Q. In 2013, at just 23 years of age, you secured the first rank in the prestigious Delhi Judicial Service Examination and joined as the youngest civil judge/metropolitan magistrate in your batch. Why did you want to become a judge and how was your experience during the four years of judgeship?
In the initial few years at law school, I hadn’t thought of being a judge; I shared the prevailing stereotype that one doesn’t get to be a judge unless one is in 40-50s and has more salt than pepper in their hair. I had never imagined I’d be a judge at 23. What I did aspire for, always, was being good at law. I had grown up with the sights and sounds of law, as my father was a lawyer. I hold the dubious distinction of being the only kid in school who, at the age of 6-7, threatened his school principal of an action for defamation, given the fact that the principal had “lowered me in the estimation of the right thinking kids of my age”. I also used to challenge power assymetries a lot; I once told my dad, at just about the same age, to go fight someone his own age so that it’s a fair concept. All of this because of the ring side view of law at a very early age.
The lawyer in me was inspired by great stalwarts at the bar like Clarence Darrow, Fali Nariman, Alan Dershowtiz, Nani Palhkiwala. I also read great Judges like Justice Chinappa Reddy, J. Krishna Iyer, J. P.N.Bhagwati, Lord Denning, Oliver Wendel Holmes, Lord Atkin & Justice H.R.Khanna, amongst many others. They inspired me a great deal. I was fascinated with how these judges breathed life into the dead letters of law, fashioned remedies and did substantial justice. During this time only, I first got enamored with the idea of being a judge. It was a beautiful opportunity. A service that allowed one an enormous ability to correct injustices, contribute to the evolution of law, and at the same time, quench one’s penchant for writing. I started studying for the exam, alongside law practice. I also took preparatory classes with Mr. Rahul Yadav of RahulsIAS (fondly called ‘Rahul Sir’) at Mukherji Nagar, Delhi. The time at his classes did wonders and really helped me build a strong conceptual base and made my job much easier. I also started teaching my juniors in whatever time I was left with after court, classes and my own studies. It dawned on me that the best way to master a subject is to be able to teach it. All in all, I used to spend at least 10 hours a day either studying or teaching.
Armed with about a year of preparation, I appeared for the Delhi Judicial Service Examination (in short ‘DJS’). To give one a fair idea: DJS exam is not rote based exam and is based on real life cases, involving extremely vexed questions of law; issues that have arisen in the recent times before the courts. The examination has the distinction of being the toughest judicial service examination in the country, and also the most sought-after. This can be gauged from the fact that of about 10,000 people who took the exam, only 33 made it to the final list.
At 23, I took the oath of office on 28th May, 2013. The text still sends adrenaline rushing down my system, each time I read it, and the text will be incomplete if I don’t reproduce it in full :-
“I, Bharat Chugh, having been appointed a judge, do solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established; that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of ability and knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the constitution and the laws. “
After the completion of one year of training, my batchmates and I were poised to take up independent charge, with full zeal and enthusiasm.
I took over my first judgeship assignment in June, 2014 as a Metropolitan Magistrate (NI Act), Tis Hazari. Life had come a full circle, so to speak; My father had started as a typist in Tis Hazari only, roughly four decades back, and I also began my career from here only as a judge. He was ecstatic to say the least. I had fulfilled the promise that I had made to him.
I worked in my first assignment for one and a half years. It was one of the heaviest courts with over 5,000 cases; I disposed of about 3,800 cases in the first one and a half years. I tried to implement new court management strategies, and ended up increasing my disposal quantitatively as well as qualitatively. During this time, I also kept working on articles/papers and also made a reference to the Hon’ble High Court of Delhi on a question of law relating to ‘Mediation/ADR in Criminal cases’. The reference was subsequently entertained, amici appointed to assist the court and I received a commendation for the same from my learned seniors.
During this time, I also acted as a Railway Judge, for a brief time, as an additional charge (called the link judge), where I was aghast to find that young men and women were being prosecuted for begging/selling tea on the railway platform under an archaic provision of the Railways Act. This was a classic case of, what one author calls, ’Criminalisation of the Poor’. The sight of these unfortunate people mired in poverty, and disowned by the State moved me a lot. I gave voice to my anguish in one of my poems called the ‘Confessions of a young judge’, but more on that some other time.
In 2016, I took over my second assignment as ‘Metropolitan Magistrate (Traffic)’ and was entrusted with the task of trial of traffic-related offences.
