon’ble Supreme Court and High Courts across the country.
Pawan Reley is an Advocate in the Supreme Court of India. He is a co-founder of VSPR Associates as well as of NIEV Judicial education. He assisted the Supreme Court in setting the law in ‘Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1’ through an intervention application immediately after passing out of the college and argued before a five-judge bench. He has written a book titled, ‘Iudexcracy VS Democracy: Revisiting Fourth Judges Case’. Mr Reley also assisted the Supreme Court in settling the law of Electronic Evidence Certificate enumerated under Section 65B of Indian Evidence Act.