I finally took over as a Civil Judge in Tis Hazari and had a fascinating stint. I faced some of the most vexed legal questions relating to property/commercial/contract law during my tenure here. Whereas criminal side (where I had been for long) required one to think on his/her feet, civil law was relatively relaxed but extremely challenging all the same, considering the wide gamut of issues that one is faced with. Soon, I discovered a new found appreciation for social justicing. As a Magistrate working on numerous snap ‘bail or jail’ judgments often thinking on one’s feet, that too many times over in a day, I approached every such application with the same zeal, always keeping in mind the importance that a single bail application can make to a life. And each decision impacts lives on an unimaginable level. One is often vexed with the classic balancing act between the presumption of innocence on one side (liberty), and State’s impassioned argument of law and order (public order perspective), on the other.
Picture the crucial decision of granting or denying an injunction; an injunction against the demolition of a house in a slum somewhere in outer Delhi. To injunct or not to injunct! Imagine – the plaintiff’s daughter is getting married next week and an injunction for a week would help the family sail through this crucial time, but the plaintiff, even though he may have the balance of convenience tilted in his favour (and an excellent emotional appeal), he has little to show for a title. What do you do in such a case? Pure legalism, or law tempered with compassion.
Here, I was assisted by some very competent counsel, who used to appear before me and taught me a lot.
Q. Why did you decide to quit judgeship and start practicing law?
I was fortunate to have cleared the examination in my first attempt and really enjoyed my stint as a judge. If I may add, with a touch of immodesty, I ended up doing a lot of good but somewhere along the line, I realized that I really missed the feel of being a lawyer. My dad was a lawyer; I’ve personally always connected to the idea of being a lawyer more than anything else. That’s who I really am. That’s what I associate more with. I’ve always loved arguing & persuasion, and on a balance, I thought – I am more suited to being a lawyer than a judge, at least in my initial few years where the experience at bar is crucial and goes a long way in shaping one’s self. Practice of law, in some ways, is a wider canvas and allows a greater diversity of work.
All in all, after a three and a half year and a rather fulfilling stint at judging, I decided to once again return to the practice of law. I sorely missed being able to practice law in the last three and a half years. I also love to write and grappling with legal issues that one doesn’t have exposure to, at least, in the initial few years of judgeship. This was the thought behind leaving judgeship and there’s never been a moment of regret, ever. I have had the great fortune of working on some of India’s most complicated and biggest cases in the last three and a half years and there’s never been a dull day or a day of regret. Being a lawyer is challenging, fulfilling and extremely rewarding.
Once a lawyer, always a lawyer as they say! I also missed being able to write and teach. Having fulfilled the promise made to my father, I had certain promises to keep with myself and this was but the first step in that direction. Whether I’ll be able to redeem those promises is something that time will tell. But, for now, as Shakespeare would say, there is method in my madness!
Q. As Partner at L&L Partners, you work on a very wide range of legal issues. You have served on various prestigious committees, including the Delhi High Court Committee on Arbitration, and are currently serving on the Young SIAC (Singapore International Arbitration Centre) committee. The Arbitration scenario in India faces criticism for not being up to the mark especially in comparison to some other countries. What do you have to say about the Arbitration mechanism in India and its comparisons to countries like Singapore, London, etc.?
ADR is definitely the way forward. There has been a huge emphasis on mediation and arbitration in the recent times and for good reason. In the context of arbitration, ‘The United Nations Convention on International Settlement Agreements Resulting from Mediation’ or more conveniently, the Singapore Mediation Convention, is a huge step forward. India is, in fact, one of the initial signatories of this convention, having ratified it in August 2019. The Convention gives legitimacy and sanctity to mediation settlements and makes them enforceable in the same way as an international commercial arbitration award. The Convention allows parties to a cross-border mediated settlement agreement to directly seek enforcement of the settlement agreement before the competent authority of a country, without facing the challenges associated with incorporating the terms of settlement in an arbitral award or judgment.
The 2019 Amendments to the Arbitration and Conciliation Act are a welcome change and addition to the law already in place. There are some concerns on the constitution of the Arbitration Council of India (ACI), with the government being the biggest litigator on the one hand and having a say in the accreditation of arbitral institutions and gradation of arbitrators. However, the move towards institutionalization is welcome. Indian arbitration has suffered from ad hoc-ism for a long time which turns out to be costlier than institutional arbitration. In my opinion, moving towards institutions would not only provide a better framework to Indian arbitration but would also provide a huge impetus to formation of a dedicated arbitration bar in India. If you look at the SIAC (Singapore International Arbitration Centre) statistics, India is one of the biggest consumers of SIAC and what the amendment seeks to do is to create a robust arbitral institution within the country. This intention of the legislature to promote ADR is being met, with judicial intervention and activism becoming a thing of the past.
Speaking of comparison with other arbitral regimes, the 2019 Amendment Act by way of establishing New Delhi International Arbitration Centre (NDIAC) with an organized governance structure seeks to replace the outdated International Centre for Alternative Dispute Resolution (ICADR) and lay a strong foundation in the institutional arbitration setup in India. The setting up of NDIAC certainly qualifies as a step in the right direction, but for it to be a giant leap for institutional arbitration in India there are further changes required and for that an investor friendly procedural framework must be adopted. SIAC, LCIA, VIAC, even HKIAC, are giants in the field of international institutional arbitration. NDIAC has the benefit of hindsight and can stand on the shoulder of giants like the SIAC and HKIAC, which have become a hub for international arbitration in such a short period of time, especially as far as the economic landscape of Asia is concerned. However, the growth of any such institution in India is dependent on multiple complimentary factors which foster the practice of arbitration. SIAC, for example, grew by leaps and bounds because of having a national policy of minimal intervention of the Courts – one where Courts support and facilitate arbitral tribunals and do not aim to displace them.
Further, courts in Singapore are also understood to be highly competent and quick when it comes to grappling with complex questions of international law, treaty interpretation, and international arbitral jurisprudence. In fact, one of the recommendations in the B.N. Srikrishna HLC Report of 2017 was the creation of specialist arbitration benches, with judges trained in arbitration law and practice, just as it is the case in Singapore, Hong Kong and the UK.
There are other policy measures which the Government must undertake in order to directly attract arbitrations to the jurisdiction of India and also to incentivize foreign professionals by reducing their barriers to enter and to participate in not only international commercial arbitrations seated in India but also local arbitrations. Singapore, for example, incentivized participation of foreign professional by relaxing their visa norms.
One huge advantage which India has, as a country, is the use of English as an official language. The growth of HKIAC and SIAC, if one pays close attention, is also due to how welcoming these two countries have been for international practitioners and corporates when it comes to dispute resolution as far as prominent usage of English language is concerned.
Q. You wrote a very moving poem about a tea seller who was repeatedly caught by police for selling tea in trains without a licence, and you saw that as a travesty of justice. In your poem, which was appreciated by Justice Muralidhar (formerly of the Delhi High Court), you talked about your “vexed conscience” as a result of coming across helpless, defenceless people being in conflict with the law. Could you talk about some other experiences where you may have felt that your actions or decisions as a judge or a lawyer, while being in consonance with the law, had an adverse effect on your conscience?
As I mentioned in a previous question, I was aghast to find that young men and women were being prosecuted for begging/selling tea on the railway platform and I gave voice to my anguish in one of my poems called the ‘Confessions of a young judge’.
This gave me sleepless nights and I had to find out a way to help them, of course within the framework of law. The relevant provision in the Railway Act clearly prohibited such an activity; however, convicting them will amount to me being a court of law and not a court of justice. Taking cue from Justice B.D. Ahmed’s remarkable judgment in Ram Lakhan v. State (2006), I dropped proceedings against many of these people, invoking the doctrine of ‘necessity’. I ruled that: A person was excused from the crime of begging if he begs in order to save himself from starvation and a certain death. I wrote, with great anguish, that if the so-called welfare state could not provide basic necessities for these people, it had no right to prosecute them. These orders were never challenged by the State before the higher echelons, which was undesirable insofar as a judgment by the High Court on this point would have had a wider coverage and could have provided a much-needed security cover to these forgotten souls and benefits would have trickled down on a much wider scale.
In another case, during my second assignment as a ‘Metropolitan Magistrate (Traffic)’, I was faced with ‘imprisoners’ dilemma’. On whether to send a person to jail or not. Deterrence versus Reformation. Societal Defence versus Second Chance. It is worth reiterating the importance of a single bail application to the life of an accused. This posting allowed me to work on sentencing innovations, and I passed community service orders in a variety of cases. This served a twin purpose: firstly, it prevented a first-time offender from being exposed to the deleterious effects of jail life and stigma of a jail sentence, and at the same time, ensured that he is not let off scot free and contributes to the overall health of the society, in some way or the other, as a useful citizen.
While the adversarial system envisages the judge as an impartial arbiter, the reality is less simple and only seldom there is a level playing field. Deeply pervasive inequalities and power imbalances – on account of sex, caste, gender & class often result in a totally asymmetric judicial system, skewed against the Davids and in favour of the Goliaths. The need for an effective & impartial investigation, therefore, can hardly be overemphasized: to check not only unmerited acquittals, but also unjust prosecutions.
In this, the magistrates have to drop minimalism as the ruling mantra, and pro-actively act as the protector of rights (especially the weaker sections) and correct wrongs. Magistrates being judiciary’s first interface with the public at large, and the courts of first resort, ought to jealously guard personal liberty and constitutional rights and have a greater responsibility on their shoulders.
Q. You are also very passionate about pro bono lawyering. Tell us about some of the pro bono cases you have worked on.
I have had the opportunity of being appointed as amicus curiae by the Hon’ble Delhi High Court and went on to represent a number of unrepresented defendants in serious criminal cases as a ‘friend of the Court’ before the Hon’ble High Court of Delhi. I got a chance to argue in as many as 12 serious criminal cases on a single day and assisted the Hon’ble Delhi High Court (hearing Criminal Appeals) in deciding a huge number of criminal appeals on a single day, thereby helping the court set new standards of efficiency, while at the same time – ensuring competent legal representation and a fair trial for these defendants who could not afford proper counsel.
We do quite a few pro-bono cases but, I feel that I’m still not giving back enough. So, I provide training to young judges and IPS officers at various academies; I also try to work with judicial service aspirants, try to guide and help them traverse their journey from studying to judging – and from judging to justicing.
In addition to that, I have also been regularly contributing to various legislative discussions, law reforms, law enforcement training’s, etc.
Q. You like to teach and mentor aspiring future judges. What kind of advice do you give them?
The first piece of advice that I give to any aspiring judge is to ask themselves ‘WHY’ do they want to be a Judge? As someone wise said (probably my mother) if you have figured out the ‘WHY’ of doing something, you’ll figure out the ‘HOW’ of doing it any ‘HOW’; this is exactly why the ‘WHY’ is important and a great place to start with.
To any aspiring judge reading this, no consideration be it a power-kick or desires of a ‘stable source of income’ would help you more than a belief in a higher purpose. A purpose bigger than you; bigger than your narrow interests and fears. A loftier ideal like the ‘the ability to dispense justice’ or ‘make a meaningful difference to people’s lives’ should be your anchor; your guiding star. A fine sense of justice and a heart that bleeds for the underdog should inform you at all times in your journey towards being a judge, and thereafter. Each injustice should rankle you and make you want to correct it. Look at yourself like a Justice Task Force of sorts. Always remember, no one in the entire judicial system has a bigger interface with the layperson than the Civil Judge/Metropolitan Magistrate at the nearest District Court. You, my friend, are going to be the brand ambassador of the justice system for close to 90% of the population.
I must also add that this, by no means, is an exhortation for a judge to be a knight errant, pursuing his or her own sense of what is ‘just’, without the slightest regard to law and precedent; No need to do justice ‘though the heavens fall’. Let’s be fair – Justice would mean little if the heavens do actually fall. A sense of proportion and balance, therefore, is extremely crucial.
Preparing for the exam, on the other hand, is another beast altogether.
An advice I always impart to the aspirants is that of starting early and honing your understanding of the subject. Once you decide to give it your all and devote yourself to excelling at law, everything else will follow. One’s focus should be on grasping the essence of the law and to read all the related/associated laws, in order to attain a comprehensive understanding on that issue. Every minute is precious, to quote Kipling’s expression – ‘fill each unforgiving minute with sixty seconds worth of distance run’ and you’ll go a long way
However, as has rightly been said, “It is as much in the saying as it is in the ‘said”. ‘Words’ are the first and foremost stock-in trade of a great lawyer/judge. In order to excel as both from the point of view of an examination, and penning down a piece of legal writing, a command over the language and an understanding of the nuances and subtleties of different legal words. A judicial services aspirant cannot be callous or reckless in the use of her words.
A word, at the end of the day, is an idea. Having an expansive vocabulary means having a wider grasp of ideas and having more ideas. Each word carries a precise meaning and usually no other word can replace it and do the trick. Having an expansive vocabulary means having a wider grasp of ideas and having more ideas.
Q. Do you think the coronavirus-induced lockdown has been a blessing in disguise for the initiation of bringing technology into courts, which could in the long run make the judicial system more efficient?
Currently, each one of us is grappling with the pandemic. There is also a silver lining to things depending on whether you see the glass half full or empty. Personally, I see it as half full as it has made us capable of working remotely, building technological infrastructures and we are becoming more efficient in doing things. It all depends on our approach to this – how we are taking and how willing we are to grow.
In hindsight, Bill Gates sometimes in 2015 warned us about this and we have failed in our duty of preparing better.
But sometimes, we learn the hard way. It is important for us to learn a lesson and adapt once over. For young graduates, anxiety due to employment prospects is growing. Most lawyers and law firms have kept up their commitment of hiring and providing virtual internships. Many lawyers and partners have decided against taking their equity in order to pay the dues and to provide their employees with pay. Fortunately, people continue to show empathy and concern towards each other in these difficult times.
Few years ago, people thought that the M & A sector wasn’t doing too well, people thought economy has taken a down turn. People were not investing and businesses were failing. NPAs were rising. Even in that state of financial doldrums, there was IBC which came up as a big practice area; financial fraud/white collar crime also saw a huge rise and flourished as a practice area.
Litigation/legal work will continue till human species exist. The work form and nature may change but opportunities will always be there and we lawyers are a resilient species and are great at adapting and evolving.
Q. How would you describe your professional journey so far? What are your future plans?
I fulfilled a promise that I made to my father by becoming a judge in the same court where he was a typist but somewhere in the back of my mind, I thought litigation would give me a wider canvas to work with, at least in my initial few years. Being a Lawyer is challenging, fulfilling and extremely rewarding.
I know broadly in terms of what I am going to do but it is not specific. Firstly, I feel guilty about leaving judgeship for personal ambition when I did. Not guilty in the sense that I have any regrets but guilty in the sense that I do not continue to give back the way I possibly used to do or the way which I used to do.
As I love to say I get to live vicariously through judges who I’ve had the opportunity to work with and through teaching, at some point or the other. That gives me a lot of satisfaction. Having contributed to nation building by helping make good judges.
Currently, I am working on a book related to ‘What and how is it to be a young judge, and what is judge’s life’, the idea is to put young students into the judges driving seat and share everything that I can on preparation, exam process, the expectations from a young judge, the kind of work and how to deal with it, both pre-preparation and post selection. This will not only help the young lawyers to decide about whether to be a judge or not but also help them along the way.
I am always keen to work on my cases; these are exciting times to be a lawyer; my practice of law straddles practice areas as diverse as: White collar crime, International Commercial Arbitration and Tech law, with a bit of advisory thrown in. There have been interesting developments in all of these areas of law and I am looking forward to seeing what the future holds for each of these; White collar crimes and financial fraud have flourished in recent times as the nature of crime itself is changing in an increasingly globalized world, Arbitration continues to hold my interest as people are, to be honest, sick of courts and I do think COVID-19 will help accelerate this process of motivating people to go for not only arbitration but also pre-mediation and other ADR mechanisms as well and lastly the emerging interplay of law and technology for the simple reason that technology is changing every conceivable legal vertical be it self-driving cars, AI, virtual currency or data theft, it is an exciting time in tech-law for sure. It makes for an interesting blend and though it always keeps us on our toes, it is also extremely rewarding individually to be able to work at such a wide canvas and contribute.
Q. What do you like to do in your free time when you’re not working?
Although, I faced a series of setbacks as far as a conventional education was concerned, I did acquire the habit of reading in my college days. I had realized by then that language was not only a source of pleasure and learning, but the only salvation. Language (and knowledge that came with it) was power. It had dawned on me that the most successful people in the world thrived on information asymmetries. I started on a reading frenzy and devoured whatever I could lay my hands on. A book to me, was the opportunity to get into somebody else’s skin, walk the town in it, and not just the skin of any person, but the best thinkers that the world has ever produced.
I also enjoy playing soccer whenever I find the time to kick the ball around. I also like to write short fiction and poetry. Though, I like to call myself a ‘closet poet.’ And once you hear me – you’d agree that’s where I should be – because it’s not good at all.
Bharat Chugh graduated in law in 2011 and in 2013, at the age of 23, he secured First Rank in the prestigious Delhi Judicial Service Examination and joined as a Civil Judge /Metropolitan Magistrate. He served in various civil and criminal judgeship assignments in about 4 years of judgeship and left judgeship at 27 to return to the practice of law. As a Partner at L&L Partners, Bharat advises and represents clients on a wide range of issues with a strong focus on International Commercial Arbitration, White Collar Crime, Anti-Corruption and Anti-money Laundering Laws, Complex Contractual/Commercial Litigation, Constitutional matters, Private International Law, MLATs, Extradition and issues relating to Cyber-Crime/Security, Artificial Intelligence, Big-Data and Social Media. Bharat is also passionate about writing and teaching and works extensively with young judges/law enforcement in training programmes. In his free time, Bharat loves to read, dabble with poetry and play football.